General Terms and Conditions
Experience Digital Pty Ltd (ABN 26 158 151 583)
The following General Terms and Conditions apply to all parties interacting with Experience Digital Pty Ltd (ED) whether or not in conjunction with an applicable Master Services Agreement (MSA), Statement of Work (SOW) or any other agreement.
References in the General Terms and Conditions to an or this MSA and /or a SOW refer to the specific MSA and / or SOW executed between the Parties.
These General Terms and Conditions may be amended from time to time.
1. Applicability of this Agreement
This Master Services Agreement(‘MSA’) is applicable to all Statements of Work (SOW) agreed between the Parties during the Term of this MSA. The provisions of this MSA will apply to any SOW which has referenced it notwithstanding the expiry or termination of this MSA.
2. Scope of this MSA and Application of Schedules
- This MSA contains the terms and conditions under which ED will provide Services to the Client.
- The particulars of the Services to be supplied will be described in a separate Schedule(s) each referred to as a Statement of Work (SOW).
- In respect of this MSA, the Parties agree that whilst they will work collaboratively and in good faith neither Party commits nor guarantees that it will become a Party to any SOW.
2.2. New Services
- Except as required by this MSA or a SOW, the performance of any new or additional services (New Services) will require the Parties to either:
- execute a new SOW; or
- agree a Change Request in writing.
3. Defined Terms and Interpretation
- Capitalized words have the meaning given to them in the Dictionary at Annexure A.
- The interpretation clause in Annexure A sets out rules of interpretation for this MSA.
4. Commencement and Term
- This MSA commences on the date of its signing by the last Party (Commencement Date) and will remain in force until terminated in accordance with these General Conditions.
- Once executed, each SOW will be incorporated into and form part of this MSA.
- Each SOW commences on the date specified in the SOW and continues until the Services have been completed or the earlier termination of the SOW.
5. ED’s Obligations
5.1. General obligations
- Subject to payment of the Fees specified in a SOW, ED will use all reasonable efforts to provide the Services as specified and in accordance with the terms of that SOW.
- Where a SOW requires an upfront payment to be made, ED will not commence the delivery of Services until that payment is received in full.
- ED has complete discretion over its working methods and the Personnel utilised to provide the Services.
- If ED encounters an Unexpected Issue such that the Services cannot be delivered in the manner intended, ED will notify the Client of the Unexpected Issue, together with the implications in respect of the Services and the related Fees. The Parties will seek to reach agreement on any required changes to the SOW.
- If the Parties are unable to reach agreement on how to deal with the implications of an Unexpected Issue, then this will be escalated in accordance with the Dispute Resolution arrangements set out below.
5.2. Standards of performance
ED undertakes to, and warrants that it will, perform its obligations:
- with due care and skill and in a professional manner;
- in accordance with the Service Levels (if any) specified in a SOW;
- in an efficient and responsive manner in accordance with any agreed quality assurance systems, processes and standards; and
- in accordance with all relevant Laws and any standards, policies and procedures of the Client notified to ED.
5.3. Resourcing and approvals
Except to the extent otherwise specified in a SOW, ED agrees that it:
- will be solely responsible for procuring, establishing and maintaining all materials, Personnel, facilities, equipment and other resources necessary for it to perform its obligations under this MSA and each SOW; and
- will obtain and maintain, all licenses, approvals, authorisations, consents or other permissions necessary for it to perform its obligations.
Clause 5.3 does not apply to materials, Personnel, facilities, equipment and resources that the Client needs to operate its business.
ED may subcontract the performance of any part of the Services, however the use of a Subcontractor does not relieve ED of its obligations and it will remain liable for any acts or omissions of any Subcontractor to the same extent as if they were the acts or omissions of ED.
5.5. Third Party Software Suppliers
- Where ED facilitates the sales of Third-Party Software to the Client, subject to the payment of any applicable Third-Party Software Licence Fees, the Third-Party Software Supplier will be expected to make the Third-Party Software available to the Client and the Client will be required to enter into the Third-Party Software Supplier’s End User Licence Agreement.
- ED accepts no responsibility for the performance of the Third-Party Software or for any consequences arising from its use by the Client.
6. Client Obligations
- The Client will perform those functions identified in a SOW as responsibilities of the Client.
- Without limiting clause 6.1 (a), the Client will
- provide ED with complete, reliable and accurate data, particulars and information, as reasonably requested by ED, in a timely manner;
- ensure that all the Client Personnel required by ED to allow it to undertake and provide the Services are available as and when reasonably required;
- promptly make any decisions and give any approvals reasonably requested by ED;
- provide or procure access for ED to Sites at times as reasonably required;
- provide ED with any necessary facilities, telecommunications and internet access, equipment and resources that ED reasonably requires at Sites;
- provide a safe work environment for ED Personnel that are visiting or working at Sites and in accordance with all applicable work health and safety laws.
- Where ED has
- relied upon statements made or information provided by the Client,
- has placed a Dependency on the Client as specified in a SOW, or
- has made an Assumption which has been confirmed in writing by the Client either directly or through it being set out in an agreed SOW,
the Client acknowledges that if that statement proves to be untrue, or the Dependency is not met or the Assumption proves to be invalid, then ED may perform an impact assessment (Impact Assessment) in respect of its ability to deliver the Services in line with the SOW and will present the implications of the Impact Assessment to the Client.
- This Impact Assessment may include proposed changes to the scope of the Services, the timetable for the delivery of the Services and the Fees. The Parties, acting reasonably, will seek to reach agreement on any change necessary to the SOW. Should the Parties be unable to reach agreement on the changes proposed by ED, then this will be dealt with through the Dispute Resolution process.
- The Client warrants that it has the authority to allow ED and its Personnel to use any facilities, equipment, resources and/or intellectual property rights in any material, software or other collateral that the Client provides to ED or its Personnel for use in connection with providing the Services.
