THE TERMS AND CONDITIONS CONTAINED IN THIS “AGREEMENT” CONSTITUTE THE TERMS OF SALE FOR ALL SALES OF PRODUCTS (“PRODUCTS”) AND SERVICES BY MOROKU PTY LTD “MOROKU” TO CUSTOMER THAT PURCHASES HOSTING SERVICES FROM MOROKU (HEREINAFTER, “CUSTOMER”).
MOROKU RESERVES THE RIGHT TO AMEND THIS AGREEMENT FROM TIME TO TIME. BY PLACING ORDERS WITH MOROKU, CUSTOMER AGREES THAT THIS AGREEMENT FORMS THE ENTIRE AGREEMENT THAT GOVERNS EACH ORDER SUBMITTED BY CUSTOMER TO MOROKU.
In this Agreement, its recital and Schedule hereto the following words shall (unless the context otherwise requires) bear the following meanings:
“Additional Services”: means the services which Customer may select and which Moroku shall provide to such Customer and which services are set out in full in Schedule 2. Such Additional Services (if requested by a Customer) shall be specified in the Agreement.
“Affiliate”: with respect to a party hereto, any person or entity which directly or indirectly either (a) controls such party, or (b) is controlled by such party or by an entity which also controls such party, where such control results through ownership or control of shares or other agreements or arrangements regarding control.
“Application”: means Moroku ChoreScout which is licenced to Customer and as described in Schedule 1.
“Assistance”: means the facilities, resources and materials to be provided by Customer as defined in the Agreement.
“Confidential Information” means any information received by one party (the “receiving party”) from the other party (the “disclosing party”) and which the receiving party has been informed or has a reasonable basis to believe is confidential to the disclosing party.
“Documentation”: means manuals or other technical documentation as provided by Moroku which describe the operation of the System and the Hosting Services and which are listed in Schedule 1 or any permitted modified form thereof.
“End Users” means the Customer’s end users who will use the System.
“Environment”: means the location set out in the Schedule 1 which contains all of the computer hardware, software, network and other equipment required to deploy and manage the System and the Hosting Services by Moroku.
“Force Majeure”: means acts, events, omissions or accidents beyond a party’s reasonable control, including, but not limited to, acts of God, flood, earthquake, windstorm or other natural disaster, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, nuclear, chemical or biological contamination or sonic boom, any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary licence or consent, extreme adverse weather conditions, and any labour dispute, including but not limited to strikes, industrial action or lockouts.
“Hosting Services”: means the provision by Moroku to Customer of access to the System through the Internet and use of the hosting features and functionality selected by such Customer as further specified in Schedule 1 and Schedule 2.
“Initial Fees”: means the fees payable by Customer to Moroku for access to and use of the System via the Hosting Services and the initial set-up charge for granting Customer access to the System in Moroku’s facilities. Such initial fees shall also include the fees for any Additional Services.
“Procedures”: means the operating procedures, methods and practices, as shall from time to time be made available to Customer by Moroku, designed to define the process for managing features and functionality of the System and to verify transmissions, information and other such communications.
“Recurring Fees”: means the fees payable by Customer to Moroku for the continued right to access the System via the Hosting Services.
“System”: means the combination of Moroku GameSystem including but not limited to Moroku’s computer object programs, procedures, statements, screen layouts, machine readable instructions and definitions for the software features and functionalities listed in the Schedule 1.
“Term” has the meaning given to such term in clause 6.1.
- Supply of Services
2.1 Customer requests Moroku to supply the Hosting Services for the System to it’s End-Users and its Affiliates in accordance with the terms of this Agreement. Customer may request Moroku to provide Additional Services.
2.2 Moroku shall perform the Hosting Services and the Additional Services with reasonable skill and care.
2.3 Moroku hereby grants Customer, its Affiliates and End Users a royalty free, non-exclusive, non-assignable, perpetual and worldwide license (with no right to sub-license) to use the Application and access the System through the Hosting Services and to obtain the Additional Services, each in accordance with the terms of this Agreement.
3 Fees and Payments
3.1 The Initial Fees and the Recurring Fees shall be set out and be due and payable to Moroku in accordance with Schedule 2.
3.2 Moroku will submit invoices for the Initial Fees and the Recurring Fees it is due in accordance with Schedule 2.
3.3 Customer shall pay Moroku the Initial Fees and/or Recurring Fees invoiced by Moroku within 15 days of receipt of Moroku’s invoice for such Fees.
3.4 All invoices will be invoiced by Moroku in the currency specified in Schedule 2.
3.5 All Initial Fees and Recurring Fees are exclusive of all taxes.
4 System Operation, Use, Availability and Support.
4.1 In consideration for the Initial Fees and the Recurring Fees, Moroku will provide the Hosting Services and (if requested) the Additional Services described in Schedule 2.
4.2 Customer acknowledges that it shall be required to follow the Procedures. Moroku and Customer shall discuss and agree any proposed changes to the Procedures and Moroku shall provide Customer with reasonable advanced notice of any agreed changes to the Procedures.
