General Terms and Conditions

MSP Blueshift Pty Ltd ACN 140 630 888 (Company) agrees to provide the Services, and the Client agrees to accept the Services, on the following terms and conditions and in accordance with the details set out in the relevant Client Application Form (together, the Agreement).

1.         Definitions
1.1        Dictionary
In this agreement, unless the context requires otherwise, the following words and phrases have the following meanings:

means, in relation to a person, any person who:

(a)             is a related entity (as that term is defined in Section 9 of the Corporations Act substituting the name of that person for the words body corporate);

(b)            is a partner or joint venturer of that person; or

(c)             a body corporate or other person which is Controlled by that person.

Australian Consumer Law
means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Business Day
means a day (not being a Saturday, Sunday or public holiday) on which Australian banks (as defined in section 9 of the Corporations Act) are open for general banking business in the capital city of the State.

means any claim or cause of action, including claims in contract, claims in tort, claims under statute and legal proceedings.

Client Application Form
means the application form provided by the Company to the Client in relation to the provision of information technology solutions and services and signed by both parties.

Commencement Date
means the date specified in the Client Application Form.

Confidential Information
means all and any information of a confidential nature obtained by the Client or the Company (including financial, client and employee information, processes, statements, trade secrets, drawings and data and copies and extracts made of or from that information and data), which is not in the public domain, except by the failure of a party to perform and observe its covenants and obligations under this Agreement.

Cyber Security Services
has the meaning given in clause 4(a).

Corporations Act
means the Corporations Act 2001 (Cth).

means anything that is considered to be of an extreme or catastrophic nature touching or impinging upon human life, property, goods, anything material or intangible deemed necessary to give effect to this Agreement.

has the meaning given to that term in the GST Act.

means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

means, in relation to a party, where that party:

(a)             is insolvent as that term is defined in section 9 of the Corporations Act;the subject of an event described in sections 459C(2) (a) to (f) or section 585 of the                                   Corporations Act (or the person makes a statement from which another party to this Agreement may reasonably deduce the person is so subject); an insolvent under                   administration or suffers the appointment of a controller, administrator, liquidator or provisional liquidator as those terms are defined in section 9 of the Corporations                   Act; or dissolved (other than to carry out an amalgamation or reconstruction while solvent);

(b)            is otherwise unable to pay its debts as and when they become due and payable;

(c)             being a natural person, commits or suffers an act of bankruptcy; or

(d)            takes or suffers a similar consequence in debt to those in paragraphs (a) to (c) under the law of any jurisdiction.
                 Intellectual Property Rights
                 means all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to intellectual property, including:

(a)             trade marks;

(b)            copyright and designs;

(c)             inventions (including patents, innovation patents and utility models);

(d)            confidential information of any nature (including the Confidential Information and the right to enforce an obligation to keep data or information confidential),                                 technical data, know how and trade secrets;

(e)             circuit layout designs, topography rights and rights in databases;

(f)              any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or which may subsist from time to                       time;

(g)             any business name registration, domain name registration or social media account;

(h)            any licence or other similar right from a third party to use any of the above;

(i)              any applications and the right to apply for registration of any of the above; and

any rights of action against any third party in connection with any of the above, including any right to claim (and retain) any damages and other remedies (including an account of profits) for infringement.

means any loss, including any damage, claim, action, liability, cost, expense, charge, penalty and legal costs on a full indemnity basis.

Out of Scope Hourly Rate
means the hourly rates, fees, and charges of the Company to be charged for Out of Scope Services as more particularly described in the Client Application Form or as otherwise notified to the Client by the Company in writing from time to time.

Out of Scope Services
means any services (and related products) that are not expressly set out as Services.

Payment Frequency
has the meaning given to that term in the Client Application Form.

Resolution Institute
means the Resolution Institute ACN 008 651 232 located at Suite 602, Level 6 Tower B, Zenith Centre, 821-843 Pacific Highway, Chatswood NSW 2067, or its successor entity.

