This Master Services Agreement (“Agreement”) is entered into between Supplier and Customer.
The Effective Date of this Agreement shall be the date on which Customer first accesses, logs into, activates, or otherwise begins using the App supplied by Supplier.
Supplier and Customer may each be referred to individually as a “Party” and together as the “Parties”.
1. DEFINITIONS
For the purposes of this Agreement:
“App” means the software application, platform, mobile application, web application, or related services supplied by Supplier to Customer under this Agreement.
“Services” means implementation, configuration, support, maintenance, consulting, training, hosting, or other professional services provided by Supplier.
“Deliverables” means any work product, documentation, reports, configurations, or materials produced by Supplier.
“Fees” means the charges payable by Customer for the App and Services.
“Confidential Information” means any non-public information disclosed by one Party to the other, whether orally or in writing, including business information, pricing, customer information, technical data, trade secrets, and software.
“Term” means the duration of this Agreement as set out in Section 12.
2. SERVICES
2.1 Supplier agrees to provide the App and Services to Customer in accordance with this Agreement and any applicable Statement of Work (“SOW”), proposal, quote, or order form executed by the Parties.
2.2 Supplier may update, enhance, modify, or improve the App from time to time provided such changes do not materially reduce the core functionality of the App.
2.3 Customer acknowledges that Supplier may engage subcontractors or third-party providers in connection with the delivery of the Services.
2.4 Supplier will use reasonable skill and care in providing the Services.
3. CUSTOMER RESPONSIBILITIES
3.1 Customer agrees to:
a) provide Supplier with all information, access, personnel, and assistance reasonably required for Supplier to provide the Services;
b) ensure that all Customer data supplied to Supplier is accurate and lawful;
c) comply with all applicable laws and regulations relating to its use of the App; and
d) ensure that its users maintain appropriate security and password protection measures.
3.2 Customer is responsible for all activity undertaken using Customer’s user accounts or login credentials.
3.3 Customer must not:
a) reverse engineer, decompile, copy, modify, or create derivative works from the App;
b) use the App for any unlawful purpose;
c) interfere with the operation or security of the App; or
d) resell, sublicense, or commercially exploit the App without Supplier’s prior written consent.
4. FEES AND PAYMENT
4.1 Customer agrees to pay the Fees specified in the applicable SOW, proposal, quote, or invoice.
4.2 Unless otherwise agreed in writing:
a) all invoices are payable within fourteen (14) days of the invoice date;
b) all Fees are exclusive of taxes, duties, or governmental charges; and
c) late payments may incur interest at the rate of 1.5% per month calculated daily.
4.3 Supplier may suspend access to the App or Services if payment remains outstanding for more than thirty (30) days after written notice to Customer.
4.4 Except where expressly stated otherwise, all Fees paid are non-refundable.
5. INTELLECTUAL PROPERTY
5.1 Supplier retains all right, title, and interest in and to:
a) the App;
b) all software, methodologies, templates, know-how, and technology used in providing the Services; and
c) any modifications, improvements, or derivative works related thereto.
5.2 Customer receives a non-exclusive, non-transferable, revocable licence to use the App during the Term solely for its internal business purposes.
5.3 Customer retains ownership of all Customer data uploaded or stored within the App.
5.4 Customer grants Supplier a limited licence to use Customer data solely for the purpose of providing the Services and supporting the App.
6. CONFIDENTIALITY
6.1 Each Party agrees to keep confidential all Confidential Information disclosed by the other Party.
6.2 A receiving Party may only use Confidential Information for the purposes of performing its obligations under this Agreement.
6.3 Confidential Information does not include information that:
a) is publicly available other than through a breach of this Agreement;
b) was lawfully known to the receiving Party prior to disclosure; or
c) is independently developed without reference to the disclosing Party’s Confidential Information.