4.3 Moroku will perform the maintenance and support services stipulated in Schedule 2 and shall adhere to the services levels for such services as set out in Schedule 2. Moroku shall, at its own cost, correct or procure the correction of any failures of the System, the Hosting Service or the Additional Services (as the case may be) to perform materially in accordance with the Documentation, the Procedures or the terms of this Agreement, provided such failure has been notified in writing by Customer to Moroku and such failure has not been caused by the Customer failing to use the System in accordance with the Documentation and Procedures. Such correction shall be carried out either by means of repair or replacement at Moroku’s discretion.
4.4 If Moroku wishes to change the Environment it will give written notice to Customer, which notice shall contain full details on the new environment. Customer may, acting reasonably, withhold its permission. In the event that the parties agree to change the environment or location specified in Schedule 1, Moroku shall use its best endeavours to cause as little disruption as is possible to Customer and Customer End-Users in the course of such move.
5 Additional Customer Obligations
5.1 Customer shall (i) provide Moroku in a timely fashion, with all information reasonably required from it for the performance of the Hosting Services and/or the Additional Services; (ii) cooperate fully with Moroku in its provision of the Hosting Services and/or Additional Services; (3) provide reasonably adequate resources to participate in or facilitate the performance of the Hosting Services and/or Additional Services.
6 Term and Termination
6.1 The term of this Agreement shall commence on the Effective Date and shall continue until the fifth (5th) anniversary of the Effective Date (“Initial Term”), unless terminated earlier in accordance with the terms hereof.
6.2 Upon expiration of the Initial Agreement Term, this Agreement shall automatically renew for additional successive five (5) year periods unless and until terminated by either party giving not less than 90 days’ notice to the other. The Initial Term and any subsequent additional extensions shall be to be known as the “Term”.
6.3 Should either party commit a material breach of its obligations here-under, or should any of the representations of either party in this Agreement prove to be untrue in any material respect, the other party may, at its option terminate this Agreement upon ninety (90) days’ written notice of termination, which notice shall identify and describe the basis for such termination. If, prior to expiration of such period, the defaulting party cures such default, termination shall not take place.
6.4 Either party may, at its option and without notice, terminate this Agreement, effective immediately, should the other party: (1) admit in writing its inability to pay its debts generally as they become due; (2) make a general assignment for the benefit of creditors; (3) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (4) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (5) seek re-organisation under any bankruptcy act, or consent to the filing of a petition seeking such re-organisation; (6) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs; or (7) or cease to carry on business.
7 Rights on Termination
7.1 Termination or expiration of this Agreement shall not relieve either party of obligations accrued prior thereto.
7.2 Neither party shall be relieved of obligations that survive termination or expiration of this Agreement.
7.3 Upon termination of this Agreement, Customer may notify Moroku to destroy or otherwise dispose of such Customer data in its possession. Upon receipt of such written request Moroku shall deliver to Customer within 30 Normal Working Days of such request the then most recent back-up of such Customer data
7.6 Notwithstanding the termination or expiration of this Agreement for any reason the provisions of Clauses 8, 9,10,11 and 11 and any other terms of this Agreement which by their nature are intended to survive shall continue to have effect after termination or expiration.
8. Confidential Information and Nondisclosure and Customer Data
8.1 The parties recognize that during the term of this Agreement, the parties may receive from each other and otherwise be exposed to Confidential Information which may or may not contain legends or other written notice that it is of a confidential and proprietary nature. The parties acknowledge the confidential and secret character of the Confidential Information, and agree that the Confidential Information is the sole, exclusive, and extremely valuable property of Customer or Moroku as applicable.
8.2 The parties shall not (i) reproduce any of the Confidential Information without the other party’s prior written consent, (ii) use the Confidential Information except in the performance of this Agreement, or (iii) divulge all or any part of the Confidential Information in any form to any third party other than to its employees, but only to those who need to know such information to perform the Hosting Services and/or Additional Services and who are bound to comply with the restrictions herein, either during or after the Term. Upon termination of this Agreement for any reason, the parties shall cease using and return to the other, all whole and partial copies and derivatives of the Confidential Information, whether in their possession or under their direct or indirect control.
8.3 These obligations of confidentiality shall not apply to any Confidential Information which the parties can demonstrate: (i) is or becomes available to the public through no breach of this Agreement; (ii) was previously known by the receiving party without any obligation to hold it in confidence; (iii) is received from a third party who was free to disclose such information without restriction; (iv) is independently developed by the receiving party without the use of Confidential Information of the disclosing party; (v) is approved for release by written authorisation of the disclosing party, but only to the extent of such authorisation; (vi) is required by law or regulation to be disclosed, but only to the extent and for the purposes of such required disclosure; or (vii) is disclosed in response to a valid order of a court of competent jurisdiction, but only to the extent of and for the purposes of such order, and only if the receiving party first notifies the disclosing party of the order and permits the disclosing party to seek an appropriate protective order.
8.4 Moroku shall keep all Customer data it receives strictly confidential. In the event of any loss or damage to Customer data, Moroku shall use reasonable commercial endeavours to restore the lost or damaged Customer data from the latest back-up of such data maintained by Moroku.