Service Fees
means the service fees and charges payable by the Client to the Company as more particularly described in the Client Application Form.

Service Levels
means the service level responses and service level guarantees set out in Client Application Form.

means the information technology and related support services expressly set out in the Client Application Form.

means the state of Victoria in the Commonwealth of Australia.

has the meaning given to that term in clause 2.

Termination Date
means the date that this Agreement is terminated in accordance with clause 8.

1.2        Rules for interpretation
In this Agreement unless the context otherwise requires:

(a)            (plural) the singular includes the plural and vice versa, and a gender includes other genders;

(b)            (grammatical form) another grammatical form of a defined word or expression has a corresponding meaning;

(c)            (cross references) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference                  to this Agreement includes any schedule or annexure;

(d)            (amendment to documents) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time                       to time;

(e)            (currency) a reference to dollar or $ is to Australian currency;

(f)             (time) a reference to time is to eastern standard, Australia time;

(g)            (successors) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party’s executors, administrators, successors                   and permitted assigns and substitutes;

(h)            (deed) if this document is a deed, all references to ‘executed’ must also be taken to mean ‘signed, sealed and delivered’;

(i)              (individuals and entities) a reference to a person includes a natural person, partnership, body corporate, trust, association, government authority or local authority or                      agency or other entity;

(j)              (amendments to law) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re                        enactments or replacements of any of them;

(k)            (no limitation by examples) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(l)              (no contra proferentem) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this                                        Agreement or any part of it; and

(m)          (time for performance) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the                  event must occur on or by the next Business Day.

1.3        Legal Advice
(a)            The parties have sought independent legal advice (or have been provided with the reasonable opportunity to seek independent legal advice) in relation to their rights                   and obligations under this Agreement.

(b)            The parties agree that their rights and obligations under this Agreement are necessary and go no further than what is required to protect their legitimate commercial                   interests.

2.         Term
This Agreement will commence on the Commencement Date and will remain in force until the earlier of:

(a)            either party giving at least 30 days written notice to the other party that it wishes to terminate this Agreement, in which case termination will take effect at the end                  of the following month in which the notice was given. For the avoidance of doubt, as an example, notifications received in January will result in the Agreement                              terminating on the last day of February; or

(b)            the Agreement being terminated in accordance with clause 8 (Term).

3.         Services
3.1        Services
(a)            This Agreement will apply to all Services provided by the Company to the Client. The terms and conditions of this Agreement supersede any other terms and                                   conditions that may be provided by the Client to the Company in respect of the Services.

(b)            The Company will supply the Services in accordance with:

(i)              any Service Levels;

(ii)            any reasonable directions given by the Client from time to time; and

(iii)           any laws, licences or other regulatory obligations.

(c)            To the extent the Client requests the Company to provide Services on a project, ad-hoc, or single engagement basis and the Company agrees to each such request in                     writing (Project Engagement):

(i)              the terms and conditions of this Agreement will apply to each Project Engagement; and

(ii)            the scope and fees in respect of each Project Engagement must be agreed in writing and signed by an authorised representative of Customer and the Client (to the                       extent not expressly set out in the Client Application Form).

(d)            The Company may accept or reject any Client request to undertake any Project Engagement in its discretion.

3.2        Delivery of Services
(a)            The method of delivering the Services will be determined at the sole discretion of the Company (acting reasonably), including by way of remote delivery, onsite                             attendance, or a combination of both.

(b)            The Company must provide and carry out the Services in an efficient and professional manner and in accordance with standards generally observed in the information                   technology industry.

3.3        Assistance
The Client must:

(a)            provide all reasonable assistance requested by the personnel of the Company in the diagnosis of any problem within its information technology infrastructure and follow any reasonable request of the Company;

(b)            ensure that its data and information is adequately backed up in accordance with relevant industry standards prior to the Company providing the Services;

(c)            make available free of charge and within a reasonable time all information, facilities, personnel and resources reasonably required to enable the Company to provide                    the Services;

(d)            provide reasonable access to its premises to give effect to the matters described in clauses 3.3(a) and 3.3(c); and

(e)            provide such facilities as reasonably required by the Company for performance of the Services.