- If the Client has an existing platform, Client shall give ED full and free access and/or the necessary license to use any System, Code Base and Infrastructure required to do its job. All access provided will be subject to Confidentiality Obligation set out in this MSA.
6.2. Agile Framework
The Parties agree to take an agile approach to the provision of the Services and Deliverables and to mutually and in good faith seek to comply with timelines and acceptance criteria that may be agreed from time to time. Acceptance test criteria will be incrementally defined together by the nominated representatives of the Parties.
6.3. Third Party Authorisations
- In order to be able to assist the Client quickly in times of need, the Client needs to ensure that ED is authorised to work with all of its external vendors that ED may require to work with to provide the Service. This includes but is not limited to the Client’s Internet Service Provider, Server Infrastructure Provider and Domain Hosting Provider. During the onboarding process, ED will engage with the Client to determine all the vendors the Client will need to give authorisation to.
- If ED is not authorised for a particular vendor, ED may, in its absolute discretion, charge the Client extra fees for any time it takes ED to obtain authorisation for it to deal with that vendor on behalf of the Client when needed.
- If the Client start working with any new vendors that ED will need to interact with after ED commences work on this MSA, the Client agrees to make sure that ED is authorised to act on the Client’s behalf on commencement of the Client’s relationship with the new vendor.
6.4. Integration with Third Party API’s
ED will not be responsible for any delays caused by a Third Party, or by the Client, while attempting to integrate with a Third Party or Client’s APIs in order to provide the Services. Any resultant delays as a result of the above, will be charged for on an hourly basis, or deducted from the Client’s budget pursuant to the SOW.
6.5. Code Base and Git Repositories
If the Client has an existing platform, and the Client is currently not a current customer thereof, the Client agrees to allow ED full and free access to any System, Code Base and Infrastructure required for it to provide its Services. If there is anything that interferes with ED’s access, ED may in its absolute discretion, charge the Client for any extra time incurred as a result.
Where the Client is not an existing client of ED and the Client executes an MSA and or SOW with ED, ED will onboard the Client as an ED Client. If the Client currently has its own software platform, this process may require a number of hours noted in the SOW to ensure that ED has the correct Keys, Code Repositories, Wiki’s and understanding of how the Client’s Platform, Website and Business operate. Following this process, the Client’s Project Manager will create a document that contains all this required information so that ED has all the details it may require to provide the Services.
7. Invoicing and Payment
7.1. Invoicing requirements
ED will provide Tax Invoices to the Client as specified in a SOW.
Unless otherwise agreed in writing the Client must pay each invoice within 14 days of the date of invoice. Time is of the essence in respect of the payment of ED invoices. Services cannot be provided until first payment is made, unless agreed by ED in writing.
7.3. Payment Method.
Payment must be made by Electronic Funds Transfer to ED’s nominated bank account or as otherwise specified in a SOW.
The Client acknowledges and agrees that the Fees and expenses may change if:
- The Client requests a change to the scope or timetable of the Services
- ED encounters an Unexpected Issue
- Any matters arise under Client Statements, Dependencies and Assumptions clauses above
- The Parties agree a change to a SOW in writing for any other reason.
- Where additional Fees apply, these will be based upon the additional work required and charged at ED Standard Rates or at such other rates agreed by the parties in writing.
- Client approved expenses will be billed at the end of each month in which they are incurred.
7.5. Late Payment
- If the Client fails to make any payment when due, in addition to any other of ED’ remedies or rights:
- ED may suspend the Services until the Client pays all outstanding amounts; and/or
- ED may charge the Client a late payment charge for any failure to make any payment by the due date calculated daily using a rate that is 8% per annum over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by ED, both dates inclusive.
- The Client agrees to reimburse ED for all expenses and costs (including but not limited to legal costs and debt recovery costs) incurred by ED, or for which ED is liable, as a result of any actions ED may take in order to recover any and all overdue amounts payable under a SOW.
7.6. No Set off
The Client must pay ED all amounts due in connection with this MSA without set off or deduction. All amounts paid to ED are non-refundable.
7.7. Disputed invoices
- If the Client, acting in good faith, disputes the validity of any invoice:
- it must promptly notify ED in writing of the reasons for disputing the invoice. Failure give written notice within ten (10) Business Days from receipt of the disputed invoice shall render that invoice final and correct;
- it must pay the portion of the amount stated in the invoice that is not in dispute and
- the parties must continue to perform their other obligations under this MSA, and any relevant SOW and ED will not suspend, cancel or withdraw the provision of the Services in whole or part as a result of such dispute.
- Either Party may invoke the dispute resolution procedure set out in clause 17 in relation to any disputed invoice.
7.8. Goods and services tax
- Unless otherwise specified in a SOW, all amounts payable for the Services are exclusive of GST.
- If any part of the Services is a taxable supply within the meaning of the GST Act, the Client will pay ED an additional amount equivalent to the GST for that taxable supply at the same time as paying the consideration for that taxable supply but subject to receiving a valid tax invoice, within the meaning of the GST Act, from ED.
- If this MSA and/or a SOW requires one Party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other Party, the amount required to be paid, reimbursed or contributed by the first Party will be reduced by the amount of any input tax credits to which the other Party is entitled in respect of the reimbursable expense.
7.9. Additional Items
ED may be required to purchase certain licences, keys, and/or other resources in order to complete the provision of the Services. In this regard, ED will first notify the Client of the need for the purchase and will require authorisation prior to any purchase being made. The Client must pay for any purchases, however, in the event that it is not possible, ED will add the cost of the purchase to the following invoice to the client.
8. Change Management Process
8.1. No Changes without a Change RequestNeither Party may make any material additions, modifications, deletions or changes to any part of the Services (a Change) without following the Change Request procedure in this clause.
