Master Service Terms
for services provided by
Earthlink Alliance Pty Ltd
(ABN 81 553 995 202)
acting as the trustee of the Earthlink Alliance Unit Trust
ContentsIntroduction General conditions
- Definitions and interpretation
- Engagement of Company
- Provision of the Services
- Fees and Charges
- Intellectual Property
- Liability and remedies
- The Company provides software consulting, design and engineering services to its clients.
- The Recipient would like to engage the Company to provide the services set out in the Proposal and the Company agrees to do so in accordance with these Master Service Terms (Terms).
- These Terms set out the rights and obligations of the parties in relation to the supply of those services.
- The Terms form part of the Proposal agreed by the parties (including any amendments to the Proposal from time to time) and apply in relation to that Proposal.
Definitions and interpretation
1.1 DefinitionsThe following definitions apply in these Terms and the Agreement, unless the context requires otherwise:
- Agreement means the agreement described in clause 3.1.
- Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.
- Billing Period means “Billing Period” specified in the Proposal or in any direct debit agreement agreed between the parties. The Billing Period is indicative only and does not limit the rights of the Company’s right to make a payment claim for Fees and Charges at other times.
- Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Melbourne, Victoria are open for business.
- Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.
- Charges means the Fees, the Expenses and all amounts payable to the Company under the Agreement (including under clauses 3.12, 4.1, 5.1, 5.2, 5.6, 6.3, 10.2, 11.5 for Out-of-Scope Work).
- Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
- Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of
any of them, including:
- any information that is specifically designated by any of them as confidential;
- any information which, by its nature, may reasonably be regarded as confidential;
- any information relating to:
- the Agreement, the Proposal (as amended), the Engagement, the Services or the Deliverables (including partially completed Deliverables);
- any agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
- customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
- Intellectual Property Rights,
- any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.
- Consequential Losses means any indirect or consequential loss or damage (including loss of profits, opportunity or production).
- Control has the meaning given in Section 50AA of the Corporations Act.
- Copyright Act means the Copyright Act 1968 (Cth).
- Corporations Act means the Corporations Act 2001 (Cth).
- Deadline Date means, the time, date or period by which, as the context requires the Engagement or Phase is to be completed in accordance with clause 3.5, as specified in the Proposal and adjusted in accordance with clause 3.11.
- Dependencies means the specific activities or tasks of the Recipient, as described in the Proposal.
- Deposit means the deposit specified in the Proposal (if any).
- Default Rate means the rate of interest per annum specified in the Proposal (if any).
- Deliverable means each item that is developed or created pursuant to the Agreement, as identified in the Proposal (if any).
- Designated Representative of a party means the person named in the Proposal as the “Designated Representative” of the relevant party.
- Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.
- Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.
- Engagement means the engagement for the Company to provide Services to the Recipient.
- Event of Default means any of the following on the part of the Recipient:
- committing any breach of clause 3.7, 3.8, 3.9, 3.12, 4.1, 5.1, 5.2, 5.6, 6.3, 7.1, 8.1, 10.2, 11.5 or 12.1;
- committing any material or persistent breach of the Agreement;
- repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, the Agreement;
- if the Recipient is a company, undergoing a Change of Control without the prior written consent of the Company;
- misleading the Company in any material way; and/or
- an Insolvency Event occurring in respect of the Recipient.
- Event of Delay means:
- the occurrence of any Event of Default on the part of the Recipient;
- any other act or omission of the Recipient; or
- any event, act or omission which delays the performance of work by the Company and is beyond the reasonable control of the Company.
- Exclusions means each of the following items and/or costs, and any others identified in the Proposal (as amended) as an exclusion:
- each subscription to a system or technology for customer relationship management;
- the costs of and incidental to production of physical collateral;
- the costs of and incidental to advertising; and
- the costs of and incidental to security management.