3.4        Interruptions
(a)            The Company must use all reasonable endeavours to supply the Services in accordance with this Agreement.

(b)            Notwithstanding anything else in this Agreement, the Client acknowledges and accepts that the Services may not be available in all circumstances, including but not                    limited to anything in connection with:

(i)              weather conditions;

(ii)            power failure;

(iii)           telecommunications failure;

(iv)           technical failure;

(v)            third party software product or cloud services failure; and

(vi)           maintenance requirements.

(c)            The Company will notify the Client in advance of any planned maintenance, outages or disruptions in connection with the Services.

(d)            The Client indemnifies the Company against all Losses and Claims which the Company may suffer or incur resulting from circumstances caused or contributed by the                     Client, including but not limited to anything in connection with:

(i)              the Company’s inability to access the Client’s premises; or

(ii)            the Client’s acts or omissions.

(e)            The Company will rely upon this clause 3.4 to the full extent permitted by law. To the extent of any inconsistency between this clause 3.4 and clause 11, clause 11                     will prevail to the extent of inconsistency.

3.5        Issues with equipment
(a)            Any serious, potential or other issue which relates to the age, configuration or implementation of any equipment or infrastructure may be brought to the attention of                  the Client by the Company in writing (Issue Notification).

(b)            The Issue Notification must include:

(i)              the details of the relevant issue/s; and

(ii)            the estimated cost of rectifying the relevant issue/s.

(c)            Where, in the reasonable opinion of the Company, the relevant Issue Notification identifies that the Company will be required to provide additional support or support                   beyond the scope of the obligations of the Company under this Agreement due to the age, configuration or implementation of the relevant equipment or                                         infrastructure, the Company and Client must agree to either:

(i)              cease support of that item of equipment or infrastructure under this Agreement until the equipment or infrastructure is brought up to agreed industry standards; or

(ii)            treat any additional support or support beyond the scope of the obligations of the Company under this Agreement as Out of Scope Services.

(d)            In the event the parties are unable to agree on the approach set out in clause 3.5(c), the Company may determine to cease support of the relevant item of equipment                   or infrastructure in its sole discretion.

3.6        Out of Scope Services
(a)            Any Out of Scope Services that are provided by the Company will be charged in accordance with the time and materials Out of Scope hourly rate specified in the                            Client Application Form.

(b)            The Client agrees that any Out of Scope Services will be billed in addition to the Services.

4.         Cyber security risk mitigation
(a)            To the extent detailed in the Services, the Company may provide certain services that enhance cyber security and related protections for the Client, to the extent                         detailed in the Services (Cyber Security Services).

(b)            The Client acknowledges that to mitigate certain risks associated with potential cyber security incidents and to ensure the Cyber Security Services may be delivered                     as effectively as possible, the Client must take all reasonable precautions required by the Company, including but not limited to:

(i)              backing up all data and information used and held by the Client (including customer and client data held by or on behalf of the Client);

(ii)            ensuring all systems and software are up to date in accordance with software and system provider recommendations (and as reasonably directed by the Company);

(iii)           notifying the Company immediately of any suspected or actual cyber security breach, incident, attack or any other breach that may reasonably be considered as a                          cyber security incident or breach;

(iv)           taking reasonable steps to mitigate, reduce, or prevent loss to itself (and third parties) in the event of a cyber security incident or breach;

(v)            conducting regular employee cyber security training; and

(vi)           undertaking any recommended actions specified in writing by the Company that the Company reasonably considers necessary to mitigate cyber security risk.

(c)            Where the Client fails to comply with clause 4(b), the Company will not be liable to the Client for any Losses suffered as a result of cyber security breaches except to                     the extent caused or contributed by the Company.

5.         Service Fees
5.1        Payment
(a)            In consideration for the Services provided by the Company to the Client, the Client must pay the Service Fees to the Company in accordance with this Agreement.