8.2. Change Request Process
- A Party may, at any time during the Term of a SOW, propose a Change to the relevant Services by submitting a Change Request in writing (which may include email) to the other Party.
- Each Change Request may contain, amongst other things:
- a detailed description of the proposed Change including the name of the Party requesting the Change;
- the reasons why the Change is being requested and the desired result from the Change;
- an assessment of the expected impact of the proposed Change on the Services including any milestone dates for the completion of the Services listed in a relevant SOW;
- an estimate of all resources necessary to effect the Change;
- the level of urgency and any desired date by which the proposed Change should be made;
- if ED is issuing the Change Request, an estimate of the additional costs (if any) to the Client, of introducing the Change; and
- any other information which is likely to or can reasonably be expected to be of material assistance to the other Party in deciding whether to accept the Change Request.
8.3. Response to a Change Request
- The Party receiving a Change Request must review it as soon as practicable and notify the other Party in writing if it is able to accept the proposed Change. It will also notify the other Party in writing if it:
- wishes to make changes to the Change Request and the relevant proposed changes in which case the other Party will review and either accept the updated Change Request or the parties will conduct to attempt in good faith to reach agreement on the updated Change Request;
- requires more time or information from the requesting Party in order to review the Change Request in which case the receiving Party must provide that additional information and grant the requesting Party a reasonable amount of additional time to review the Change Request and provide a response; or
- rejects the Change Request, in which case the requesting Party may, if it reasonably believes the receiving Party’s rejection of the Change Request is unreasonable, activate the dispute resolution process as specified in this MSA.
- Any written or recorded communication agreed Change request will constitute an amendment to the relevant SOW.
9. Intellectual Property Rights
9.1. Rights in ED’s Independent Works
Unless otherwise specified in a SOW, ED and/or its Affiliates will retain all rights, title and interests (including Intellectual Property Rights) in any of their Independent Works (ED’s Independent Works) used in or for the purposes of the Services.
9.2. Use of the Client Independent Works
- The Client will retain all rights, title and interests (including Intellectual Property Rights) in any of its Independent Works supplied to ED for the purposes of the Services and/or for use in providing the Services (The Client Independent Works).
- If the Client provides ED with the Client Independent Works, the Client grants or will procure for ED (and any relevant Subcontractor) a non-exclusive, royalty free licence to use, reproduce and modify the Client Independent Works during the Term of the relevant SOW solely to the extent necessary to enable ED and/or Subcontractors to provide the Services in accordance with this MSA and the relevant SOW.
- ED will not (and must ensure that its Personnel do not) use the Client Independent Works for its own benefit or the benefit of any other party other than the Client and/or the Client Affiliates, without the prior written consent of the Client which consent may be withheld in the Client’s sole discretion.
9.3. Rights in Project Works
- Subject to clause 9.2, all right, title and interests (including Intellectual Property Rights) in any Project Works will be assigned, upon receipt of payment in full by ED, to the Client unless a SOW provides otherwise. ED will, and must procure that its Personnel, do all things and sign all documents that may be necessary to give effect to any assignments in accordance with this clause 9.3.
- If a SOW provides that ED or a third-party retains ownership of any right, title or interest (including Intellectual Property Rights) in any part of the Project Works, ED grants and/or must procure for the Client a perpetual, worldwide, non-exclusive, irrevocable, royalty free licence to use, modify, sub-licence, communicate and adapt the Project Works for any purpose.
9.4. Moral Rights
- If any part of ED Independent Works or Project Works assigned to the Client by ED is a copyright work in which Moral Rights subsist, ED will, to the full extent permitted by Law, procure unconditional and irrevocable consents and waivers from the relevant individuals who are authors or creators of such works (Creators) to enable the Client and/or the Client Affiliates to do any act or omit to do anything that would otherwise infringe the Moral Rights of the Creators.
- ED will provide original copies of all such consents and waivers to the Client upon request.
9.5. Defence of any third-party Claims
If someone makes a Claim against either the Client or ED (the “Recipient”), that any information, design, specification, instruction, data, or material including the Project Works and any ED’s Independent Works (hereinafter referred to as “Material”) furnished by either the Client or ED (the “Provider”), and used by the Recipient infringes its intellectual property rights, the Provider will indemnify the Recipient against the Claim if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the Claim (or sooner if required by applicable law);
- gives the Provider sole control of the defence and any settlement negotiations; and
- gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the Claim.
If the Provider believes or it is determined that any of the Material may have violated someone else’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid for it. If the Client is the Provider and such return materially affects ED’s ability to meet its obligations under the relevant SOW, then ED may, at its option and upon 30 days prior written notice, terminate the said SOW. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the purpose for which it was intended or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, data, or material not furnished by the Provider. ED will not indemnify the Client to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by ED. This section provides the Parties’ exclusive remedy for any infringement claims or Damages.
10.1. General obligations
- Each Party must maintain the confidentiality of the Confidential Information of the other Party (Disclosing Party) disclosed to or learnt by it (Recipient) as a result of or in relation to this MSA and any SOW (including negotiations prior to the signing of this MSA or any SOW) and may only use that Confidential Information for the purposes of fulfilling its obligations under this MSA and any SOW (Purpose).
- Each Recipient may disclose the Confidential Information of the Disclosing Party only with the prior written consent of the Disclosing Party or as set out in clauses 10.2 and 10.3.
10.2. Disclosures for the Purpose
A Recipient may disclose the Confidential Information of the Disclosing Party to:
- its Personnel who have a need to know that Confidential Information and who are either bound by obligations of confidentiality to the Recipient that are equivalent to those under this MSA and any SOW; or
- have entered into a confidentiality agreement or given an undertaking to the Recipient to respect that Confidential Information on substantially the same terms as those under this MSA;
- in the case of the Client, to any of the Client Affiliates who have a need to know the Confidential Information; and
- its legal and other professional advisers for the purpose of advising on, or in relation to, this MSA and any relevant SOW.
