1.1 Nature of this Agreement and Statements of Work
a. This Master Services Agreement (“Agreement”) sets out the terms and conditions and establishes a framework under which Adrian Barkus has agreed that it will provide, and the Customer has agreed that it will acquire, the Services.
b. If the Customer requests the provision of, and Adrian Barkus agrees to provide, the Services to the Customer then, using the Statement of Work Pro-forma, Adrian Barkus will prepare (with the assistance of the Customer) and the Customer and Adrian Barkus will agree and sign a Statement of Work with respect to such Services.
c. No Statement of Work will be binding upon Adrian Barkus unless signed by an authorised representative of Adrian Barkus.
d. Subject to clause 1.1c), each Statement of Work will constitute a separate binding contract between the parties to that Statement of Work, which incorporates (with the necessary changes) the terms and conditions of this Agreement (excluding this clause 1.1 and the Statement of Work Pro Forma).
e. To the extent that there is a conflict or inconsistency between this Agreement and any Statement of Work, this Agreement shall prevail over such Statement of Work to the extent of the conflict or inconsistency, unless, and only to the extent that, the relevant terms and conditions of this Agreement have been specifically referred to and expressly amended by the terms and conditions of the relevant Statement of Work.
a. The Engagement commences on the Commencement Date, and continues until midnight on the day before the first (1st) anniversary of the Commencement Date (the Initial Term), unless terminated earlier by either Party in accordance with its terms.
b. The term of this Agreement is automatically extended without further action by either Party for an additional period of eighteen (18) months (a Further Term) at the end of the Initial Term and each Further Term (if any), unless:
i. terminated earlier by either Party in accordance with its terms; or
ii. either Party notifies the other Party in writing at least ninety (90) days before the end of the then current Initial Term or Further Term (as the case may be) that the Agreement is terminated with effect from the end of the then current Initial Term or Further Term (as the case may be).
c. For the avoidance of doubt, the Parties acknowledge and agree that:
i. the term of each Statement of Work is as expressly set out in the Statement of Work;
ii. this Agreement survives the termination or expiration of any Statement of Work; and
iii. the termination or expiration of this Agreement shall terminate any Statement of Work.
2.1 General Duties
a. Subject to the payment of the Fees, on and from the Commencement Date, Adrian Barkus will provide the Services and Deliverables to the Customer in accordance with:
b. any reasonable policies and directions of the Customer, as notified to Adrian Barkus in writing;
c. all applicable laws and regulations; and
d. the relevant Statement(s) of Work.
2.2 Specific Duties
a. In the discharge of its duties under this Agreement Adrian Barkus will:
i. ensure that each Deliverable meets the Service Levels set out in the relevant Statement of Work by the dates specified in the relevant Statement of Work;
ii. ensure the Services are provided by Personnel (including, without limitation, the Key Personnel) who are appropriately qualified, competent and experienced to provide the Services in accordance with this Agreement; and
iii. provide reports to the Customer concerning the Services and Deliverables as may be reasonably requested by the Customer from time to time.
b. Adrian Barkus will appoint as its representative the person denoted as the Adrian Barkus Project Manager in the Statement of Work and will ensure that such person has authority to make day to day decisions and to represent Adrian Barkus in the performance of the relevant Statement of Work.
3.1 Adrian Barkus will ensure that both during the term of this Agreement and after its termination it effects and maintains the following insurance policies:
3.2 professional indemnity insurance policy for not less than $10 million; and
3.3 public liability insurance policy for not less than $10 million.
