Master Service Agreement

Schedule

Terms and Conditions

Definitions

In addition to terms defined in the SOW, unless the context otherwise requires:

“Confidential Information” means all confidential, non-public or proprietary information (including a party’s Intellectual Property Rights or the terms and conditions of each SOW), regardless of how the information is stored or delivered, exchanged between the parties before, on or after the commencement of the Term, relating to the business, technology or other affairs of the party disclosing the information, but does not include information:

(a) which is in, or becomes part of, the public domain other than through breach of this Agreement or an obligation of confidence
(b) which the party receiving the information can provide by contemporaneous written documentation was already known to it at the time of disclosure by the other party or independently developed by the party receiving the information without reference to the confidential information of the party disclosing the information, or
(c) which the party receiving the information acquires from a source other than the other party or any of its representatives, where such source is entitled to disclose it on a non-confidential basis.

“Developed Materials” means any materials developed or created by the Company in the course of, or associated with, the Professional Services (including without limitation all data and reports), solely for the Client but excludes any Existing Materials (or enhancement or modifications of Existing Materials).

“Existing Material” means all documents, data, design, software systems, processes, inventions, reports, databases, computer software, hardware and other information and Intellectual Property Rights belonging to the Company which the Company makes available to the Client or otherwise employs for the purposes of performing the Professional Services.

“Fees” means all of the fees payable by the Client under this agreement (including any Professional Service Fees) and each SOW.

“Intellectual Property Rights” means all copyright, trademark, patent, design, confidential information, moral, trade secret or any like rights to the foregoing, whether arising by common law or by statute or any right to apply for registration under a statute in respect of such rights.

“Loss” includes direct disbursements, losses, liabilities, damages, charges, costs and expenses (including legal costs and expenses on a solicitor/Client basis), claims, demands, actions or proceedings.

“MSA” means the Master Services Agreement entered into between the parties dated on or about [ ].

Statement of Work and provision of Professional Services and Deliverables

2.1 Subject to clauses 2.2 and 2.3, the Company will provide the Professional Services and the Deliverables in accordance with the terms of the SOW.

2.2 In addition to the obligations specified in the SOW, the Client must promptly provide the Company with all information, data and instructions and procure access by the Company to information and data reasonably requested by the Company from time to time to perform the Professional Services and Deliverables. The Client is responsible for the accuracy and completeness of information and data provided by it and the Company relies on the information and data provided being accurate and complete except to the extent the Company has agreed otherwise in the SOW.

2.3 If the SOW expressly states that a Deliverable is subject to the approval or acceptance of the Client (Review Item), then the following provisions will apply:

2.3.1 the Client must, at its own cost and expense, review and test the Review Item
2.3.2 the Client must not reject the Review Item unless the Client’s review or test objectively demonstrates that the Review Item does not comply with the requirements as set out in the SOW (Relevant Requirements)
2.3.3 if the Client rejects the Review Item, it must promptly notify the Company, and provide the Company with the objective evidence demonstrating that that the Review Item does not comply with the Relevant Requirements
2.3.4 if the Client rejects a Review Item and the Company agrees that the Review Item does not comply with the Relevant Requirements, the Company will promptly correct or replace the Review Item, in which case the process in this clause 2.4 will re-apply, and
2.3.5 if the Client does not notify the Company that it rejects the Review Item within fourteen days of receipt of the Review Item, the Client is deemed to have accepted or approved the Review Item.

2.4 Time is not of the essence in the provision of the Project Services or Deliverables. The timing milestones given in the SOW are estimates only. Any delaying action or omission by the Client will automatically extend any timing milestone to the extent of the effect of the delay by way of variation of this agreement. In addition, the Client must pay the Company of any additional costs or expenses incurred or suffered by the Company as a result of the delay.

Intellectual property rights and data collection

3.1 All Intellectual Property Rights subsisting in the Existing Material will remain the exclusive property of the Company.

3.2 Subject to payment of all relevant Fees, all right, title and interest in the Developed Materials (including Intellectual Property Rights) will vest in the Client. If the Client requires the Company to execute any document (containing reasonable terms) to assign the Intellectual Property Rights in respect of such Developed Materials to Client, the Company will do so at the Client’s cost but for no extra fee.