(b)            The Service Fees are payable in accordance with the Payment Frequency and are due and payable within 15 days of the date of a tax invoice supplied (Due Date).

(c)            Fees which do not appear on a tax invoice for a particular period may appear on future tax invoices.

(d)            The Service Fees will be binding on the parties except in the event of manifest significant error or fraud.

5.2        Late Payments
(a)            The Client will be liable for all reasonable and necessary collection costs (including legal fees charged on a solicitor/client basis and indemnify the Company for such                       costs) the Company incurs to collect an amount outstanding.

(b)            Accounts remaining in debit 15 days past Due Date may be placed on credit hold following the Company providing the Client reasonable notice.

5.3        Disputing an invoice
(a)            If the Client in good faith disputes an amount in an invoice, the Client must notify the Company in writing within 7 days of the date of invoice. This notice must set                      out reasons for the dispute and the amount in dispute (Disputed Amount). The Company will within 15 days of the date of receipt of the notice review the invoice for                  the purposes of resolving such dispute.

(b)            If a Fee is disputed, the Client is not entitled to withhold payment of the undisputed amount of the invoice.

(c)            Subject to due performance by the Company of its obligations under this Agreement and to the terms of this Agreement, except where an interruption, unavailability                  or impaired quality of the Service has been caused or contributed to by the Company, the Client remains liable for all Fees.

5.4        Variations to Service Fees
(a)            The Company will increase or decrease on a monthly basis the Service Fees based either on the total number of devices or the effective full-time users. Any decrease                   to the Service Fees is subject clause 8.

(b)            These increases or decreases will be calculated using the costing method upon which your current signed agreement was calculated i.e. per device pricing or per user                   pricing.

(c)            Without limiting any other provision of this Agreement, the Service Fees may be adjusted on 1 September in each year of the Term to reflect any increase in the                             consumer price index (all groups) for the 12 month period prior to that adjustment.

(d)            For the avoidance of doubt, the terms of this Agreement will continue to apply unless and until the parties mutually agree in writing to make any changes or                                  amendments.

6.         Client’s responsibilities
(a)            Without limiting any other provision of this Agreement, the Client must:

(i)              comply promptly with the Company’s reasonable directions in relation to the provision of the Services;

(ii)            provide promptly all information, decisions, facilities and assistance the Company reasonably requires to supply the Services;

(iii)           comply with all laws and guidelines concerning the Client’s use of the Services;

(iv)           provide the Company safe access to and from the premises to which the Services are supplied and obtain the consent of the owner (where required) for the Company                   to install, inspect, repair, maintain or remove equipment connected with the provision of the Services;

(v)            to the extent relevant, notify the Company of the Client’s inability to comply with reasonable requests in line with this clause, outlining why the Client cannot comply                   and providing alternate options so that the Company may continue to meet its obligations under this Agreement;

(vi)           allow the Company to perform penetration testing, simulated cyberattacks, and other security testing of infrastructure, where required to provide the Services                               (including the Cyber Security Services); and

(vii)          provide the Company with any information reasonably required for the Company to assess any security vulnerabilities of the Client’s cyber security systems.

(b)            Unless otherwise permitted under this Agreement, the Client must not use or permit any other person to use any of the Services for any unauthorised purpose.

7.         Suspension
Without limiting the Company’s rights under this Agreement, the Company may suspend the supply of Services immediately upon giving notice (which may be written or verbal) to the Client if:

(a)            it is an Emergency;

(b)            the company is directed or required to do under the law; or

(c)            the Client fails to pay an amount due and payable which is not the subject of a good faith dispute, and for which a valid tax invoice has been issued.

8.         Service Reduction
The Client agrees that if it wishes to reduce any full-time user (or any part of the Services that would result in a reduction of Service Fees) (Service Reduction):

(a)            the Client must provide at least 30 days written notice to the Company, in which case the Service Reduction will take effect at the end of the following month in                           which the notice was given. For the avoidance of doubt, as an example, a Service Reduction notification received in January will result in the relevant part of the                           Service terminating on the last day of February; and

(b)            such Service Reduction will not result in the termination, suspension or reduction of any other part of the Services or this Agreement.