10.3. Disclosures required by Law
If a Recipient is required by law to disclose the Confidential Information of the Disclosing Party, the Recipient must, before such disclosure, notify the Disclosing Party of the details of the proposed disclosure and:
- give the Disclosing Party a reasonable opportunity to take any further steps that it considers necessary to protect the confidentiality of its Confidential Information;
- give any assistance reasonably required by the Disclosing Party to arrange for the disclosure of that Confidential Information in a manner that safeguards the confidentiality of that Confidential Information; and
- inform the intended recipient that the Confidential Information is the confidential information of the Disclosing Party.
10.4. Breach of confidentiality undertakings
The Recipient must:
- immediately take steps to prevent or stop any suspected or actual breach of the confidentiality of the Disclosing Party’s Confidential Information in its possession or control or the possession or control of its Affiliates;
- comply with the Disclosing Party’s reasonable directions regarding any suspected or actual breach of any confidentiality obligations in relation to the Disclosing Party’s Confidential Information;
- immediately give the Disclosing Party’s notice of any suspected or actual unauthorised access, use, copying or disclosure of the Disclosing Party’s Confidential Information; and
- give any assistance reasonably requested by the Disclosing Party’s in relation to any proceedings it may take against any person for the unauthorised access, use, copying or disclosure of the Disclosing Party’s Confidential Information.
10.5. Interlocutory relief
The Recipient acknowledges and agrees that:
- any breach of the confidentiality undertakings in this MSA or by any other parties of the confidentiality undertakings referred to in clause 10.2 may cause irreparable harm to the Disclosing Party;
- monetary damages alone may not be adequate compensation to the Disclosing Party for such breaches;
and that in addition to any other rights and remedies it may have, the Disclosing Party may seek immediate injunctive or equitable relief from a court of competent jurisdiction.
10.6. Return of Confidential Information
On the termination of this MSA or the relevant SOW, or if the Disclosing Party requests, the Recipient must immediately take the following steps (at the Disclosing Party’s option) in respect of any Confidential Information of the Disclosing Party in the Recipient or the Recipient’s Affiliates’ possession or control:
- return that Confidential Information to the Disclosing Party; or
- destroy or delete, and certify to the Disclosing Party, the destruction or deletion of that Confidential Information.
11. Data Privacy and Security
11.1. Ownership of the Client DataClient Data is and will remain the property of the Client and/or the relevant Client Affiliates or other third parties who authorise the Client to access, collect, use and disclose the Client Data. Nothing in this MSA or a SOW will be read as assigning or transferring any rights in the Client Data to ED or its Affiliates.
11.2. Compliance with privacy laws
- ED may collect Personal Information about the Client, its representatives, its clients and others when it provides Services pursuant to this MSA. Each Party agrees to work co-operatively to ensure that each Party meets the obligations that each may have under the Privacy Act 1988 (Cth) (as amended) (Privacy Act).
- ED will (and must ensure that the ED’s Affiliates) comply with:
- any applicable privacy or data protection Laws (in any jurisdiction where the Services are provided) that apply to its collection, use, disclosure and handling of the Client Data including, in the case of any the Client Data that is Personal Information, complying with the Privacy Act 1988 (Cth), the Australian Privacy Principles and any other applicable Privacy or Data laws; and
- any Client privacy policies that have been disclosed to ED which relate to the use, disclosure and handling of the Client Data.
11.3. Use and disclosure of the Client DataWithout limiting the generality of clause 11.2, if ED (and/or its Personnel) collects, stores, controls, processes, uses or discloses any Client Data in connection with the Services, ED will (and must ensure that ED Personnel) maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorised access to or disclosure of Client Data (other than by the Client or Users).
11.4. PurposeED will use Client Data solely for the purposes of fulfilling its obligations under this MSA and a relevant SOW (Purpose) and will not otherwise:
- collect, use or disclose the Client Data, for any other purpose;
- purport to or actually sell, assign, lease or otherwise commercially exploit the Client Data; or
- alter the Client Data in any way, other than in providing the Services as required by this MSA or a relevant SOW.
11.5. NotificationIn respect of any actual or threatened Security Breach, ED will immediately notify the Client of the Security Breach. Upon discovery of any Security Breach, it shall immediately act to:
- rectify the Security Breach;
- prevent any further Security Breach; and
- provide the Client with comprehensive information and full and prompt cooperation and assistance in relation to any notifications that you may be required to make as a result of the Security Breach.
11.6. Return of Client Data
- On termination of this MSA or the relevant SOW, ED must:
- cease its use of the Client Data; and
- if requested within 30 days of the termination or expiration of this MSA, make Client Data available to the Client to export or download as provided in the Documentation; or
- destroy or purge all the Client Data from any computer system and storage media on which such the Client Data is stored.
- After such 30-day period, ED will have no obligation to maintain or provide any Client Data, and as provided in the Documentation, will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited.
12.1. General warrantiesEach Party warrants and represents that:
- it has and will have the requisite corporate power and authority to enter into this MSA and any SOW and to carry out the obligations contemplated by this MSA;
- its signing, delivery and performance of this MSA and any SOW does not and will not constitute:
- a breach of any judgment, order or decree;
- a material default under any contract by which it or any of its assets are bound; or
- an event that would, with notice or the passing of time, or both, constitute such a default.