- Existing IP means all of the Intellectual Property Rights held by or vested in a party at the commencement of the Engagement, and any alterations, additions, improvements, enhancements and modifications made, developed or conceived to those Intellectual Property Rights.
- Expenses means the expenses for which the Company is entitled to be reimbursed by the Recipient pursuant to clause 4.7.
- Fees means the total fees (excluding GST, Expenses and payments for Out-of-Scope Work) to be paid by Recipient to the Company in respect of the Engagement, as specified in the Proposal and adjusted in accordance with these Terms.
- Fixed Price means, in respect of an Engagement, the price specified in the relevant Proposal as the price (excluding GST, Out-of-Scope Work and Expenses) for any Phase or for part of any Phase (as the case may be).
- Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
- GST has the same meaning given to that expression in the GST Law.
- GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
- GST Law has the same meaning given to that expression in the GST Act.
- Hourly Rate means the hourly rate specified in the Proposal (if any).
- Insolvency Event means, in respect of a party:
- where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
- where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
- a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
- the party is otherwise unable to pay its debts as and when they fall due.
- In-Scope Work means the work that is within the scope of the services to be provided by the Company, as described in the Proposal.
- Input Tax Credit has the meaning given in the GST Law.
- Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether current or future, registered or unregistered, and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
- Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees
and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
- liabilities on account of Tax;
- interest and other amounts payable to third parties;
- legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
- all amounts paid in settlement of any Claim.
- Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
- Non-Solicitation Period means each of the following periods of time:
- 12 months; or that is not valid and enforceable
- 9 months; or if that is not valid and enforceable
- 6 months.
- Out-of-Scope Rate has the meaning given in clause 4.3.
- Out-of-Scope Work means work other than In-Scope Work that the Company agrees to perform in relation to the Engagement and includes, but is not limited to, work described in the Proposal as being out-of-scope.
- Personal Information has the meaning given in the Privacy Act.
- Phase means any particular phase, distinct period or part of the Services specified in the Proposal.
- Privacy Act means the Privacy Act 1998 (Cth).
- Project IP means Intellectual Property Rights which the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) pursuant to the Agreement in relation to any Deliverable, excluding the Existing IP.
- Proposal means, in respect of an Engagement, the document headed “Proposal” (of which these Terms form part) which sets out the scope of the Services for that Engagement and is accepted by the parties in accordance with these Terms, and any subsequent variation of the Proposal in accordance with these Terms that is in force from time to time.Note: Commonly, the scope of work in the document headed “Proposal” will be supplemented and amended from time to time during the Engagement by an agreed “Statement of Work”.
- Recipient means the recipient of the Services as named in the Proposal.
- Relevant Trust means, in respect of any Trustee, the trust in respect of which the Trustee is expressed to have entered into the Agreement as trustee.
- Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
- Services means the In-Scope Work and the Out-of-Scope Work.
- Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.
- Start Date means the date on which the Agreement is made in accordance with clause 3.2, or such other date as the parties may agree in writing.
- Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).
- Tax or Taxation means:
- any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
- unless the context otherwise requires, Stamp Duty and GST; and
- any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
- Terms means the Master Terms of Service.
- Termination Threshold means the date, time or event identified in the Proposal, before which the Recipient is not permitted to terminate the Agreement on notice (other than in accordance with clause 11.2).
- Trustee means any party to the Agreement that is expressed to have entered into the Agreement in its capacity as a trustee of any trust.
- Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.