4.1 The Customer will:
a. promptly make available to Adrian Barkus adequate information, materials, facilities and access to the Customer’s Personnel, premises and systems, to the extent reasonably necessary to enable Adrian Barkus to provide the Services and Deliverables and perform its other obligations under this Agreement;
b. appoint as its representative the person denoted as the Customer Project Manager in the Statement of Work and will ensure that such person has authority to make day to day decisions and to represent the Customer in co-coordinating the implementation of the relevant Statement of Work;
c. not access or attempt to access Adrian Barkus' systems without the prior written consent of Adrian Barkus (any such access to be on the terms and conditions stipulated by Adrian Barkus from time to time); and
d. not disclose passwords or codes (if any) supplied by Adrian Barkus to access Adrian Barkus' systems to any person other than its Personnel on a strict need-to-know basis.
a. During the Engagement the Customer will pay Adrian Barkus the Fees in respect of the supply of the Services and Deliverables, in accordance with the terms set out in the relevant Statement of Work.
b. Adrian Barkus may from time to time, and otherwise in accordance with this Agreement, issue invoices in respect of the Fees
c. The Customer must pay each invoice issued by Adrian Barkus to the Customer within thirty (30) days of the date of receipt of the relevant invoice, or as otherwise set out in the relevant Statement of Work.
a. Unless otherwise specified in the Statement of Work or approved by the Customer in advance, Adrian Barkus will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Adrian Barkus in performing the Services .
a. Adrian Barkus must give the Customer tax invoices in a form which complies with the requirements of A New Tax System (Goods and Services Tax) Act 1999.
b. In this clause GST has the meaning assigned to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.1 Subject to the provisions of clauses 5b) to 5d), each Party:
a. shall treat as strictly confidential and only use the other Party’s Confidential Information solely for the purposes contemplated by this Agreement; and
b. shall not, without the prior written consent of the Party from whom the Confidential Information was obtained (which may be withheld in that Party’s absolute discretion), publish, use or otherwise disclose to any person the other Party’s Confidential Information except for the purposes contemplated by this Agreement.
6.2 Each Party may disclose Confidential Information which would otherwise be subject to clause 5a) if, but only to the extent, it can demonstrate that:
a. such disclosure is required by applicable law or by any securities exchange or regulatory or governmental body having jurisdiction over it, wherever situated;
b. the Confidential Information was lawfully in its possession prior to its disclosure by the other Party (as evidenced by written records) and had not been obtained from the other Party; or
c. the Confidential Information has come into the public domain other than as a result of a breach of this Agreement or any other obligation of confidence,
6.3 provided that any such disclosure shall not be made without prior consultation with the Party from whom the Confidential Information was obtained.
a. Each Party may, for the purposes contemplated by this Agreement, disclose the other Party’s Confidential Information to the following persons or any of them, provided that such persons have first been directed (Direction) by the disclosing Party to keep it confidential:
i. if the disclosing Party is the Customer, the Customer’s officers and employees;
ii. if the disclosing Party is Adrian Barkus, Adrian Barkus' Personnel; and
iii. its professional advisers, auditors, bankers and insurers, acting as such.
6.4 The disclosing Party shall enforce each Direction at its own cost.
7.1 Customer Intellectual Property
a. Subject to payment of the Fees by the Customer in accordance with the terms and conditions of this Agreement or Statement of Work, all Intellectual Property Rights subsisting in, relating to or arising out of the Services or Deliverables will vest in the Customer, including all developments or enhancements by either Party to such Intellectual Property Rights.
7.2 Pre-existing Intellectual Property
a. TheParties acknowledge and agree that this Agreement does not transfer any right, title or interest in any Intellectual Property Rights owned by either party prior to the commencement of any Services or Deliverables under a Statement of Work.
7.3 Licence by Adrian Barkus and Third party IPR indemnity
a. Adrian Barkus grants (and, if applicable, shall procure that its licensors and Related Bodies Corporate shall grant) to the Customer a royalty free, non-exclusive licence to use any Intellectual Property Rights owned or licenced by Adrian Barkus (or, if applicable, its Related Bodies Corporate) that the Customer requires with regard to any Services or Deliverables for the sole purpose of Adrian Barkus providing the Services and Deliverables to the Customer and performing its other obligations under this Agreement.
b. Adrian Barkus shall indemnify and hold harmless the Customer against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by the Customer as a result of any claim, action or proceeding that the use, possession or receipt by the Customer, in accordance with the terms and conditions of this Agreement, of any Services or Deliverables (an Infringing Item) infringes the Intellectual Property rights of any third party (an IPR Claim).
