This Master Services Agreement (“Agreement”) is between [Perigon One Pty Ltd] (ABN 23 096 480 616) with a principal office at Unit 18/19 51 Kewdale Road, Welshpool WA, 6106 (“Service Provider”, “we”, “us”, “our”); and any organisation or individual who engages our services (“Client”, “you”, “your”).
This Agreement sets out the terms under which the Service Provider will provide the Services (as defined) to the Client.
This Agreement begins on the Effective Date and remains in effect while we continue providing Services to you, including under any statement of work or similar document, unless terminated earlier in accordance with clause 18.
Each Associated Agreement has its own term. Ending one Associated Agreement does not automatically end this Agreement or any other Associated Agreement.
2.1 Engagement Structure
This Agreement governs all Goods and Services we provide to you. The specific Service details will be detailed in an Associated Agreement. Each Associated Agreement, once signed by both Parties, is governed by this Agreement.
Unless expressly stated otherwise, this Part A applies to this Agreement and all Associated Agreements.
2.2 Ad-Hoc Services
Where Services are requested without a signed Associated Agreement, those Services are deemed ad-hoc Services provided under this Agreement.
Ad-hoc Services may be requested by written instruction, email, service ticket, telephone request, acceptance of a Quote, or other conduct indicating authorisation. Each such request constitutes an Order under this Agreement.
Ad-hoc Services are provided on a time and materials basis at our standard rates, or at the rates notified to you at the time the Services are requested, unless expressly agreed otherwise in writing.
2.3 Precedence
If there is any conflict between an Associated Agreement and this Agreement, the Associated Agreement will prevail, except for warranties, indemnities, liability limits, confidentiality, intellectual property, dispute resolution, or termination, where this Agreement takes precedence unless the Associated Agreement expressly says otherwise.
This Part applies where you purchase Goods from us and governs all related transactions, whether or not specifically referenced in an invoice, order confirmation, or delivery document. By submitting an Order, accepting delivery, or otherwise engaging us to supply Goods, you are deemed to accept these terms in full.
If you have also engaged us to install or manage the Goods as part of managed Services, these terms apply in addition to all other Parts of this Agreement.
4.1 Validity of Quotes
Quotes are valid for fourteen (14) days unless otherwise specified in the Quote or advised by us in writing. A Quote is an invitation for you to place an Order with us and does not create a binding contract upon your acceptance.
Quotes are valid for the period stated on the Quote. Expiry dates help us manage the validity of pricing and availability. Once a Quote has expired, we may cancel it without prior notice. If a Quote is cancelled or expires, you must request a new Quote.
4.2 Errors and Omissions
We make every effort to ensure pricing and Goods descriptions are accurate. If an error or omission is identified, we may rescind the Quote by giving you written notice, even after acceptance or payment. In such cases, our liability is limited to refunding any amounts you have already paid.
4.3 Cost Basis and Adjustments
Quotes are deemed to correctly reflect your original specifications and are based on costs current at the time the Quote is issued. Any subsequent changes requested by you will be charged at our then-current rates.
4.4 Special Pricing
Special offers or discounts included in a Quote cannot be combined with other promotions unless explicitly stated.
4.5 Availability and Price Fluctuations
Prices and Goods in a Quote are subject to change before confirmation to reflect market conditions beyond our control, including supply issues and fluctuations affecting non-stocked Goods. We will notify you of any such changes before or after Quote approval.
Non-stocked Goods are only confirmed once the Quote is converted into an Order.
If a Good becomes unavailable, we may offer a substitute of equal or better quality, subject to your approval. If a manufacturer makes minor changes to specifications, dimensions, or materials after your Order date but before delivery, we may supply the updated version without requiring further approval. In all cases, you will not be charged more than the originally quoted price unless you expressly agree otherwise.
4.6 Turnaround Times
Our minimum turnaround time for Quotes is twenty-four (24) hours. If you require an urgent Quote, please notify us to expedite processing.
4.7 Warranty Coverage
Quoted items are covered by the manufacturer’s warranty, limited to parts and labour for hardware on a return-to-depot basis unless stated otherwise.
4.8 Variation, Withdrawal, and Conversion of Quotes
We may vary or withdraw a Quote at any time before it is confirmed, including due to supply issues or cost changes.