1.2 InterpretationThe following rules of interpretation apply in the Agreement unless the context requires otherwise:
- headings in these Terms are for convenience only and do not affect the interpretation or construction of the Agreement;
- no rule of construction applies to the disadvantage of a party because these Terms or the Agreement are prepared by (or on behalf of) that party;
- where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
- a reference to a document (including any Proposal, Statement of Work, these Terms and the Agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced from time to time;
- references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of the Agreement;
- in each schedule to the Agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
- a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
- an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
- a reference to writing includes any communication sent by post or email;
- a reference to time refers to time in Melbourne, Victoria and time is of the essence;
- all monetary amounts are in Australian currency;
- a reference to a “liability” includes a present, prospective, future or contingent liability;
- the word “month” means calendar month and the word “year” means 12 calendar months;
- the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
- a reference to a “party” is a reference to a party to the Agreement and a reference to a “third party” is a reference to a person that is not a party to the Agreement;
- a reference to any thing is a reference to the whole and each part of it;
- a reference to a group of persons is a reference to all of them collectively and to each of them individually;
- words in the singular include the plural and vice versa; and
- a reference to one gender includes a reference to the other genders.
Engagement of Company2.1 The Recipient engages the Company on a non-exclusive basis to provide the Services to the Recipient, and the Company accepts that engagement and agrees to provide the Services to the Recipient, in accordance with these Terms.
2.2 Commencement and durationThe Company’s engagement with the Recipient will:
- commence on the Start Date; and
- continue until the Services have been delivered in full or the Agreement is terminated in accordance with clause 11.
2.3 Nature of relationshipThe Company is an independent contractor of the Recipient and nothing in the Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.
Provision of the Services
Agreement and Proposal3.1 The Agreement comprises these Terms and the Proposal (as amended) and these Terms apply to the Engagement to the exclusion of all other terms and conditions. 3.2 The Company’s obligation to provide the Services does not arise unless and until:
- the Agreement is made, which only occurs when either:
- both parties have signed the Proposal and exchanged the signed Proposal; or
- the Company has provided a Proposal and the Recipient has provided a written purchase order in respect of the Services; and
- the Company receives payment of the Deposit.
Standards3.4 The Company will perform the Services with due care and skill using Representatives who have the appropriate expertise. In addition, the Company must, in providing the Services:
- be honest and diligent;
- maintain reasonable ethical standards;
- communicate with the Recipient regarding progress of the Services; and
- endeavour to ensure that the design and functionality of any Deliverable meets the specifications in the Proposal.
Deadline Dates3.5 Subject to compliance with the Agreement by the Recipient, the Company must endeavour to ensure that the Engagement, and each Phase, is completed on or before the applicable Deadline Date. 3.6 Unless otherwise agreed, the Company and its Representatives are only required to provide the Services during the Company’s usual business hours, being 9.00am – 5.00pm, Monday to Friday (excluding public holidays).
Assistance by Recipient3.7 The Recipient must provide such assistance and co-operation to the Company as the Company requests from time to time to promote the timely and efficient performance and completion of the Services, including without limitation:
- providing the Company and its Representatives with access to the premises, personnel and data of the Recipient;
- making any decision, providing any approval, performing any action and providing any information, data and content which is relevant to performance or completion of the Services;
- performing or providing the Dependencies to the reasonable satisfaction of the Company,
Out-of-Scope Work3.10 The Company is not obliged to perform or complete any Out-of-Scope Work, but may agree to do so from time to time. If the Company agrees to provide Out-of-Scope Work, these Terms (including Out-of-Scope Rates) apply to those Services.
Adjustment of Deadline Date and Fees3.11 If an Event of Delay contributes to any delay in the Company’s performance of the Services:
- the Company may, by notice to the Recipient, declare that a delay has occurred and specify the extent of the delay; and
- each Deadline Date which is affected by the delay, is automatically extended to the extent of the delay declared in the Company’s notice.
- in connection with any delay to which an Event of Delay has contributed;
- in connection with any action taken by the Company to mitigate any delay to which an Event of Delay has contributed, or the consequences of that delay; and/or
- in connection with the Company accelerating the works.
- the Agreement is made, which only occurs when either:
Fees and Charges
Fees4.1 The Recipient agrees to pay the Fees and Charges to the Company as and when due under or pursuant to the Agreement, and that time is of the essence. 4.2 If, and to the extent that, the Fees for any Services (including any Phase) are to be calculated by reference to Hourly Rates (as distinct from a Fixed Price), the “Fees” specified in the Proposal constitute a non-binding estimate, and the Fees payable under the Agreement are to be calculated on the basis of the time spent by the Company in providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 4.4.