9.         Termination
9.1        Without reason

For agreements entered into post April 1st , 2024.

Either party may terminate this Agreement on giving 90 days written notice to the other party.

For agreements dated pre-1st April 2024

Either party may terminate this Agreement on giving written notice to the other party provided that the termination will only take effect on the last day of the calendar month immediately following the calendar month in which the termination notice was provided. For example, a termination notice received in January will result in the Agreement terminating on the last day of February.

9.2        With reason
Notwithstanding clause 9.1:

(a)            The Company may terminate this Agreement immediately and without any prior notice:

(i)              if the Client breaches a material provision of this Agreement;

(ii)            if the Company gives the Client 14 calendar days’ written notice:

(A)            specifying the nature of the Client’s breach or default;

(B)            telling the Client what is required to be done to remedy the breach or default; and

(C)            advising the Client that the Company intends to terminate this Agreement if the Client fails to remedy the breach or the default within the given notice period; and

(iii)           if the Client fails to remedy the breach or default within the given notice period;

(iv)           if the Client is responsible for any act, publication or omission which the Company determines (acting reasonably) to be detrimental to the Company;

(v)            if the Client fails to pay the Service Fees to the Company strictly in accordance with clause 5.1;

(b)            the Client may immediately terminate this Agreement, by sending the Company a written notice of that fact if:

(i)              the Company repudiates a material or fundamental term of this Agreement; and

(ii)            the Company fails to remedy, to the satisfaction of the parties, a fundamental breach of service delivery incidental to this Agreement on three separate occasions                         within one calendar month after the date on which the Client issued the Company a written notice requiring the Company to remedy those breaches.

(c)            either party may terminate this Agreement immediately and without any prior notice if the other party:

(i)              becomes, or is highly likely to become, Insolvent; and

(ii)            commits a material breach of a term of this Agreement.

9.3        Payment upon termination
Upon termination of this Agreement any outstanding Service Fees payable by the Client to the Company in respect of any period prior to the Termination Date must be paid by the Client within 15 days after the Termination Date, or such other period mutually agreed between the parties.

9.4        Return of property
Upon termination of this Agreement for any reason:

(a)            the Client must deliver to the Company all materials and any other property of the Company which are in the possession or control of the Client at the Termination                         Date; and

(b)            the Company must deliver to the Client all materials and any other property of the Client which are in the possession or control of the Company at the Termination                         Date.

9.5        Implications of termination
Clause 8 (Termination), clause 9 (Termination), clause 17 (Dispute Resolution) and clause 19 (General Conditions) will continue to apply after termination of this Agreement.

10.       GST
10.1      Taxable supply
If the supply of goods or services by one party (GST Service Provider) to another party (GST Recipient) under this Agreement is a taxable supply, then the amount due to the GST Service Provider for that supply will be the sum of:

(a)            the amount that is payable under this Agreement by GST Recipient for that supply (or, if no amount is payable, the value of that supply); and

(b)            the amount of GST payable by the GST Service Provider in respect of that supply.

10.2      GST warranty
Each of the parties warrants and represents to the other that they are registered under the GST Law and will continue to remain registered at all times during the Term.

10.3      Tax invoice
The GST Recipient’s obligation to pay to the GST Service Provider the amount by which consideration is increased under clause 10.1 is subject to the GST Service Provider first providing to the Client a tax invoice conforming to the requirements of the GST Act.

10.4      Definitions
In this clause, any expression used that is defined in the GST Act has that defined meaning.

11.       Liability
11.1      Application of law
Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified, including under the Australian Consumer Law.

11.2      Limitation of liability
(a)            Subject to clause 11.2(c), the Company and the Company’s Affiliates is not liable to the Client for any loss or damage whatsoever or howsoever caused arising directly                   or indirectly in connection with the Agreement, except where such Loss:

(i)              is due to the negligence of the Company or any of its employees or agents; or

(ii)            is due to breach by the Company of any of its obligations under this Agreement.