A Quote becomes final as to pricing and scope once confirmed between us, but does not create a binding contract until it is converted into an Order in accordance with this Agreement. Once confirmed, prices and Goods are fixed unless you request changes and we agree in writing, in which case we may issue a revised Quote reflecting any changes to Fees or timeframes.
Upon confirmation, we will issue you with an Order Form, purchase order acknowledgement, or similar document in accordance with clause 5.1, and the Quote will convert into an Order governed by the terms of this Agreement.
5.1 Placing Orders
You may place an Order using a completed order form, an official purchase order, or through electronic approval (including email or web-based systems). Each Order must include all relevant details, including your full legal name, ABN (if applicable), address, and the relevant Quote number and date.
5.2 Approval of Orders
All Orders must be signed or otherwise duly authorised by you. Orders submitted electronically will be deemed authorised by you. By submitting an Order, you warrant that the person approving the Order is duly authorised to do so.
5.3 Reliance on Orders
We may rely on the apparent validity of any Order unless we have actual knowledge to suggest otherwise. You are responsible for ensuring the accuracy and authority of all submitted Orders, whether electronically or otherwise. If any Order is signed or approved electronically, it will be deemed duly authorised by both the sender and the person on whose behalf the Order is placed.
5.4 Acceptance of Orders
Orders become binding only upon our written acceptance of the Order, and our receipt of cleared funds in full for the Order (including any related costs such as freight or insurance).
We will not place Orders with suppliers, procure Goods, or otherwise commit to supply until payment has been received in full.
5.5 Variation Process
Where we issue a variation to an Order, you must respond as soon as possible and no later than seven (7) Business Days from the date of the variation notice. We may suspend or delay provision of the Goods and/or Services pending your approval. If you do not respond within that time, you will be deemed to have accepted the variation. If you notify us within that period that you do not accept the variation, we may cancel the Order (or the affected part of it) and refund any amounts paid in advance for the cancelled items, less any unrecoverable costs we have incurred.
5.6 Inventory and Restocking
We do not maintain stock on hand. Goods are ordered upon receipt of your confirmed Order. If you request a return or cancellation, a restocking Fee may apply. We will confirm returnability with the distributor before issuing any refund, as some items may not be eligible for return.
5.7 Freight Charges
Freight charges are additional (unless stated otherwise) and will be added to the Order. Freight costs are provided as estimates only.
5.8 Delivery Requirement
We have no obligation to deliver any Order until payment has been received in full. If we are unable to complete an Order for any reason, any payments received will be refunded to you.
5.9 Delivery Estimates
Estimated delivery times are based on supplier estimates and do not represent guaranteed delivery dates.
5.10 Cancellation of Orders
You may only cancel an Order with our written consent. You acknowledge that, among other things, we may be unable to cancel an Order once the manufacturer or supplier has dispatched the relevant Goods, and that such dispatch may occur on the same day that we place the Order with the supplier.
5.11 Compliance with Procedures
You agree to comply with our specified procedures when placing Orders and receiving Goods or Services.
6.1 Delivery Times
We will use all reasonable efforts to despatch Goods by the due date but are not liable for any non-delivery or delays where caused by circumstances beyond our reasonable control. This includes, for example, supply failures or delays by third parties such as delivery companies or manufacturers. If we are unable to deliver any Goods or Services to you for reasons beyond our reasonable control, we may cancel the Order (in whole or in part) by giving you written notice. We will refund any amount you have paid in advance for the affected Goods or Services, and we will have no further liability in connection with such cancellation.
Delivery is deemed complete when the Goods are delivered to your nominated address.
6.1.1 Delivery to Your Premises – Access and Assistance
Where the delivery location is at your premises, you must provide our representatives with suitable access during normal business hours, together with any assistance reasonably required to deliver the Goods and/or perform the Services.
6.1.2 Delivery in Instalments
We may deliver Orders in instalments unless otherwise agreed in writing. Each instalment may be invoiced separately and must be paid for in accordance with this Agreement.
6.1.3 Delay or Refusal to Accept Delivery
If you delay, fail, or refuse to accept delivery when we are willing and able to deliver, delivery will be deemed to have occurred on the date we were ready to deliver. Without limiting any other rights, we may charge you for reasonable expenses and additional costs incurred as a result, including storage Fees.