Charges for Out-of-Scope Work4.3 The Recipient will pay the Company the hourly rate set out in the Proposal for any Out-of-Scope Work which the Company agrees to perform (the Out-of-Scope Rate).
Hourly Rates and Out-of-Scope Rates4.4 Hourly Rates and Out-of-Scope Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15 minute units, with 4 units per hour – eg, the time charged for an attendance of up to 15 minutes will be 1 unit and the time charged for an attendance between 15 and 30 minutes will be 2 units. 4.5 The Company must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate and/or Out-of-Scope Rate applies and provide the Recipient with a copy of such records upon reasonable notice as may be requested by the Recipient from time to time. 4.6 The Hourly Rate and Out-of-Scope Rate may be varied by amendment of the Proposal pursuant to clause 15.7.
Reimbursement of Expenses4.7 The Recipient must, on request from the Company in advance of any expenses being incurred by the Company in the course of providing the Services (Expenses), pay the Company on account of the Expenses to be incurred by the Company. The:
- the Company must:
- obtain the consent of the Recipient before incurring any Expenses;
- on request, provide the Recipient with documentation for the Expenses incurred; and
- the Recipient will not be required to reimburse the Company for any amount of GST that the Company has paid, or is liable to pay, in relation to any supply acquired by the Company from any third party if the Company has received, or is entitled to receive, an Input Tax Credit for that GST.
- the Company must:
Deposit5.1 The Recipient must pay the Deposit to the Company on or by the Start Date unless otherwise specified in the Proposal. The Deposit is not refundable and the Company is not required to hold the Deposit separately or for the benefit of the Recipient.
Payment5.2 The Company may make a claim for payment of Fees and Charges at any time and from time to time, whether in advance or in arrears, and the Recipient must pay the Fees and Charges:
- in accordance with any direct debit arrangement agreed between the parties from time to time; or
- as invoiced by the Company from time to time, on or before the due date for payment specified in the relevant invoice.
Method of payment5.3 The Recipient must pay the Company by electronic funds transfer, direct debit as agreed or such other method as the Company notifies to the Recipient from time to time.
No set-off or deduction5.4 All amounts payable to the Company under or in connection with the Agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under the Agreement (unless otherwise required by law). 5.5 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with the Agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.
Default interest5.6 If the Recipient fails to pay any sum payable by it under the Agreement to another party at the time and otherwise in the manner provided in the Agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 5.6 is in addition to any other remedies that the other party may have in respect of such late payment. 5.7 If a liability of a party to another party under the Agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.
Definitions regarding GST6.1 In this clause 6:
- expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
- any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
- any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.
Consideration is exclusive of GST6.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under the Agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.
Receiving Party to pay additional amount6.3 If GST is imposed on any supply made under or in accordance with the Agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with the Agreement.
Fines, penalties and interest6.4 The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.
Reimbursement6.5 If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with the Agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.
Adjustment events6.6 If, at any time, an adjustment event arises in respect of any supply made by a party under the Agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 6.3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.
Confidentiality7.1 Subject to clauses 7.3 and 7.4, a Disclosee must:
- keep all Confidential Information confidential;
- not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with the Agreement;
- not disclose or make available any Confidential Information in whole or in part to any third party;
- (d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with the Agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
- ensure that any and all Authorised Third Party Disclosees:
- comply with the obligations in the Agreement as if each of them was a party to the Agreement in the place of the Disclosee; and
- do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of the Agreement by the Disclosee.
Exceptions7.3 The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under the Agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure. 7.4 Subject to clause 7.5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):
- was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:
- unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
- received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;
- is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
- in circumstances that constitute a breach of the Agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 7.1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in the Agreement as if they were parties to the Agreement in the place of the Disclosee); or
- that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
- is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;
- is required by law or court order to be disclosed, provided that the Disclosee must:
- promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
- reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;
- is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
- is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.