(b)            Notwithstanding the generality of clause 11.1, neither party is liable to the other for consequential loss or damage which may arise in connection with this                                     Agreement, including for loss of data, loss of, or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct,                     indirect, economic, consequential howsoever arising by way of act or omission in contract or in tort. Each party hereby agrees to release and indemnify the other                           party to that extent.

(c)            The limitation of liability set out in clause 11.1 will not apply to any liability arising as a result of, or in connection with:

(i)              personal injury or death;

(ii)            fraud or wilful misconduct by either party; or

(iii)           infringement of a third party’s Intellectual Property Rights by either party.

(d)            To the fullest extent permitted by law, the Company excludes all warranties implied by law except as expressly set out in this Agreement. For the avoidance of                             doubt, the Company does not exclude any consumer warranties under the Australian Consumer Law.

11.3      Cap on liability
(a)            The Company will not be liable for any Loss suffered by the Client in relation this Agreement, to the extent that Loss is cause by an act or omission of the Client or its                   Affiliates.

(b)            Notwithstanding anything else in this Agreement, under no circumstances will the Company’s total aggregate liability under this Agreement, whether based upon                         warranty, contract, statute, tort (including negligence), or otherwise exceed the total amounts paid to the Company by the Client in the 12 months immediately prior                     to the relevant Loss (or if the Agreement has been operative for less than 12 months, the total amounts paid to the Company to the Client for that period) under this                   Agreement (Liability Cap).

(c)            The Client indemnifies the Company against all claims, demands, damages, costs or any other remedies actual, contingent or otherwise arising directly or indirectly                         out of this Agreement, the Services, the relationship between the parties or otherwise including liability for breach, in negligence or in any other tort or for any other                   common law or statutory action, which exceed the Liability Cap.

11.4      Client interference
Any unreasonable and material interference by the Client or its agents, servants, employees, subcontractors or other third party with the consent of the Client with equipment, network or configuration relevant to or of and incidental to this Agreement will void any guaranteed response time or quality of service commitments, remove any liability to the Client for the quality of the Service the subject of such interference and may also incur fees to cover costs of rectification as the rectification will be considered as an excluded item of this Agreement.

12.       Privacy
(a)            The parties must ensure that any personal information (as that term is defined in the Privacy Act 1988 (Cth)) (Personal Information) or data received or created by                         the  parties in connection with this Agreement is used and disclosed only to the extent necessary to perform this Agreement and is managed in accordance with the                     Privacy Act 1988 or in accordance with the specific express instructions of a disclosing party regarding the treatment of that party’s personal information.

(b)            The parties will take all necessary steps to ensure that the Personal Information managed by it in connection with this Agreement is protected against misuse,                               interference and loss and from unauthorised access, modification and disclosure.

(c)            The Client warrants to the Company that it has the legal right to disclose all data that it does in fact disclose to the Company under or in connection with this                                   Agreement.

13.        Confidentiality
13.1      Confidentiality obligations
Each party must:

(a)            keep the Confidential Information confidential and not disclose it or allow it to be disclosed to a third party except:

(i)              with the prior written approval of the other parties; or

(ii)            to officers, employees and consultants or advisers of the party (or its related bodies corporate) who have a need to know (and only to the extent that each has a                           need to know) for the purposes of this Agreement and are aware that the Confidential Information must be kept confidential; and

(b)            take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information.

13.2      Announcements
No announcement, press release or other communication of any kind relating to the negotiations of the parties or the subject matter or terms of this Agreement must be made or authorised by or on behalf of a party without the prior written approval of each other party unless that announcement, press release or communication is required to be made by law or any order of any court, tribunal, authority or regulatory body.