3.3 To the extent that any Deliverable incorporates any Existing Materials, the Company grants to the Client a perpetual, royalty-free, non-exclusive and non-transferrable licence to use and reproduce the Existing Materials, but solely for the purpose of, and only to the extent required, to enjoy the benefits of the Deliverable.

3.4 Notwithstanding anything to the contrary in this agreement or other correspondence between the parties, the Company shall not be restricted from using for its own benefit or for the benefit of a third party the domain knowledge and skill sets acquired in the course of performing the Professional Services.

3.5 To the maximum extent permitted by law, the Client must not:

3.5.1 reverse engineer, decompile or disassemble the whole or any part of the Existing Materials, or create derivative works based on the Existing Materials
3.5.2 permit or enable unauthorised access or use of the Existing Materials or accompanying written materials by third parties, or
3.5.3 directly or indirectly allow or cause a third party to do any of those things, without Company’s prior written consent.

Warranties and liability

4.1 The Company warrants that the Professional Services and Deliverables will be provided with reasonable care and skill.

4.2 The Client acknowledges that it is relying solely on its own skill and judgement in determining the suitability of the Professional Services and the Deliverables for its business or for any general or specific purposes.

4.3 To the maximum extent permitted by law and subject to clause 4.4., the Company excludes all representations, warranties, terms, conditions, undertakings and liability in respect of the Professional Services and the Deliverables.

4.4 In relation to any condition, warranty or representation implied by law that cannot be excluded, to the extent permitted by law, the Company’s liability is limited, to the supply of the services or deliverables again or, at the Company’s discretion, the Company will pay the cost of having the services or deliverables supplied again.

4.5 To the maximum extent permitted by law, the Company is not liable to the Client in any circumstances for any indirect, economic, special or consequential loss, or in any event for any loss of revenue, loss of production, loss of profit or loss of data.

4.6 To the extent the Company is unable to exclude or limit its liability under clauses 4.3 or 4.4, to the maximum extent permitted by law, the Company excludes all liability for any indirect, economic, special or consequential loss, or in any event for any including but not limited to loss of revenue, loss of production, loss of business opportunity, anticipated savings or benefit, profit, or goodwill or loss or corruption of data and the Company’s aggregate liability to the Client on any basis and in any circumstances (including liability for negligence) will not exceed the amount equal to the Fees paid by the Client in the first twelve (12) months of this agreement.

Fees

5.1 The Company may invoice the Client, and the Client must pay all relevant Fees, in accordance with the SOW.

5.2 The Client will pay all invoices issued by the Company on the earlier of the due date for payment specified on the SOW and seven (7) days after the invoice date.

5.3 If the Client fails to pay an amount on the due date for payment, the Client must pay to the Company interest at the rate of 10% per annum on that amount, calculated and payable daily, computed from the due date until the amount is paid in full.

5.4 Without limiting any rights the Company may have, the Company may, in its absolute discretion, suspend or withhold the provision of any Professional Services or Deliverables if any amount remains unpaid for a period of longer than sixty (60) days. The Client’s failure to pay any account on time may be treated by the Company as a delaying action or omission for the purposes of clause 2.4.

5.5 If any supply by the Company to the Client under or in connection with these conditions is subject to GST, the Client must pay to the Company in addition to the consideration for that supply (unless it expressly includes GST) an amount equal to the amount of the consideration or its GST exclusive market value multiplied by the rate at which GST is imposed in respect of the supply (Additional Amount). The Client must pay the Additional Amount to the Company at the same time as the consideration for the supply is payable. The terms, ‘tax invoice’, ‘GST’, and ‘GST exclusive market value’ have the respective meanings as set out in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).”

Confidentiality

6.1 Each party:

6.1.1 may use the other party’s Confidential Information solely for the purposes of this agreement
6.1.2 must keep confidential all Confidential Information of the other party
6.1.3 may disclose the other party’s Confidential Information only to its representatives if the person to whom disclosure is made is under an obligation to keep confidential any information so disclosed or to the extent necessary to comply with any applicable law, any court proceedings, the requirements of any regulatory body, or the rules of any stock exchange on which the shares of that party or any related body corporate of that party are listed or are proposed to be listed.
6.2 The confidentiality obligations in this agreement are additional to any agreement between the parties with respect to the subject matter of confidentiality.

Term and Termination

7.1 Unless terminated earlier in accordance with these provisions, this agreement will commence and end on the date stipulated in the SOW (SOW Term) (if any).