Non-disparagement8.1 Subject to clause 8.2, on and from the date of the Agreement, each party must not:
- make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
- cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,
- promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
- reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.
Existing IP9.1 The parties agree that:
- all Existing IP of the Company is and will be owned by and vested in the Company;
- all Existing IP of the Recipient is and will be owned by and vested in the Recipient; and
- Existing IP is Confidential Information to which the Agreement applies, and that for the purposes of the Agreement, the party which owns the Existing IP is the Discloser and the other party is the Disclosee, in respect of the Existing IP.
Project IP9.3 Subject to clause 9.9 and the Special Conditions (if applicable), the Project IP is exclusively owned by and vested in the Company.
Assignment9.4 Subject to clause 9.9 and the Special Conditions (if applicable), the Recipient hereby assigns, transfers and conveys to the Company all current and future right, title and interest in all Project IP and acknowledges that all future Project IP will vest in the Company on and from creation.
Recipient’s duty to assist the Company9.5 Subject to clause 9.9 and the Special Conditions (if applicable), the Recipient must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Company’s title to any Project IP, in Australia or in such other countries as the Company may require at its discretion.
Permitted use9.6 Subject to clause 9.9 and the Special Conditions (if applicable), the Recipient may not use or reproduce any Project IP without the Company’s prior written approval, except in the performance of its duties under the Agreement.
Moral rights9.7 Subject to clause 9.9 and the Special Conditions (if applicable), the Recipient consents to the doing of any acts, or making of any omissions, by the Company or any of the Company’s employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Project IP, including:
- not naming the Recipient as the author of a Work; or
- amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Recipient is not named as the author of the amended or modified Work,
Transfer of rights in Relevant IP9.8 Clause 9.9 applies on and from the later of:
- the cessation of the Engagement (including by termination); and
- the time at which the Company receives payment of the Fees, Charges and all other amounts payable under the Agreement (including under clause 11.5, where applicable),
- all of the Company’s right, title and interest in and to the Project IP automatically transfers to and vests in the Recipient immediately;
- if, and to the extent, that any of the Company’s Existing IP is integrated or incorporated into any Deliverable that is provided to the Recipient pursuant to the Agreement (Integrated IP), the Company automatically grants to the Recipient with immediate effect, a non-exclusive, perpetual, irrevocable, royalty-free licence to use the Integrated IP for the purpose of lawfully using the relevant Deliverable, and the Recipient acknowledges and agrees:
- that the Company is the exclusive owner of the Existing IP (including the Integrated IP);
- that the Recipient must not engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s right, title, and interest therein;
- that the Recipient must not use any service marks, trademarks or trade names owned or used by the Company (Trademarks);
- that the Recipient must not cause diminishment of value of Trademarks through any act or representation;
- that the Recipient must not apply for, acquire, or claim any right, title, or interest in or to any Trademarks, or others that may be confusingly similar to any of them, through advertising or otherwise; and
- that the Recipient must not do anything to challenge, or support a challenge of, the Company’s ownership of or rights to or in any one or more of the Trademarks; and
- the Company consents to the doing of any acts, or making of any omissions, by the Recipient or any of the Recipient’s Representatives that infringes the Company’s Moral Rights in any Works that constitute Project IP, except the Company’s right to be named as an author of a work.
Liability and remedies
Indemnity10.1 Subject to clauses 10.4 and 10.7, the Company indemnifies the Recipient against any and all Losses (excluding Consequential Losses) suffered or incurred by the Recipient, to the extent directly caused by any breach of the Agreement which the Company has failed to remedy following notice of breach pursuant to clause 11.2, except to the extent caused or contributed to by the Recipient. 10.2 Subject to clause 10.7, the Recipient indemnifies the Company against any and all Losses (excluding Consequential Losses) suffered or incurred by the Company, to the extent directly caused by any Event of Default in respect of the Recipient, except to the extent caused or contributed to by the Company.