13.3      Exceptions
The obligations of confidentiality under this Agreement do not extend to information (whether before or after this Agreement is executed):

(a)            is required or reasonably necessary for or in connection with the Company performing the Services;

(b)            disclosed to a subcontractor or Affiliate of the Company in the course of providing the Services;

(c)            disclosed to a party, but at the time of disclosure is rightfully known to or in the possession or control of the party and not subject to an obligation of confidentiality                     on the party;

(d)            that is public knowledge (except because of a breach of this Agreement or any other obligation of confidence); or

(e)            required to be disclosed by law or any order of any court, tribunal, authority or regulatory body or in connection with the enforcement of this Agreement or by the                         rules of a recognised stock exchange.

13.4      Survival
This clause 13 continues despite the termination of this Agreement.

14.       Intellectual Property Rights
14.1      Ownership and licences
(a)            Except as set out in this clause, all Intellectual Property Rights in material developed by the Company in performing the Services will vest in the Client on receipt of                       full payment by the Company for the Services.

(b)            The Client grants to the Company a perpetual, irrevocable, non-exclusive, royalty free licence to use these materials with all rights as if the Company owned those                         materials.

14.2      Existing and Retained Intellectual Property
The Company retains ownership of all intellectual property rights to materials, templates and protocols used in the course of performing the Services that are:

(a)            created by or for the Company and existing at the date of this Agreement (Existing Intellectual Property); and/or

(b)            created by or for the Company independently of the Services or during the course of performing the Services which is reusable by the Company for other projects                          (Retained Intellectual Property).

15.       Subcontracting
The Company may subcontract Service obligations under this Agreement provided that the Company is:

(a)            not relieved from any obligations under this Agreement; and

(b)            liable for any breach of this Agreement committed, caused or contributed to by the subcontractors.

16.       Implied terms and consumer guarantees
Liability of the Company for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:

(a)            in the case of goods, to any one of the following as determined by the Company:

(i)              the replacement of the goods or the supply of equivalent goods;

(ii)            the repair of the goods;

(iii)           the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)           the payment of the cost of having the goods repaired; and

(b)            in the case of services, to any one of the following as determined by the Company:

(i)              the supplying of the services again; or

(ii)            the payment of the cost of having the services supplied again.

17.       Dispute Resolution
17.1      Dispute
(a)            Subject to clause 17.7, if a dispute arises between any of the parties (Disputing Parties) in connection with this Agreement (Dispute), the relevant dispute resolution                     procedures in this clause 17 must be complied with prior to the initiation of any action or proceeding.

(b)            A party who is a respondent to a court proceeding in connection with a Dispute may plead this Agreement as a bar to the court proceedings.

17.2      Dispute notice
(a)            A party wishing to resolve a Dispute must give notice in writing to the other Disputing Parties specifying reasonable details of the Dispute and requiring resolution of                  the Dispute by the parties under this clause 17 (Dispute Notice).

(b)            The Dispute Notice must state that a Dispute has arisen and identify the matters in dispute.

17.3      Good faith discussions
(a)            Within five Business Days after the date on which a Dispute Notice is received by a party, each Disputing Party must promptly meet and engage in good faith                                discussions with the objective of resolving the Dispute by agreement.

(b)            If, and only after a period of ten Business Days after the date on which a Dispute Notice is received, the Disputing Parties have not been able to resolve the Dispute,                     any Disputing Party may refer the Dispute to mediation.

17.4      Mediation
A mediator will be appointed:

(a)            by agreement between the Disputing Parties within five Business Days of the matter being referred to mediation in accordance with clause 17.3(b); or

(b)            if a mediator has not been agreed on by the Disputing Parties within five Business Days of the matter being referred to mediation in accordance with clause 17.3(b),                    then the party who served the Dispute Notice may within a further five Business Days apply to the President of the Resolution Institute to have a mediator                                    appointed.

17.5      Mediation procedures
The following procedures will apply in respect of the mediation:

(a)            the mediator must act impartially and assist the parties to reach a resolution of the Dispute by agreement;

(b)            the mediator is entitled to terminate the mediation if it forms the view that the mediation process has been exhausted;

(c)            any party to the mediation may appoint a person, including a legally qualified person, to represent it or assist it in the mediation; and

(d)            each of the parties must bear the mediator’s fees and any other costs of the mediation equally, but pay their own costs in relation to submissions or representations                     made to the mediator (including, without limitation, legal costs).