6.2 Risk Transfer
Risk in the Goods passes to you immediately upon delivery.
6.3 Insurance Requirement
You must ensure that Goods are adequately insured from the point of delivery.
In addition, if we supply you with any Goods under this Agreement, you agree to maintain, at a minimum, insurance coverage sufficient to cover the full replacement value of such Goods while in your possession or control until title to the Goods passes you or the Goods are returned to us.
6.4 Title Retention
All Goods supplied by the Service Provider remain its property until fully paid, unless provided under a lease or licence, in which case ownership does not transfer. Until title passes (or where no title transfer occurs), the Client holds the Goods on trust and as bailee for the Service Provider.
Security Interests related to the Goods, including rights under the Personal Property Securities Act 2009 (Cth) (“PPSA”), are set out in clause 8.
6.5 Use Responsibility
You are responsible for ensuring that all instructions, recommended uses, applications, installation methods, cautions, and warnings relating to the Goods are followed.
7. RETURNS AND CLAIMS FOR GOODS AND SERVICES
7.1 Manufacturer’s Returns Policy
You acknowledge that all Goods are supplied subject to the returns and claims policies of the relevant manufacturer or supplier. You agree to accept Goods in accordance with this Agreement and any applicable manufacturer or supplier terms. You indemnify and hold us harmless for any additional obligations or any failure or default by the manufacturer or supplier.
7.2 Customised Goods Not Returnable
Where Goods include customised elements for you, are considered special or unusual by us, are sourced from overseas, are supplied by a supplier no longer trading, or are otherwise not readily returnable to the manufacturer or supplier, you may not return these Goods or cancel related Services.
7.3 Duty to Inspect
You must inspect all Goods immediately upon delivery. If you wish to return Goods, request a refund, or make a claim, you must provide written notice to us within seven (7) days of delivery. If you do not provide such notice within this period, the Goods will be deemed accepted, and you will have no further right to return, refund, or claim.
7.4 Return Conditions
Where you are entitled to return Goods under this Agreement, the Goods must be returned in their original, unopened condition. However, if upon opening it is evident that the Goods are different from what is described on the packaging or are faulty, the Goods may be returned.
7.5 Return Costs
You are responsible for all costs and expenses we incur in arranging the return of Goods to the manufacturer or supplier and/or cancelling any related Services, unless these costs are covered by the manufacturer or supplier.
Where we arrange a return or refund on your behalf, or if you cancel an Order after it has been accepted by us, you agree to pay a return or cancellation Fee. This Fee covers the administration costs we incur in processing the return, refund, or cancellation. We may deduct the return or cancellation Fee from any amounts otherwise due to be refunded to you. The amount of the Fee will be determined at our discretion and communicated to you in advance, where possible.
7.6 Use and Modification
You indemnify and hold us harmless against all allegations and claims related to Goods once they have been used, installed, customised, or resold by you, without prejudice to any recourse the end customer may have with the manufacturer.
8.1 Personal Property Securities Act
8.1.1 Acknowledgment
The Client acknowledges that (i) the Service Provider’s interest in Goods supplied under this Agreement constitutes a Security Interest under the PPSA; (ii) this Security Interest extends to all Goods supplied, including after-acquired property, proceeds, and Goods incorporated into other property; and (iii) this Agreement is a security agreement under the PPSA.
8.1.2 Purchase Money Security Interest
For Goods supplied on credit, the Service Provider retains a PMSI until full payment is received.
8.1.3 Registration and Costs
The Service Provider may register its Security Interest, including any PMSI, on the Personal Property Securities Register as it deems appropriate. The Client consents to such registration, must assist as required, and bears all associated costs.
8.1.4 Perfection and Enforcement
The Client must (i) take all necessary steps to perfect and maintain the Security Interest; (ii) not impair its enforceability, priority, or validity; and (iii) irrevocably appoint the Service Provider as attorney to act in its interests regarding registration, modification, or enforcement.
8.1.5 Waiver of Notices
The Client waives its right to PPSA notices unless legally required.
8.1.6 Rights Upon Default
On non-payment or default, the Service Provider may, after reasonable notice (i) enter the Client’s premises to retrieve secured Goods with minimal disruption; (ii) resell retrieved Goods, applying proceeds to outstanding amounts; and (iii) take any other PPSA-permitted enforcement action.