c. Adrian Barkus shall have no liability if an IPR Claim is based on:
i. the Customer’s products or services, whether in whole or in part;
ii. a modification of the Services or Deliverables by anyone other than Adrian Barkus other than as directed or instructed by Adrian Barkus;
iii. the Customer’s use of the Services or Deliverables in a manner contrary to the instructions given to the Customer by Adrian Barkus or contrary to the terms and conditions of this Agreement;
iv. use or combination of the Services or Deliverables with the Customer’s or any third party’s products and/or services in circumstances where, but for such combination, no infringement would have occurred; or
v. the Customer’s use of the Services or Deliverables after notice of an IPR Claim from Adrian Barkus or any appropriate authority.
d. If any person makes an IPR Claim, or in Adrian Barkus’ reasonable opinion is likely to be made, then Adrian Barkus may, at its option, either:
i. procure for the Customer the right to continue using, possessing or receiving the Infringing Item free from any IPR Claim;
ii. modify the Infringing Item so that the Customer’s use, possession or receipt of the Infringing Item ceases to infringe the rights of the relevant third party; or
iii. replace the Infringing Item with a non-infringing substitute item,
e. or, if none of the above are reasonably practicable.
7.4 Licence by the Customer and Indemnity
a. The Customer grants (and, if applicable, shall procure that its licensors and Related Bodies Corporate shall grant) to Adrian Barkus a royalty free, non-exclusive licence during the Term to use, copy and modify any Intellectual Property Rights owned by the Customer (or, if applicable, its Related Bodies Corporate) that Adrian Barkus requires to provide the Services and Deliverables to the Customer or to perform its other obligations under this Agreement for the sole purpose of Adrian Barkus providing the Services and Deliverables to the Customer and performing its other obligations under this Agreement.
b. The Customer shall indemnify and hold harmless Adrian Barkus against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by Adrian Barkus:
i. as a result of the Customer’s failure to procure all necessary licences and consents required by the Customer to grant the licence in clause 6.4a); or
ii. as a result of any claim, action or proceeding that the use, possession or receipt by Adrian Barkus of any information or materials (in whatever format, including electronic format (such as software)) obtained from or provided by the Customer infringes the Intellectual Property Rights of any third party.
7.5 Third party infringement of Adrian Barkus' IPR
a. A party (“Party A”) shall promptly give notice in writing to the other party (“Party B”) if it becomes aware of any infringement or suspected infringement by any third party of any of Party B’s Intellectual Property Rights (including any trade marks and any Intellectual Property Rights in or relating to the Services or Deliverables) and provide Party B with all information and assistance reasonably required by Party A in respect of such an infringement.
8.1 Adrian Barkus represents and warrants that:
a. the Services will be carried out in a competent and professional manner, by appropriately qualified personnel, exercising due skill and care;
b. each Deliverable and the Services will comply with this Agreement; and
c. where a Deliverable comprises software, such software does not contain undocumented features or processes that could be used to compromise any security controls or characteristics of the software, and that the operation of the software will not require the modification or abandonment of any controls within the operating system under which the software will run.
d. the Services and Deliverables will be provided to the Customer within the timeframe and according to the specifications in the Statement of Work
8.2 The Customer acknowledges and agrees that Adrian Barkus does not represent, warrant or guarantee that the Services or Deliverables will be error or 'bug' free.
8.3 The Customer acknowledges and agrees that Adrian Barkus will not be held liable for any delays in delivery of the project which have been instigated by the Customer.
a. Nothing in this Agreement shall limit or exclude either Party's liability for: death; personal injury; fraud or fraudulent misrepresentations by that Party; breach of clause 5; the indemnity given by Adrian Barkus in clause 6.3b); the indemnity given by the Customer in clause 6.4b); a breach or misappropriation of a Party's (or its licensors') Intellectual Property Rights; the Customer's obligation to pay any Fees due and payable under this Agreement; or any liability which may not be lawfully limited or excluded by law.