17.6      End of mediation
The dispute resolution procedures set out in this clause 17 will be deemed to be complied with if:

(a)            the mediation is concluded, but the Dispute is not resolved; or

(b)            the Dispute is not resolved within three months of the date on which a Dispute Notice is received.

17.7      Exception
This clause 17 does not prejudice the rights of a party at any time to seek injunctive, declaratory or other interlocutory relief (including for specific performance) against the other parties in order to protect or preserve its rights under this Agreement.

17.8      Survival
The terms of this clause 17 survive termination of this Agreement.

18.       Notices
18.1      Form
(a)            Any notice or other communication including, any request, demand, consent or approval, to or by a party to this Agreement:

(i)              must be in legible writing and in English;

(ii)            where the sender is a Company, must be signed by an officer or under the common seal of the sender;

(iii)           is regarded as being given by the sender and received by the addressee:

(A)            if sent by hand, when delivered to the addressee;

(B)            if by post, three Business Days from and including the date of postage;

(C)            if by facsimile transmission, whether or not legibly received, when transmitted to the addressee; or

(D)            if by email, when transmitted to the addressee,

but if the delivery or receipt is on a day which is not a Business Day or is after 4.00pm (addressee’s time) it is regarded as received at 9.00am on the following Business Day; and

(iv)           can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be                               genuine, correct and authorised by the sender.

(b)            A facsimile transmission is regarded as legible unless the addressee communicates with the sender within two hours after transmission is received or regarded as                        received under clause 18.1(a)(ii), and informs the sender that it is not legible.

(c)            In this clause 18.1, a reference to an addressee includes a reference to an addressee’s officer, agents or employees or any person reasonably believed by the sender                    to be an officer, agent or employee of the addressee.

18.2      Address for service
The address for service for the parties are set out in this Agreement, or as otherwise notified in writing to the other parties from time to time.

19.       General Conditions
19.1      Governing law
The laws of the State govern this Agreement. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts in the State.

19.2      Giving effect to this Agreement
The parties must do everything (including execute any document), and must ensure that its employees and agents do anything (including execute any document) that may be reasonably required to give full effect to this Agreement.

19.3      Waiver of rights
A right may only be waived by a party in writing, signed by that party, and:

(a)            no other conduct of the party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of                    the right;

(b)            a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and

(c)            the exercise of a right does not prevent any further exercise of that right or of any other right.

19.4      Operation of this Agreement
(a)            This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty                         relating to that subject matter is replaced by this Agreement and has no further effect.

(b)            Any right that a party may have under this Agreement is in addition to, and does not replace or limit, any other right that the party may have.

(c)            Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement                        enforceable, unless this would materially change the intended effect of this Agreement.

(d)            For the avoidance of doubt, any indemnity provided by one party to another under the terms of this Agreement survives termination of this Agreement or completion                  of any transactions contemplated hereunder.

19.5      Amendment
A provision of this Agreement, or right, power or remedy created under it, may not be varied except as agreed in writing by all parties.

19.6      Assignment
(a)            Subject to clause 19.6(b), neither party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this                         Agreement without the prior written agreement of the other party.

(b)            A party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee                      undertakes in writing to the other party to be bound by the obligations of the assignor under this Agreement.

19.7      Counterparts
(a)            This Agreement may consist of several counterparts and if so the counterparts taken together constitute one and the same instrument.

(b)            This Agreement is not binding on any party unless one or more counterparts have been duly executed by each party to this Agreement.

(c)            This Agreement is binding on the parties on the exchange of counterparts. A copy of the counterpart sent by email:

(i)              must be treated as an original counterpart;

(ii)            is sufficient evidence of the execution of the original; and

(iii)           may be produced in evidence for all purposes in place of the original. 

End of Terms & Conditions 



















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