8.1.7 Exclusion of Certain PPSA Provisions
Where Chapter 4 of the PPSA applies, the following provisions do not apply, to the extent permitted by law; sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 142, 143 and 157.
8.2 Limited Power of Attorney
You irrevocably appoint us as your attorney with limited powers to recover unpaid Goods, enforce Security Interests, or collect sums due:
(i) we will give written notice of default and a reasonable period to remedy before exercising this power;
(ii) this power remains irrevocable while any amount remains unpaid and is limited to actions necessary to enforce Security Interests;
(iii) we will act reasonably and in good faith and provide written notice before major enforcement action; and
(iv) if payment remains outstanding after the remedy period, we may, without further notice, enter your premises to repossess unpaid Goods or secured assets.
You indemnify us against any claims, costs, or damages arising from lawful enforcement, provided we act in accordance with this Agreement and applicable law.
This Part applies only where you engage us to provide ongoing managed IT Services under an Associated Agreement.
10.1 Environment
You must not modify, move, or install software on the Environment without our prior written approval. Any Services needed to fix issues caused by your unauthorised changes are out-of-scope and not covered under any Associated Agreement.
10.2 Software Requirements
All software in the Environment must be genuine and licensed. You must provide proof of licensing upon request. If we specify minimum hardware or software requirements in an Associated Agreement, you must implement and maintain them throughout the Service term.
Some Services require the installation of Software Agents within the Environment. You must not remove, disable, bypass, or interfere with these Software Agents unless we explicitly direct you to do so.
10.3 Device Lifecycle Management
You are responsible for replacing hardware and software on a reasonable lifecycle to ensure the Services can be delivered effectively. We may identify Devices as outdated or unsupported if they are no longer reliable or compatible with current systems.
If you choose to keep using these Devices, we may either exclude them from support or charge extra for the time spent supporting them. We will help you plan for upgrades where needed.
10.4 Updates
We will install or apply updates, patches, or vendor-issued upgrades as agreed and we will follow applicable vendor guidance when doing so.
You acknowledge that updates are developed and supplied by third parties and may occasionally affect system performance or compatibility. We are not liable for issues arising from third-party updates except to the extent caused by our gross negligence or failure to follow agreed procedures.
If we withhold an update that addresses a known critical security vulnerability, we will notify you. Any decision by us to withhold an update will not expand our liability, and our liability (if any) remains subject to the exclusions and limitations set out in this Agreement.
10.5 Material Changes and Change Control
The Services are based on the information and assumptions available when this Agreement or any Associated Agreement is signed. If those assumptions materially change, including changes to your Environment, infrastructure, user numbers, business requirements, or service scope, we may review the impact on timing, pricing, and feasibility and issue a new Quote. Agreed changes will be documented in writing and form part of this Agreement. Any additional costs arising from such changes will be payable by you.
10.6 Moves, Adds, and Changes
You may request operational adjustments at any time, such as moves, adds, or modifications. These day-to-day changes are separate from material changes under clause 10.5 and must be approved by us before implementation. Approved changes will be confirmed in writing by Quote or otherwise, and automatically form part of this Agreement or any Associated Agreement. Any related cost or timeframe adjustments will be confirmed to you, and additional costs will be payable by you.
10.7 Vendor Authorisation
You must ensure that we are authorised to liaise with external vendors as needed to provide the Services. If authorisation is missing, we may charge for time spent obtaining it. You must maintain authorisation for new vendors as relationships commence.
11.1 EULAs
You authorise us to accept user licence agreements, terms of service, customer agreements, subscription terms, or other similar third-party terms (“EULAs”) on your behalf as required to provide the Services. You acknowledge and agree to be bound by the applicable EULAs, including any updates by the relevant provider. We will provide or link to EULAs on request or before deployment where reasonably practicable. You must pursue any enforcement directly with the applicable provider. We may amend any Associated Agreement as needed to maintain compliance with third-party EULAs.
If you do not agree to any third-party EULA required for a Service, you must notify us immediately. We may suspend or cancel the affected Service if your refusal prevents us from delivering it, and you acknowledge that such refusal may affect agreed delivery dates or milestones.