b. Subject to clause 8.1a), neither Party will be liable in any circumstances to the other Party for consequential, special, incidental or indirect loss or damage, or the following loss or damage whether direct, consequential, special, incidental or indirect: loss of profits; loss of revenue; loss of turnover; loss of sales; economic loss; loss of business or contracts; loss of anticipated savings or goodwill; loss of software or data; or any losses arising from a claim by a third party for any of the aforementioned losses, whether such losses arise under contract, statute, tort (including without limitation, negligence), or otherwise.
c. Subject to Clause 8.1a), Adrian Barkus' liability for any claim, action, damage, loss, cost, charge or expense suffered or incurred by the Customer under or in connection with this Agreement is limited to:
i. in the case of a supply of goods, Adrian Barkus doing any one or more of the following (at its election): replacing the goods or supplying equivalent goods; repairing the goods; paying the cost of replacing the goods or of acquiring equivalent goods; or, paying the cost of having the goods repaired; and
ii. in the case of a supply of services, Adrian Barkus doing either or both of the following (at its election): supplying the services again; or, paying the cost of having the services supplied again.
d. If, notwithstanding the above, either Party is liable to any person, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement then, subject to Clause 8.1a), the total liability of that Party for all claims, actions, damage, losses, costs, charges or expenses arising under or in connection with this Agreement (whether arising under contract, statute, tort (including, without limitation, negligence), or otherwise) (a Claim) will be limited in aggregate to the amount equal to ten times the charges paid and payable by the Customer under the relevant Statement of Work in the successive twelve (12) month period prior to the most recent Claim.
e. The Customer must promptly mitigate any claims, actions, damage, losses, costs, charges or expenses likely to be or actually sustained, incurred or suffered by the Customer.
10.1 Notwithstanding any other provision of this Agreement, Adrian Barkus shall not be deemed to be in breach of this Agreement or otherwise liable to the Customer as a result of any delay or other failure in the performance of its obligations under this Agreement if and to the extent that such delay or other failure is caused by or arises from:
10.2 the Customer’s non-performance, delayed performance or other breach of its obligations under this Agreement;
10.3 the delayed arrival or non-arrival of information or data from the Customer;
10.4 information or data supplied by the Customer being faulty, damaged or incorrectly prepared;
10.5 errors in programs, coding information or operating instructions supplied by the Customer, including any failure of or defects in the Customer’s information technology network(s) or system(s);
10.6 any failure by the Customer to obtain all necessary rights and licences in relation to the Intellectual Property Rights of third parties; or
10.7 any act or omission of the Customer that has an adverse effect upon the performanceAdrian Barkus of its obligations under this Agreement.
11.1 Termination for cause: Either Party may terminate this Agreement or a particular Statement of Work at any time with immediate effect by giving notice to the other Party if:
a. the other Party is in material breach of this Agreement and fails to remedy that breach within 20 Business Days after receiving written notice requiring it to do so; or
b. the other Party commits a breach that cannot be remedied.
11.2 Termination for convenience: The Customer may terminate this Agreement or any Statement of Work without cause at any time, by giving forty (40) Business Days' written notice to Adrian Barkus.
11.3 Either Party may terminate this Agreement in whole with immediate effect by providing written notice to the other Party:
a. if the other Party is subject to an Insolvency Event; or
b. in accordance with clause 12.8b).
11.4 Termination of this Agreement or any Statement of Work, for whatever reason, does not affect the rights or obligations of the Parties which have accrued prior to the date of termination or expiration, including the right to claim damages as a result of a breach of this Agreement or any Statement of Work.
11.5 On termination or expiration of this Agreement or a relevant Statement of Work:
a. the obligations of confidentiality (but not the rights to use or disclose) under clause 5;
b. clauses 6, 8, 10 and 12 to 14; and
c. any other provision of this Agreement which, by its nature, is intended or would reasonably be expected to come into or remain in force on or after termination or expiration of this Agreement,
11.6 shall survive and be enforceable notwithstanding any such termination or expiration.