12.2. Intellectual Property Rights warrantiesED represents and warrants that:
- the provision of the Services, and the Client and/or the Client Affiliates use of the Services (including the Project Works and any ED’s Independent Works (ED’s Deliverables)) will not infringe the Intellectual Property Rights (including Moral Rights) of any third party;
- it has the right to provide the assignment, or as the case may be, grant the licences for any of ED’s Deliverables;
- if it supplies Services (including ED’s Deliverables) that have been procured from a third party, it will procure and assign to the Client (to the extent permitted) the benefit of any third-party warranties in respect of those Services and/or ED’s Deliverables; and
- where this MSA or a relevant SOW states that ED will assign to the Client any right, title and interests (including Intellectual Property Rights) in any ED’s Deliverables, it has or will procure (in a timely manner) all rights necessary to convey such rights in full to the Client.
13. Limitation of Liability
13.1. Statutory Warranties
- Nothing in this MSA excludes the Client’s statutory rights. If a statutory guarantee under the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applies to any goods or services supplied by ED and ED fails to comply with that statutory guarantee, to the extent permitted by law ED’s liability is limited to one or more of the following, at ED’s option:
in relation to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired.
in relation to services:
- supplying the services again; or
- payment of the cost of having the services supplied again.
13.2. Liability cap
- Where Australian Consumer Law does not apply, to the extent permitted by law in contract, tort (including negligence), breach of statutory duty or otherwise, the liability of ED is limited to the re-supply of the goods and/or services or the cost of re-supply of the goods or services under the relevant SOW (excluding expenses).
- Notwithstanding any other provision in this Agreement the total maximum aggregate liability of ED shall not exceed the lower of (i) the limit of ED’s insurance and (ii) the Fees paid by the Client (excluding expenses) for the Services under the SOW applicable to the claim giving rise to the liability.
13.3. No liability for Consequential Loss
To the extent permitted by Law, neither Party will be liable to the other Party for Consequential Loss.
13.4. Liability reduced by other Party’s fault
Each Party’s liability to pay Damages to the other Party is reduced to the extent that the relevant liability was caused by or contributed to by the other Party or its Affiliates.
14. Force Majeure Events
If a Force Majeure Event affects either Party, the affected Party must immediately inform the other Party of the circumstances and may request the other Party’s approval to extend time for the performance of the affected Party’s obligations under this MSA by a period of up to the same duration as the Force Majeure Event.
14.2. No Liability
Neither Party will be liable to the other for any delays or non-performance of contractual obligations under this MSA (or a purchase order) caused by a Force Majeure Event, provided the affected Party has taken all reasonable steps to minimise any loss, damage or delay resulting from the Force Majeure Event.
Each Party must take reasonable steps to minimise its losses in the event of the occurrence of a Force Majeure Event.
15.1. Delay due to the Client
Unless otherwise specified in the applicable SOW, any unreasonable delays due to the actions (or inactions) of the Client will incur a penalty of 1 hour of ED’s time per day of delay, for the duration of the delay. The daily penalty rate will be at the level defined in the Service Levels specified in the applicable SOW.
Any direction to “stop work” at any time during the development cycle or during the execution of an MSA will be subject to the daily penalty rate until such time as the work is resumed.
15.2. Reasons for Delay
The reasons for the delay include, but are not limited to:
- the Client failing to provide the necessary information;
- the Client failing to timely reply to communications;
- the Client failing to facilitate contact with Third Party Software Suppliers for any necessary information;
- the Client halting work without sufficient notice and reason;
- the Client failing to pay an invoice on, or before the due date.
16. InsuranceED will obtain and maintain the following insurances:
- Professional Indemnity Insurance for $1 million in any one Claim and $2 million in the aggregate;
- Public Liability Insurance for $10 million in any one occurrence and $10 million in the aggregate
- Workers compensation insurance as required by Law.
17. Dispute Resolution
17.1. No court proceedings unless procedure followed
A Party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause.
17.2. Notice of Dispute
A Party claiming that a dispute, difference or question arising out of the Services, this MSA or a SOW has arisen, including a question as to whether certain Services are in scope or not (Dispute) must give the other Party written notice of the details of the Dispute (Dispute Notice).
17.3. Escalation procedure
The Parties must attempt to resolve any Dispute by negotiation using the following escalation procedure:
- upon receiving a Dispute Notice, the Parties’ Lead Representatives must first attempt to resolve the Dispute within 5 Business Days; and
- if the Lead Representatives cannot resolve the Dispute within 5 Business Days of the Dispute Notice being given, they must refer the Dispute to their respective Chief Executive Officers (or their respective nominees) who must use their best efforts to resolve all issues escalated to them, in a way that attempts to preserve the relationship between the Parties, within 5 Business Days of the Dispute being referred to them.
17.4. Failure to resolve
If the dispute is not resolved in accordance with clause 17.3, a mediator will be selected by agreement of the Parties or failing agreement on the identity of the mediator within seven (7) days, by the Australian Disputes Centre (ADC) under its “Guidelines for Commercial Mediation” on the request of either Party. The Parties will then use their reasonable efforts to resolve the dispute by mediation under ADC’s “Guidelines for Commercial Mediation”.
17.5. Obligations continue
The Client and ED will continue to perform their respective obligations under this MSA and/or SOW pending the resolution of a Dispute.
Each Party must bear its own costs of complying with the dispute resolution obligations under this clause.
18.1. Termination for cause
- ED may, by written notice to the Client, immediately terminate or suspend performing its obligations under this MSA or a SOW if:
- The Client has not paid an amount due determined by ED to be material by the due date;
- The Client commits any other breach of the terms of this MSA or a SOW and has failed to remedy such breach within 14 days of receipt of written notice requiring it to do so.
- The Client may, by written notice, to ED terminate this MSA or a SOW if ED commits any material breach of the terms of this MSA or a SOW and has failed to remedy such breach within 14 days of receipt of a written notice requiring it to do so.
- On termination of a this MSA or a SOW, for any reason, the Client remains liable for all Fees and any expenses incurred to the date of termination
18.2. Termination due to an Insolvency related eventEither Party may terminate this MSA by notice in writing to the other Party if the other Party suffers an Insolvency Related Event.