6.4 The obligations under this Section survive termination of this Agreement for a period of five (5) years.
7. PRIVACY AND DATA SECURITY
7.1 Supplier will implement reasonable technical and organisational measures to protect Customer data against unauthorised access, loss, misuse, or disclosure.
7.2 Customer acknowledges that no software system or internet transmission is completely secure and Supplier does not guarantee absolute security.
7.3 Each Party agrees to comply with applicable privacy and data protection laws.
7.4 Supplier may use aggregated and anonymised data for analytics, benchmarking, product improvement, and operational purposes.
8. WARRANTIES AND DISCLAIMERS
8.1 Supplier warrants that the Services will be provided with reasonable care and skill.
8.2 Except as expressly stated in this Agreement, the App and Services are provided “as is”.
8.3 Supplier does not warrant that:
a) the App will be uninterrupted or error-free;
b) the App will meet all of Customer’s requirements; or
c) all defects can or will be corrected.
8.4 To the maximum extent permitted by law, Supplier excludes all implied warranties, guarantees, or conditions.
9. LIMITATION OF LIABILITY
9.1 To the maximum extent permitted by law, Supplier’s total aggregate liability arising out of or related to this Agreement shall not exceed the total Fees paid by Customer to Supplier during the twelve (12) months preceding the event giving rise to the claim.
9.2 Neither Party shall be liable for any indirect, incidental, consequential, special, or punitive damages including loss of profits, revenue, goodwill, business opportunity, or data.
9.3 Nothing in this Agreement excludes liability for fraud, wilful misconduct, death, personal injury, or any liability that cannot be excluded by law.
10. INDEMNITY
10.1 Customer agrees to indemnify and hold harmless Supplier against any claims, losses, liabilities, damages, or expenses arising from:
a) Customer’s misuse of the App;
b) Customer’s breach of this Agreement; or
c) Customer data or materials infringing the rights of any third party.
10.2 Supplier agrees to indemnify Customer against any third-party claim alleging that the App infringes intellectual property rights, provided Customer:
a) promptly notifies Supplier of the claim;
b) gives Supplier control of the defence and settlement; and
c) reasonably cooperates with Supplier.
11. SUPPORT AND MAINTENANCE
11.1 Supplier may provide support and maintenance services as described in the applicable SOW or support schedule.
11.2 Supplier may undertake scheduled maintenance from time to time and will use reasonable efforts to minimise disruption.
11.3 Customer must promptly report any issues or defects to Supplier with sufficient detail to enable investigation.
12. TERM AND TERMINATION
12.1 This Agreement commences on the Effective Date and continues until terminated in accordance with this Agreement.
12.2 Either Party may terminate this Agreement by giving thirty (30) days’ written notice to the other Party.
12.3 Either Party may terminate this Agreement immediately if the other Party:
a) commits a material breach and fails to remedy the breach within fourteen (14) days after receiving notice;
b) becomes insolvent, enters liquidation, or ceases business operations.
12.4 Upon termination:
a) Customer must cease using the App;
b) Supplier may disable Customer’s access to the App; and
c) Customer must pay all outstanding Fees due up to the termination date.
12.5 Sections relating to confidentiality, intellectual property, liability, indemnity, and payment obligations survive termination.
13. FORCE MAJEURE
Neither Party shall be liable for delay or failure to perform obligations caused by events beyond reasonable control including natural disasters, acts of government, internet outages, cyber-attacks, labour disputes, or failures of third-party providers.
14. GENERAL
14.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior discussions or agreements.
14.2 Any amendment to this Agreement must be in writing and signed by both Parties.
14.3 Neither Party may assign this Agreement without the prior written consent of the other Party, except as part of a merger or sale of substantially all assets.
14.4 If any provision is held invalid or unenforceable, the remaining provisions remain in full force and effect.
14.5 Failure to enforce any right under this Agreement does not constitute a waiver.
14.6 This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia. The Parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia and any courts competent to hear appeals from those courts in respect of any dispute arising out of or in connection with this Agreement.