11.7 Upon termination or expiration of this Agreement or a Statement of Work, each Party shall promptly deliver up to the other Party (or at the other Party's election, destroy) all material (including software, hardware, equipment, documents, reports and technical information and data) belonging to the other Party and any other property (including copies, summaries and excerpts) in whatever form or medium relating to the business of the other Party, including any Confidential Information, which are in the possession or control of that Party.
11.8 Upon termination for cause by either party or upon termination by Adrian Barkus for convenience, Adrian Barkus will refund the Customer within thirty (30) Business days from the date of termination any money paid in advance by the Customer for Services and any Deliverables that Adrian Barkus has not provided or delivered by the termination date. The amount to be refunded will be reduced by the amount of Services that have been provided by Adrian Barkus up until the date of termination.
12.1 Adrian Barkus agrees it will not make, or attempt to make, a connection to the Customer's information technology system(s) or network(s), remotely or otherwise, without obtaining prior approval from the Customer for such connection and that any such connection will comply at all times with any reasonable conditions of which the Customer notifies Adrian Barkus in writing from time to time and be made solely for the purposes of providing services to the Customer.
12.2 Subject to the Customer's express authorisation, Adrian Barkus (and its Personnel) may access the Customer’s information technology system(s) and network(s) remotely. When remotely connected to the Customer’s information technology system(s) and network(s), Adrian Barkus (and its Personnel) will:
a. comply with all security procedures, policies notified in writing to Adrian Barkus by the Customer and with the reasonable written directions of the Customer;
b. not make any changes to the Customer's information technology system(s) or network(s) without the prior consent from the Customer;
c. keep confidential and secure, and not disclose, any remote access security credentials of the Customer to any other person, unless expressly authorised by the Customer; and
d. ensure that all departing Personnel with access to the Customer’s remote access security credentials return to the Customer, and cease using, such credentials immediately upon their departure.
a. If a provision of this Agreement or a right or remedy of a Party under this Agreement is invalid or unenforceable in a particular jurisdiction:
b. it is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability; and
c. it does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
a. Neither Party may, without the prior express written consent of the other Party, employ or engage the services of the other Party’s Personnel during their participation in the Engagement, or during the twelve (12) month period thereafter.
13.3 Governing Law and Jurisdiction
a. This Agreement and all Statements of Work are governed by the laws in force in New South Wales, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
a. A notice, consent, request or any other communication under this Agreement must be in writing and must be left at the addressee, sent by pre-paid post (by airmail if posted to or from a place outside Australia) or facsimile of the addressee set out in the Statement of Work.
b. A notice, request or other communication is deemed to be received:
i. if by delivery, on the day that it is delivered if it is delivered not later than 17.00 hours on a Business Day, or, if it is delivered later than 17.00 hours on a Business Day or at any time on a day which is not a Business Day, at 09.00 hours on the next Business Day;
ii. if by post, three (3) Business Days after posting (seven (7) Business Days, if posted to or from a place outside Australia); and
iii. if by facsimile, at the time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the recipient’s facsimile number; and
c. Either party may change its notice address or facsimile number by notice in writing to the other party.
14.1 A provision or a right under these terms and conditions may not be waived except in writing signed by the Party granting the waiver. No variation of this Agreement or any Statement of Work will be effective unless agreed in writing pursuant to clause 1.1b) or to the change control procedure set out in Schedule 2 and signed by each of the Parties.
15.1 This Agreement supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to their subject matter. Except for the express provisions in this Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law. The Parties hereby confirm that they have not relied upon any representations, communications or other matters which have not been expressly stated in this Agreement, whether as an inducement to enter into this Agreement or otherwise.
16.1 The covenants, conditions, provisions and warranties in this Agreement do not merge or terminate on completion.
17.1 If either Party is prevented from complying with, or delayed from performing, its obligations under this Agreement due to any event beyond its reasonable control (such event being referred to as a Force Majeure Event) (including without limitation, any issues arising from any data, software or documentation supplied by Adrian Barkus' licensors), it shall not be in breach of this Agreement or otherwise liable to the other Party by reason of any such delay in performance or non-performance. However, this clause does not excuse the Customer from complying with its payment obligations by itself claiming the benefit of a Force Majeure Event.