18.3. Termination on noticeEither Party may terminate this MSA or a SOW on the giving of 30 days’ notice in writing.
18.4. Effects of termination of this MSA or SOW
- On termination of this MSA or a SOW:
- ED will stop providing the Services and the Client will pay ED any Fees due and unpaid for Services that were provided before the termination date;
- Should termination be caused by Client, ED may invoice Client up to 50% of the remaining budget after Client pays all outstanding fees for work done to the date of termination.
- ED will refund (on a pro rata basis) any Fees paid by the Client for Services that were not provided or only partially provided by ED as at the termination date;
- Except as otherwise set out in this MSA, termination of this MSA, in its entirety or as it relates to one or more discrete parts of the Services will not affect any accrued rights of either Party.
- Where the Client seeks to terminate this MSA or a SOW pursuant to clause 18.3, the Client agrees that, where work has been performed by ED on a Deliverable or Service that has not yet resulted in a Deliverable or has otherwise not been subject to a particular Fees, the Client must pay a Tax Invoice raised by ED in respect of any effort involved in the delivery of Services or on a Deliverable that has not been subject to a particular Fees.
- ED will determine the level of these particular Fees based upon the volume or time and seniority of resources that have worked on the relevant Service or Deliverable and charge that time at the relevant ED Standard Rates. The level of time that forms the basis of the charge will include any time of those resources that cannot be redirected to other clients of ED in the short term, accepting that ED accepts a duty to seek to minimise any such unproductive time.
- The Client acknowledges that in order to provide the Services, ED has committed resources and may have declined work for other clients and therefore the Client agrees that unless it is otherwise expressly agreed in a SOW, the Client may not terminate a SOW for convenience unless the Client pays the Fees charged by ED under the above provisions or such other reasonable amount as ED specifies to in writing at its sole discretion.
18.5. Termination of a SOW
- Where the Client has a right to terminate this MSA, the Client may in its sole discretion elect to terminate a SOW or the whole or part of the Services instead of terminating this MSA. Unless a SOW is specifically terminated it shall continue to apply unless terminated or expired.
- In the case of termination on notice, termination of a SOW or the whole or part of the Services will be upon payment of any termination fee specified in the SOW or in relation to those Services.
- Termination of a SOW by the Parties does not and will not amount to a termination of this MSA unless the Client also terminates the MSA.
19.1. Relationship between the Parties
The relationship between the Parties is one of independent contractors and nothing in this MSA or a SOW is intended to create, or is evidence of, a relationship of employment, partnership, agency or joint venturers between the Parties.
19.2. Variation to this MSA
This MSA (including the SOW and any Schedules) must not be varied, except through written agreement signed by the authorised representatives of each Party.
Each Party must pay its own costs relating to the preparation, negotiation and entry into this MSA and each SOW.
- Any notices to be given under this MSA must be in writing and signed for and on behalf of the Party giving such notice
- A notice under this MSA is only effective if it is given as follows
- by hand; or
- by prepaid mail; or
- by email.
to the address of the Party specified on page 1 of this MSA or otherwise specified in writing in accordance with this clause.
- A notice sent for the purposes of this clause will be considered received:
- if delivered by hand, before 5.00 pm, on that Business Day;
- if sent by pre-paid mail, on the third Business Day after posting; or
- if emailed, it at the time of sending unless the sender’s email system receives a delivery failure notification.
- A notice sent for the purposes of this clause will be considered received:
except that a delivery by hand, mail or email received after 5:00pm (local time of the receiving Party) will be deemed to be given on the next Business Day.
19.5. Assignment and novation
Subject to the use of approved Subcontractors, ED will not assign, novate or transfer (or purport to assign, novate or transfer) this MSA, any relevant SOW and/or any of its rights or obligations under this MSA and/or a relevant SOW without the prior written consent of the Client, such consent not to be unreasonably withheld.
Those provisions of this MSA that by their nature are intended to survive termination or expiry of this MSA and/or a SOW, including clauses13.0, 19.10, 19.11, 19.13 and 19.14 will remain in full force and effect following termination or expiry of this MSA and/or a relevant SOW.
19.7. Non solicitation
Unless the other Party otherwise agrees in writing, a Party, its Related Bodies Corporate, contractors or agents must not, at any time during the Term of this MSA and for 6 months following the termination of this MSA or a SOW, directly or indirectly, employ, solicit, or assist other persons to employ or solicit the employment or services of any employee or contractor of the other Party which person was directly or indirectly involved in the provision or receipt of Services.
Each Party must comply with the Privacy Act 1988 (Cth) in handling personal information.
19.9. Governing Law
This MSA and each SOW is governed by the Law in force in New South Wales, Australia and the Parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
19.10. Further action
Each Party must (at its own cost) do anything reasonably necessary (including executing any document) to give full effect to this MSA and any SOW and must ensure that its officers, employees, agents, contractors and attorneys do all things (including executing any document), that the other Party may reasonably require to give full effect to this MSA and any SOW.
Any provision of this MSA and/or a SOW which is prohibited or unenforceable in any jurisdiction may be read down or severed from this MSA and/or a SOW in that jurisdiction only without invalidating the remaining provisions in that jurisdiction or affecting the validity or enforceability of this MSA and/or a SOW in any other jurisdiction.
No failure or delay in exercising any right, power or remedy by a Party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
19.13. Entire agreement
This MSA (including any relevant SOW) contains the entire agreement between the Parties in relation to its subject matter and supersedes any prior understandings, arrangements or agreement between the Parties in relation to that subject matter.
19.14. Cumulative remedies
Except where this MSA and/or a SOW provides otherwise, the rights, powers and remedies provided to the Parties in this MSA and/or a SOW are in addition to, and do not exclude or limit, any right, power or remedy provided by Law or equity or by any agreement between the Parties.