Indemnities continuing10.3 Each indemnity contained in the Agreement is an additional, separate, independent and continuing obligation that survives the termination of the Agreement and cessation of the Engagement, despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
Limitation of liability10.4 To the maximum extent permitted by law, the Company and its Representatives expressly:
- (Disclaimer of implied terms) exclude any term, condition, or warranty implied into the Agreement by any applicable law, to the extent permitted by law;
- (Disclaimer of warranties) disclaim all conditions, representations, guarantees and warranties (whether express or implied, statutory or otherwise) in relation to the Services and the Proposal, including any warranty of fitness for a particular purpose or non-infringement. Without limitation, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:
- the Recipient will achieve any particular results from the provision of the Services;
- any particular individuals will perform the Services on behalf of the Company; or
- the Services will:
- be error-free or that errors or defects will be corrected; or
- meet the Recipient’s requirements or expectations; and
- (Limitation of liability) to the extent permitted by law, limit their aggregate liability in respect of any and all Claims for any Losses (including Consequential Losses) that the Recipient and/or any of its Representatives may bring against the Company under or in respect of the Agreement, the Services or the Proposal (whether in contract, tort or otherwise) to the following at the election of the Company:
- re-supply of the Services; or
- refund of any amounts paid under the Agreement by the Recipient to the Company for the Services,
Force majeure10.5 To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under the Agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company and the Company shall be entitled to a reasonable extension of time for the performance of such obligations, and the Recipient acknowledges and agrees that the Company holds the benefit of this clause 10.5 for itself and as agent and trustee for and on behalf of each of its Representatives.
Remedies for breach10.6 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality), clause 8 (Non-disparagement) or clause 12 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion. 10.7 A party must take all reasonable steps to avoid or mitigate any loss or liability which it might suffer or incur in relation to the Agreement.
Termination for breach11.1 The Company may terminate the Agreement immediately by notice to the Recipient if an Event of Default occurs in respect of the Recipient. 11.2 If the Company commits any material or persistent breach of the Agreement, the Recipient may (but is not obliged to) provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Recipient may terminate the Agreement with immediate effect upon providing the Company with a further notice of termination in writing.
Termination with notice11.3 Provided the Proposal specifies that the Recipient may terminate the Agreement on notice, then without limitation to its rights under clause 11.2, the Recipient may give notice of termination to the Company on or after the Termination Threshold, provided that the date of termination is at least 20 Business Days after the notice of termination is given. 11.4 The Company may, without limitation to its rights under clause 11.1, terminate the Agreement at any time by giving at least 20 Business Days’ notice to the Recipient. The Recipient may waive all or part of such notice period.
Effect of termination11.5 In the event of any termination of the Agreement in any circumstances and for any reason whatsoever:
- the Recipient will be and remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced or otherwise due and payable prior to the date of termination (for the avoidance of doubt, in the event of any termination of the Agreement by the Recipient, including Charges incurred by the Company for the purchase of materials for those Services prior to such termination); and the Company may send to the Recipient a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 5 will apply in respect of the invoice.
During notice period11.6 In the event that the Engagement under the Agreement is terminated upon notice by either party the Recipient may, at its absolute discretion, require the Company to refrain from providing the Services during the relevant notice period.
Partially completed deliverables11.7 Upon the cessation of the Engagement under the Agreement (including by termination of the Agreement), and subject to receipt by the Company of payment of all unpaid Fees, Charges and other amounts payable by the Recipient under and in accordance with the terms of the Agreement:
- the Company shall deliver to the Recipient any Deliverable(s) included within the scope of the Services in the form in which they exist at that time, which may be in partially developed form with incomplete design and functionality characteristics;
- the Company shall have no obligation to provide the Deliverable in any other form or to provide any other Services; and
- the Recipient accepts each Deliverable in partially developed form with such design and functionality features as subsist in the relevant Deliverable at that time, and releases the Company from any Claim in connection with the delivery of partially developed and incomplete Deliverables.