17.2 If a Force Majeure Event continues for a period of more than fourteen (14) consecutive days, then either Party may terminate this Agreement or a Statement of Work for convenienceduring the continuance of such Force Majeure Event. In such circumstances, both Parties acknowledge that there will be no compensation due from either Party to the other for termination.
18.1 This Agreement and each Statement of Work may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement.
Agreement means this agreement, including the Recitals, but excluding any Statements of Work entered into pursuant to clause 1.1.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in New South Wales.
Commencement Date means the date specified in the relevant Statement of Work as the date for the commencement of the provision of the Services and Deliverables described therein.
Confidential Information in relation to a party means all information relating to that Party, including all information concerning the business, products, services, systems, procedures and records (in whatever form, including in electronic format) of that Party, and their relationships with their customers and suppliers. Confidential information of Adrian Barkus includes all information relating to the Services and Deliverables and all Intellectual Property Rights existing in the same, the terms and conditions of this Agreement and the Fees payable by the Customer.
Customer means the Customer and its permitted successors and assigns.
Deliverable(s) means the deliverable(s) (if any) arising out of the Services and set out in a Statement of Work to be delivered by Adrian Barkus under this Agreement.
Engagement means the engagement of Adrian Barkus by the Customer under a Statement of Work.
Fees means the charges and expenses payable by the Customer under or in connection with this Agreement, including those fees, charges and expenses set out or referred to in, or calculated in accordance with, a Statement of Work.
Further Term has the meaning assigned to that term in clause 1.2.
Initial Term has the meaning assigned to that term in clause 1.2.
Insolvency Event means, in relation to a Party:
the Party ceases to pay its debts or suspends payments generally, or becomes unable or admits its inability to pay its debts as they fall due, or the value of its assets is or becomes less than its liabilities (taking into account contingent and prospective liabilities), or it becomes otherwise insolvent;
a moratorium or suspension of payments is declared or instituted or ordered, or a resolution is passed in respect of any indebtedness of the Party, or the Party is otherwise afforded protection from its creditors generally;
the Party passes a resolution for voluntary winding up or a court of competent jurisdiction makes an order that the Party be wound up (except for the purposes of bona fide reconstruction while solvent);
save in respect of a solvent reorganisation, a liquidator, receiver, administrative receiver, administrator, examiner, trustee, supervisor, compulsory or interim manager is appointed over the Party or any of its assets; or
any similar or analogous event in any jurisdiction.
Intellectual Property Rights means all intellectual property rights under statute or at common law or equity, including but not limited to patents, copyrights, rights (registered or unregistered) in any designs, trade marks, service marks, internet domain names, inventions, know-how and any rights to have confidential information kept confidential, and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of the rights and forms of protection mentioned in this definition.
Key Personnel means the persons described as such in a Statement of Work.
Party means the Customer or Adrian Barkus.
Personnel means, in relation to a Party, that Party's:
officers and employees;
Related Bodies' Corporate employees; and
in the case of Adrian Barkus only, sub-contractors' officers and employees.
Related Body Corporate has the meaning given in section 9 of the Corporations Act 2001.
Services means the services (if any) and all other related activities specified in a Statement of Work.
Service Levels means the performance criteria for the Services denoted as such in a Statement of Work.
Adrian Barkus means Adrian Barkus Pty Ltd and its permitted successors and assigns.
Statement of Work means a document substantially in the form of the Statement of Work Pro Forma for the provision of the Services by Adrian Barkus, which is agreed between the relevant parties and signed by their authorised representatives in accordance with clause 1.1.
Statement of Work Pro Forma means the pro-forma statement of work set out in Schedule 1.
Term means the Initial Term and each Further Term (if any).
20.1 In these terms and conditions and in any Statements of Work issued pursuant to it, unless the contrary intention appears:
a. monetary references are references to Australian currency;
b. headings and underlinings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
c. words in the singular number include the plural and vice versa;
d. words importing a gender include any other gender;
e. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
f. a reference to any party or person (including but not limited to any party to any document) includes a reference to its successors and permitted assigns.