- This MSA and SOW may be executed in any number of counterparts and by the Parties on separate counterparts, but shall not be effective until each Party has executed at least one counterpart; and
- This MSA and SOW may be exchanged by exchanging pdf copies of this MSA and SOW duly signed by the Parties by email or other electronic means.
- The use of an Electronic Signatures and the keeping of records in electronic form will have the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law.
19.16. Order of precedence
The order of precedence of documents, for the purposes of construction and resolving any inconsistency between documents is listed below in order of highest to lowest priority with a document of higher priority prevailing, to the extent of any inconsistency, over a document of lower priority:
- all applicable Laws;
- a SOW including any document incorporated by reference or attached to a SOW;
- the terms of this MSA including the Schedules and any other documents attached to or incorporated by reference to this MSA; and
- any other documents incorporated by reference.
19.17. Obligation to Act in Good Faith
The Parties agree to be open, honest, cooperative and responsive with each other, act in good faith, respecting each other’s roles and responsibilities, and must assist the other Party to facilitate the Services provided in this MSA or the applicable SOW. The Parties further agree to advise the other Party if it becomes aware of any circumstance that might affect the carrying out of those activities or the viability of the applicable SOW. The Parties must attempt to resolve any dispute concerning this MSA or the applicable SOW by negotiations at an operational level.
ANNEXURE A Dictionary
1. Definitions and interpretation
Affiliate means a Party’s Personnel, its Related Bodies Corporate and the Personnel of its Related Bodies Corporate.
Acceptance Criteria means the criteria that will be used in establishing whether or not a Deliverable is in line with the Client’s requirements:
- In respect of written Deliverables this will be defined in the Report Specification; and
- In respect of Software Solutions, this will the user acceptance criteria established and confirmed within the User Requirements.
Acceptance Testing means the steps to be taken by the Client to review Deliverables to assess whether or not they meet the Acceptance Criteria. This will occur both when the Deliverable is first presented for review – the Initial Review for a Report and the Initial Acceptance Testing for Software Solutions – and when the Deliverable is presented for final acceptance – the Final Review for a Report and the Final Acceptance testing for Software Solutions.
Acceptance Testing Period means the period of time from the point at which Deliverables are presented for Acceptance Testing during which the Client will carry out Acceptance Testing and notify ED in writing of any Acceptance Testing Issues.
ED Standard Rates means the set of standard charge out rates published by ED from time to time.
Assumption means an assumption defined within a SOW and upon which ED has relied which, if later found to be incorrect, may impact upon the delivery of Services and the Fees.
Business Day means a weekday that is not a public holiday in Sydney Australia.
Change Request means a written request to add to, vary or modify the Services in accordance with the process described in clause 8.2.
Claim means a claim, demand or proceeding arising out of a cause of action in connection with this MSA or any relevant SOW including, breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Client Data means:
- all data and information (regardless of format) including any Confidential Information and/or any Personal Information relating to the Client; and
- any derivative works produced from the data and information referred to in paragraph (a) above.
Commencement Date means the date on which this MSA commences as set out in clause 3.
Confidential Information means any information of a Party or its Affiliates (regardless of format) that:
- is designated by that Party as confidential;
- is by its nature confidential; or
- which the other Party (Recipient) knows or reasonably ought to know is confidential;
- includes information:
- relating to the internal management of a Party or its Affiliates,
- policies, business strategies, products, operations, processes, plans, intentions, product information, trade secrets, market opportunities and business affairs of a Party
- a Party’s pricing, methodologies, know-how, trade secrets, advice, report templates, documents, analytical frameworks, designs, works in which copyright subsists, patents, inventions and any other intellectual property rights used for, or created by ED as a result of, the Services
but excludes any information that:
- is already in, or becomes a part of, the public domain other than through a breach by the Recipient or its Affiliates of any obligations of confidentiality in relation to that information;
- can be shown, by contemporaneous records, to have been lawfully known by the Recipient prior to disclosure to it by the other Party;
- the Recipient can prove was independently developed by the Recipient or an Affiliate of the Recipient without access to or use of the other Party’s Confidential Information, or
- was lawfully provided to the Recipient or its Affiliates by a third party who was not under an obligation of confidentiality in relation to that information.
Consequential Loss means any loss (including Damages) that does not arise naturally (that is according to the usual course of things) as a result of or in relation to a breach of this MSA and/or a SOW and includes, without limitation; loss of profits or revenue, pure economic loss, loss of opportunity, goodwill or reputation, loss or corruption of data, loss of use or value of equipment, loss of anticipated profits, savings or business and any costs or expenses in connection with the foregoing.
Customized Services as set out in Schedule 3 of this MSA.
Damages means all liabilities, losses, damages, costs and expenses (including legal costs on a full indemnity basis) whether incurred or awarded against a Party and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties, regardless of the Claim under which they arise.
Defects means any matters identified where a Deliverable does not meet the Acceptance Criteria identified during Final Review or Final Acceptance Testing.
Deliverable(s) means an output from ED’s work in the form of a Report or Software Solution as set out in a SOW.
Dependency means an action that the Client has agreed to and must perform in order for ED to deliver the Services in line with the SOW where any failure to deliver that action may result in a change to the Services and/or Fees.
Documentation means any technical, user or operating manuals or other written documentation (regardless of format) that provides instructions in relation to the use of any Hardware, software or any other Works.
Fees means the remuneration and any other charges payable by the Client for the Services as specified in a SOW.
Final Acceptance Period means the period of time by which Final Review or Final Acceptance Testing of Deliverables must be completed and any Defects notified by the Client to ED.