8.5 If Moroku processes any personal data of a Customer when performing its obligations under this Agreement, the parties record their intention that Customer shall be the data controller and Moroku shall be a data processor and in any such case:
(i) Customer shall ensure that it is entitled to transfer the relevant personal data of the Customer to Moroku so that Moroku may lawfully process the personal data in accordance with this Agreement on Customer’ behalf;
(ii) Moroku shall process such data in accordance with the terms of this Agreement and the lawful instructions of Customer; and
(iii) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
- Intellectual Property
9.1 The Application, the entire copyright, together with all designs, trade or service marks, trade secrets, know-how and other intellectual property rights and any other right and title shall vest in and be the absolute property of Moroku and its Affiliates.
9.2 Customer agrees that they will not, directly or indirectly, copy, duplicate modify, create derivative works, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from Moroku.
- Limitation of Liability
The parties maximum cumulative liability to each other arising out of or relating to this Agreement, whether based upon warranty, contract, tort, or otherwise, shall not in any event exceed the amount equal to three times the amount actually paid to Moroku by Customer in the previous 12 months prior to any claim or series of claims. In no event shall either party be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of profits, or loss of use damages, arising out of or relating to this Agreement, even if either party was aware of or was notified of the possibility of such damages.
Notwithstanding the foregoing nothing stated above shall be construed as or deemed to be operative to exclude or restrict either party’s liability for fraud or death or personal injury to the extent that such liability results from the negligence of that party, its employees, sub-contractors or agents.
Any notice to be given here-under shall be in writing and shall be delivered or sent by registered or recorded delivery post, email, courier or by fax to the relevant party at its address contained herein (or such other address as shall have been notified to the other party) and shall be deemed to have been given in the case of a notice which is delivered by hand when it is deposited at the appropriate address in the case of a notice sent by post 48 hours after the date on which a registered or recorded delivery letter including such notice is posted and in the case of a notice sent electronically when it is dispatched, provided that in such a case a confirmation copy shall also be sent by post.
- Neither party shall be liable for a delay in the performance of its obligations and responsibilities under this Agreement due to a Force Majeure event. The time for completion of any obligation to which this provision applies shall be extended for a period equivalent to the delay caused by the Force Majeure event.
12.2 If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, invalid, or in conflict with any law of any relevant jurisdiction, then that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. The validity of the remaining provisions of this Agreement shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provision(s) held to be unenforceable.
12.3 This Agreement will be governed by and construed in accordance with the laws of Australia.
12.4 Moroku may not assign, transfer or deal with any or all of its rights and obligations under this Agreement without the prior express written consent of Customer. Any such assignment, transfer, or dealing shall be wholly void and totally ineffectual for any purpose.
12.5 This Agreement constitutes the entire agreement between Customer and Moroku with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written (other than fraudulent misrepresentation), between the parties with respect to the subject matter hereof.
This schedule defines the products and services
Environment and Documentation
The Application comprises the following components
|Chore Scout (optional)||The ChoreScout mobile phone app that run on bank customers phones|
|GameSystem Game Server||A Ruby on Rails application server that manages Player interactions|
To permit integration, customer is required to implement one or more API’s and API calls, defined by time to time by Moroku. Operation is dependent on teh Customer maintaining these in a way that matches the Service Level Agreement between us.
Game System is hosted on Heroku. Heroku is a cloud platform as a service (PaaS) supporting several programming languages including Ruby. Owned by Salesforce.com, Heroku provides all of the software and hardware infrastructure resources necessary to run the application such as databases, security, web servers and so on. Further information on the Heroku environment can be found at https://devcenter.heroku.com/categories/heroku-architecture
Moroku will provide the following documentation:
- GameSystem Architecture
- API documentation via Moroku Developer Portal
The Application comprises one or more of the following elements:
- A web or mobile application
- A GameSystem service where game related data and gaming accounts are stored and managed
- API definitions to allow integration between the above elements and a bank’s internal systems
Moroku shall perform the following Hosting Services and Additional Services to Customer.
Moroku will provide for Customer:
- A hosted service for the Application and the System for Customer which will be used to deliver the hosting functionality on a 24 hours per day, 7 days per week basis. The only exceptions to such availability shall be because of: (i) maintenance periods agreed in advance between Customer and Moroku; (ii) unplanned outages (which shall be resolved in accordance with the service levels set out below; or (iii) Customer requesting a different period of access time in relation to their access.
- Support services as outlined at https://moroku.com/support/
- Configuration and setup of a new service instance for Customer
- Appropriate security for Customer data
- Unless otherwise agreed by the parties the fees due to Moroku for Customer will be calculated using the fee structure and usage policy as detailed here
- Customer will pay all reasonable travel and subsistence expenses incurred by Moroku and which have been approved by Customer.
To Be Agreed
Excess Usage Policy
- Moroku will maintain an audit of Customer and submit the maximum number of End Users during the year and at the end of each 12 month period to Customer.
- The billing and payment of any excess usage will be agreed by the parties on a case-by-case basis.
All prices are in USD, unless specified otherwise and exclude any applicable taxes.