Ipso facto legislation11.8 If any provision of the Agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of the Agreement, to the maximum extent permitted by law:
- time is of the essence in respect of all obligations of that party under the Agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
- any breach of the Agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of the Agreement,
Accrued rights11.9 Termination of the Agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
Survival11.10 The obligations of the parties under clause 4 (Fees and charges), clause 5 (Payment), clause 6 (GST), clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies) clause 12 (Non-solicitation) and this clause 11 will survive the termination of the Agreement and cessation of the Engagement.
Non-solicitation12.1 During the Company’s engagement with the Recipient under the Agreement and for each Non-Solicitation Period thereafter, the Recipient must not, without the Company’s prior written consent (which the Company may withhold or delay in its absolute discretion), directly or indirectly:
- (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Company and any of the Company’s suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
- (non-solicitation of staff) induce, encourage or solicit any of the Company’s officers, employees, contractors or agents to cease their employment, engagement or agency with the Company.
- the restraints in clause 12.1 constitute several separate covenants and restraints consisting of each of clauses 12.1(a) and (b) combined with each separate Non-Solicitation Period severally;
- each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Company’s goodwill and business;
- the Recipient has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
- breach by the Recipient of any of those separate covenants and restraints would be unfair and calculated to damage the Company’s goodwill and business and would lead to substantial loss to the Company.
Trustees13.1 The Company enters into the Agreement only in its capacity as trustee of the Relevant Trust and in no other capacity. 13.2 A liability arising under or in connection with the Agreement can be enforced against the Company only to the extent to which it can be satisfied out of property of the Relevant Trust out of which the Company is actually indemnified for the liability. 13.3 This limitation of liability applies despite any other provision of the Agreement and extends to all liabilities and obligations of the Company in any way connected with the Agreement, including any representation, warranty, conduct, omission, agreement or transaction related to the Agreement. 13.4 No party may sue the Company in any capacity other than as trustee of the Relevant Trust, including seeking the appointment of a receiver (except in relation to property of the Relevant Trust), a liquidator, an administrator or any similar person to the applicable Trustee or to prove in any liquidation, administration or arrangement of or affecting the applicable Trustee (except in relation to property of the Relevant Trust). 13.5 Clauses 13.1 to 13.4 will not apply to any obligation or liability of the Company to the extent that it is not satisfied because, under the trust agreement establishing the Relevant Trust or by operation of law, there is a reduction in the extent of the Company’s indemnification out of the assets of the Relevant Trust, as a result of the Company’s fraud, negligence or breach of trust. 13.6 The Company is not obliged to do, or refrain from doing, anything under the Agreement (including incurring any liability) unless its liability is limited in the same manner as set out in clauses 13.1 to 13.4.
Notices14.1 A notice given to a party under the Agreement:
- must be in writing in English;
- must be sent to the address or email address of the relevant party (as set out in the Proposal) if the notice relates to breach or termination, and otherwise may be sent either to the address or email address of the relevant party or to the address or email address of the party’s Designated Representative; and
- delivered/sent either:
- by commercial courier;
- by pre-paid post;
- if the notice is to be served by post outside the country from which it is sent, by airmail; or
- by e-mail.
- if delivered personally, at the time of delivery;
- if delivered by commercial courier, at the time of signature of the courier’s receipt;
- if sent by pre-paid post, 48 hours from the date of posting;
- if sent by airmail, five days after the date of posting;
- if sent by e-mail in accordance with clause 14.1(b), at the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the email server or internet service provider of the party or Designated Representative (as the case may be) that the message has not been delivered,
- in the case of post – that the envelope containing the notice was properly addressed and posted; and
- in the case of email – the email was transmitted to the party’s email server or internet service provider.