Force Majeure Event means any act, event or occurrence that’s beyond the reasonable control of a Party including fire, flood, earthquake, elements of nature or acts of God, riot, declared pandemics, civil disorder, rebellion, strikes or revolution but in each case only if and to the extent that the Party claiming such act, event or occurrence (and that Party’s Affiliates) are without fault in causing such act, event or occurrence or its effects could not have been prevented by reasonable precautions including:
- invoking any relevant disaster recovery plan or business continuity plan (including for the continued availability of telecommunications networks or power);
- appropriate workload management practices; or
- any other prudent back-up or recovery procedures.
GST means the goods and services tax as defined in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act.
Hardware means any computer hardware, telecommunications equipment, firmware and any related equipment, accessories, peripherals and tools specified in a SOW.
Hosting Services as set out in Schedule 1 of this MSA.
Initial Acceptance Period means the period of time by which Initial Review or Initial Acceptance Testing must be completed and any Acceptance Testing Issues notified by the Client to ED.
Independent Works means Works that were developed before the Commencement Date, independently of the relationship between the parties or their Affiliates and/or the scope of this MSA.
Intellectual Property Rights or IPR means all intellectual property rights at any time recognised by Law, including patents, copyright, circuit layout rights, registered designs, trademarks, business names and any application or right to apply for registration of any of the rights referred to above.
Insolvency Related Event means any of the following:
- if a resolution is passed for the winding up of a Party (other than for the purposes of reconstruction or amalgamation on terms which have been previously approved in writing by the other Party);
- if a receiver, receiver and manager, voluntary administrator or an administrator of a deed of company arrangement, is appointed to, or a mortgagee takes possession of, all or any part of the business or assets of a Party;
- if a Party makes any composition or arrangement or assignment with or for the benefit of its creditors;
- if a Party or any creditor appoints a voluntary administrator, or a resolution is passed for that Party to execute a deed of company arrangement;
- if a Party ceases, or threatens to cease to carry on its business;
- if a Party becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth); or
- if a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement is appointed to all or any part of the property of a Party.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction (whether in Australia or overseas) and includes the common law and equity and any applicable industry codes of conduct.
Maintenance Services as set out in Schedule 1 of this MSA.
Moral Rights means the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, which rights are created by the Copyright Act 1968 (Cth), and if the works are used in any jurisdiction other than Australia, any similar right capable of protection under the laws of that jurisdiction.
MSA means this Master Services MSA, the Schedules and any other documentation incorporated in or forming part of this Master Services Agreement including any SOW made under it.
Personal Information has the same meaning as in the Privacy Act 1988 (Cth).
Personnel means a Party’s officers, employees, agents, contractors, consultants and professional advisors; and in the case of the Service Provider, includes the Subcontractors.
Project Services means the services that relate to a SOW that relate to the delivery of projects. that may include the design, development and implementation of Software Solutions, related change management and implementation support activities or other project-based activities as requested by the Client from time to time.
Project Works means any Works that are supplied or required to be developed, created or supplied by ED specifically as a result of, for the purposes of or in connection with the Services.
Rectification Period means the period available for the modification by ED of Deliverables, if required, following Initial Review or Initial Acceptance Testing, where Acceptance Testing Issues have been notified by the Client to ED, after which the Deliverables are to be presented for Final Review or Final Acceptance Testing.
Report means a written document presented as a Deliverable in hard copy or digital format.
Report Specification means the specification for a Report as set out in a SOW to include the related Acceptance Criteria.
Related Bodies Corporate has the meaning in section 50 of the Corporations Act 2001 (Cth).
Schedule means a schedule to this MSA.
Software Solutions Settings and modifications in respect of Third-Party Software as configured by ED along with any specific software coding developed by ED presented in digital form.
Services means all the services to be provided by ED as specified in a SOW including the procurement, development, creation or supply of any Project Works.
Service Levels means the agreed quantitative and/or qualitative performance standards for the Services, Independent Works or Project Works as specified in a SOW.
SOW or Statement of Work means a separate contract to be executed by the parties referencing this MSA, wherein the specific details of a particular Service ordered by the Client are contained.
Specifications means any functional, technical or performance specifications or other requirements in respect of the performance, output, function and operation of any Independent Works, Project Works and Services as specified in a SOW or otherwise agreed by the parties from time to time.
Subcontractor means an entity or person, including a Related Body Corporate of the Service Provider, that is contracted by ED to provide all or part of the Services in accordance with this MSA.
Support Services as set out in Schedule 2 of this MSA.
Term means the term of this MSA as set out in clause 3.
Third Party Software means the Software proprietary to organisations who are not a Party to a SOW.
Third Party Software Licence Fees means the amounts due to a Third-Party Software Provider under a Third-Party Software Supplier End User Agreement whether paid to the Third-Party Software Supplier or to ED as reseller for the Third-Party Software.
Third Party Software Supplier means an organisation that owns and makes available Third-Party Software.
Third Party Software Supplier End User Agreement means the form of agreement under which a Third-Party Software Supplier makes their software available to their customers.
Unexpected Issues An issue encountered by ED during the delivery of Services that could not have been reasonably anticipated at the time that the SOW was signed.
User Requirements The set of user stories and other requirements specified and agreed in respect of Software Solutions including the Acceptance Criteria
Works means any materials, products or other things including any Hardware, software, Documentation, Specifications, manuals, training materials, notes, plans, reports, programs, strategies, documented methodology or processes, designs, drawings, prototypes, models, templates, technical architecture, technical information, work and process flows, test results and any other documents, works or creations in any format.
1.2. Rules for interpreting this MSA
In this MSA:
- clause headings are for convenience only and do not affect the interpretation of this MSA;
- words importing the singular include the plural and vice versa;
- if a word or phrase is defined, its other grammatical forms have corresponding meanings;
- a reference to:
- a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
- a Party includes a reference to the Party’s executors, administrators, successors and assigns.
END General Terms and Conditions