7.2 In the event either party materially breaches this agreement, the innocent party may, without prejudice to its other rights and remedies, terminate this agreement by giving prior written notice of thirty (30) days, provided that the breach remains uncured at the end of such notice period.

7.3 Either party may terminate this agreement upon written notice to the other party (Defaulting Party) in the event: (i) the Defaulting Party suspends payment of its debts; (ii) the Defaulting Party becomes an externally-administered body corporate under the Corporations Act 2001 (Cth); (iii) steps are taken by any person towards making the Defaulting Party an externally-administered body corporate (but not where the steps taken consist of making an application to a court and the application is withdrawn or dismissed within fourteen (14) days); (iv) a controller (as defined in section 9 of the Corporations Act 2001 (Cth)) is appointed of any of the property of the Defaulting Party or any steps are taken for the appointment of a controller (but not where the steps taken are reversed or abandoned within fourteen (14) days); (v) the Defaulting Party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth); or (vi) an event happens analogous to an event specified in paragraphs (i) to (v) to which the law of another jurisdiction applies and the event has an effect in that jurisdiction similar to the effect which the event would have had if the law of Australia applied.

7.4 Unless the SOW states otherwise, only the Company may terminate this agreement for convenience upon written notice to the Client of not less than thirty (30) days without any liability to the Client except where the Company is negligent in the provision of the Professional Services or Deliverables.

7.5 If the Company or the Client terminates a specific SOW, only that SOW will terminate without affecting the MSA or any other SOWs.

7.6 If a SOW is terminated:

(i) the Company is released from all obligations to provide the relevant Professional Services or the Deliverables which have not yet been provided
(ii) each party in receipt of another party’s Confidential Information shall, at the disclosing party’s direction, either return or destroy that Confidential Information and certify in writing that it has done so, and
(iii) all Fees and any other amounts invoiced by the Company (including for any incomplete Professional Services or Deliverables), including any expenses and costs incurred by the Company specifically for the Client as identified in the relevant SOWs, shall be paid by the Client to the Company immediately.

7.7 If the Client terminates this Agreement under clause 7.2 or clause 7.3, the Company must refund to the Client the balance of any advance payments made by the Client to the Company prior to such termination, after the application of clause 7.6.

General

8.1 Assignments. A party’s rights under this agreement must not be assigned or novated by either party without the other party’s prior written consent, which shall not be unreasonably withheld. Subject to the foregoing, this agreement shall be binding upon and shall inure to the benefit of both parties, their successors and permitted assigns.

8.2 Notices. Communication of a routine nature may be transacted by email. Communication of a non-routine nature, including notices for termination shall be given in writing and transmitted by prepaid registered mail addressed to the address specified in a SOW and marked to the attention of the principal points of contact indicated in the applicable SOW.

8.3 Independent Contractor. The relationship of the parties to each other shall be that of independent contractors and shall not be interpreted to constitute an agency, partnership or joint venture.

8.4 Non-solicitation. To the maximum extent enforceable by applicable law, during the SOW Term and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, for itself or on behalf of any other person (i) hire or solicit for hire any employee of the other party except through a general advertisement; (ii) in any manner attempt to influence or induce any employee of the other party to leave the employment of such party; or (iii) disclose to any person or entity any information obtained while rendering services to or receiving services from the other party concerning the names and addresses of the other party’s employees.

8.5 Force majeure. Neither party shall be liable for any failure to perform its obligations (other than obligation to make payment) under this agreement if prevented from doing so by a cause or causes beyond its reasonable control. Without limiting the generality of the foregoing, such causes include acts of God or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, acts of terrorism, wars or war operations, restraints of government or other cause or causes which could not with reasonable diligence be controlled or prevented by such party.

8.6 Severability. If any provision of this agreement is held to be illegal, invalid or unenforceable, the same shall not affect the remaining provisions hereof, which will remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as part of this agreement, a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

8.7 Entire agreement and amendment. This agreement together with each agreed SOW and any exhibits attached to this agreement or a SOW shall form the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior or contemporaneous negotiations and agreements, oral or written, between them regarding the subject matter hereof except with respect to confidentiality. Subject to clause 2.4, an amendment or variation to this agreement or a SOW is not effective unless it is in writing and signed by the parties.

8.8 Governing law. This agreement shall be governed by the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.