- designate a named person as its Designated Representative (and record it in the Proposal);
- provide an address and email address for its Designated Representative (and record it in the Proposal); and
- promptly notify the other party of any change(s) to its address or email address for service of notices;
- promptly notify the other party of any change(s) to its Designated Representative and of the address or email address of the Designated Representative for the service of notices.
Further assurances15.1 Each party:
- must (at its own expense, unless otherwise provided in the Agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of the Agreement;
- represents and warrants to the other than it has the requisite power and authority to execute the Agreement and to perform the Agreement in accordance with its terms; and
- represents and warrants to the other that the person named as its Designated Representative has full power and authority to act on behalf of the party as required for the purposes of the Agreement.
Third parties15.2 The Agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Costs15.3 All costs and expenses in connection with the negotiation, preparation and execution of the Agreement, and any other agreements or documents entered into or signed pursuant to the Agreement, will be borne by the party that incurred the costs.
Entire agreement15.4 The Agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to the Agreement other than those expressly stated in it or necessarily imposed or implied by statute.
Severability15.5 If a provision of the Agreement is invalid or unenforceable in a jurisdiction:
- it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
- that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.
No waiver15.6 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under the Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under the Agreement.
Amendment15.7 Subject to clause 15.8, the Agreement may not be varied except by written instrument executed by the parties. 15.8 The Proposal, including the scope of work in it:
- may be varied by written agreement between the Designated Representatives of the parties from time to time (including by execution of any “Statement of Work” by those Designated Representatives);
- may be varied by the Company in minor ways as necessary to facilitate performance of the Services or supply of Deliverables in an efficient manner;
- is taken to be varied by each (and each successive) “Statement of Work” to which the parties agree in writing after the date of the Agreement, to the extent of inconsistency; and
- is otherwise taken to be supplemented by each (and each successive) “Statement of Work” to which the parties agree in writing after the date of the Agreement.
Assignment15.9 The Recipient must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under the Agreement without the prior written consent of the Company.
Counterparts15.10 The Agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
Electronic exchange15.11 Delivery of an executed counterpart of the Agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart. 15.12 If a party delivers an executed counterpart of the Agreement under clause 15.11:
- it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of the Agreement; and
- in any legal proceedings relating to the Agreement, each party waives the right to raise any defence based upon any such failure.
Governing law and jurisdiction15.13 The Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Victoria, Australia. 15.14 The parties irrevocably agree that the courts of Victoria, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Special Condition 11.1 Special Condition 1 applies if, and only if:
- the Recipient is not in breach of clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies) or clause 12 (Non-solicitation) of the Agreement;
- the Company and Recipient have executed a further agreement in writing by which the Recipient engages the Company to fully develop and deliver any software application or platform which the Company is or has previously been engaged by the Recipient to deliver as a prototype (Full Development Agreement); and
- the Proposal in respect of the Full Development Agreement specifies that Special Condition 1 applies.
- all of the Company’s right, title and interest in and to the Project IP automatically transfers to and vests in the Recipient immediately;
- if, and to the extent, that any of the Company’s Existing IP is integrated or incorporated into any Deliverable that is provided to the Recipient pursuant to the Agreement (Integrated IP), the Company automatically grants to the Recipient with immediate effect, a non-exclusive, perpetual, irrevocable, royalty-free licence to use the Integrated IP for the purpose of lawfully using each relevant Deliverable, and the Recipient acknowledges and agrees:
- that the Company is the exclusive owner of the Existing IP (including the Integrated IP);
- the Company consents to the doing of any acts, or making of any omissions, by the Recipient or any of the Recipient’s Representatives that infringes the Company’s Moral Rights in any Works that constitute Project IP, except the Company’s right to be named as an author of a work; and
- Special Condition 1 prevails to the extent of inconsistency with any other term or condition of the Agreement.
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