11.2 Unmanaged and Unidentified Devices
Unless otherwise stated in an Associated Agreement, Devices will not receive or benefit from the Services while they are detached from or unconnected to the Environment. We are not responsible for supporting, diagnosing, or resolving issues within the Environment caused by the connection or use of unidentified or unauthorised Devices. We are also under no obligation to provide Services to Devices that have not been expressly identified and authorised in the applicable Associated Agreement.
11.3 Service Count Audits and Billing Adjustments
You must promptly notify us of any changes to the number of managed users, seats and Devices, including user offboarding. We will periodically audit the user, seat and Device count in line with our monthly service reconciliation processes. If an audit reveals an increase in users, seats or Devices or other consumption-based Services we may back bill you for additional costs. Reductions in any counts will take effect in the next billing cycle, and no credits will be issued for overcharges incurred before the adjustment. Any reduction in user, seat, or device counts may be limited or capped in accordance with the applicable Associated Agreement.
This Part sets out the general legal terms governing the relationship between the Parties and applies across all Services provided under this Agreement unless expressly stated otherwise. Some clauses or subclauses may refer to specific types of Services, such as managed services, but are included here because they reflect general principles relevant to the overall client relationship. Where a clause applies only in specific circumstances, this will be expressly stated.
13.1 Client Responsibilities
The following responsibilities apply to you and must be carried out at your own expense.
You agree to:
(i) fulfil all obligations under this Agreement and any Associated Agreement;
(ii) act courteously and professionally with us and our Personnel;
(iii) comply promptly with our reasonable directions, and provide timely information, decisions, and access needed for us to deliver the Services efficiently;
(iv) be responsible for any your Personnel;
(v) use the Services only for the purposes specified in this Agreement, and not permit any unauthorised or illegal use;
(vi) promptly inform us of any changes that may materially affect the Services or their provision;
(vii) promptly notify us of any Service deficiencies under this Agreement and take all reasonable steps to mitigate their impact;
(viii) comply with all applicable laws and regulations regarding the use of the Services.
13.1.1 Remedies for Misuse
If you fail to meet any of your obligations under this clause, we may, without liability, suspend or limit the affected Services, adjust timeframes, or charge additional Fees to reflect the extra time or cost required. We may also remove or disable any offending material, report the issue to relevant authorities where appropriate, and recover from you any costs or losses arising from the breach of this clause 13.1.
13.2 Access
(a) Applies Only to Managed Services
You agree to grant us and our vendors 24×7 access to the Environment to monitor, diagnose, manage, communicate with, retrieve information from, and otherwise access it as needed to provide the Services. Our right to monitor, diagnose, or manage the Environment does not create any obligation for us to do so unless expressly stated in an Associated Agreement.
(b) Applies to All Engagements
You are responsible for securing, at your expense and before Services begin, all rights of entry, licences, permits, or other permissions needed for us to deliver the Services physically and virtually.
You must maintain proper and safe environmental conditions at all times. We are not required to provide Services under conditions that pose health or safety risks or require extraordinary or non-standard efforts.
When providing onsite Services, we will use reasonable endeavours to comply with your notified site safety and security requirements, provided those requirements do not unreasonably restrict the delivery of the Services.
We are not liable for delays or failures caused by your denial of full access to the Environment, your Personnel, or your premises. If access is obstructed, we may bill you for additional time needed to gain access.
13.3 Artificial Intelligence
We may use Artificial Intelligence (AI) technologies to enhance or optimise the Services and will comply with applicable data protection laws when doing so. While we implement AI in accordance with industry standards for performance and reliability, we do not guarantee that AI technologies will be error-free or achieve specific outcomes. You agree to use any AI-driven recommendations responsibly and acknowledge that we are not liable for any damages arising from the use or reliance on AI technologies, except in cases of gross negligence or wilful misconduct.
Your use of AI tools is entirely your responsibility. You must ensure that no confidential information, personal data, Deliverables, our Intellectual Property, or other information obtained from or through the Services is entered into any AI tool or platform in a manner that could expose it to unauthorised access, disclosure, or reuse. You are responsible for complying with all applicable laws, managing data access and permissions, and assessing any risks or outcomes arising from AI use. We are not liable for any loss, damage, or data exposure arising from your use or misuse of AI tools.
13.4 Advice
(a) Applies Only to Managed Services
We may provide written or verbal Advice from time to time, including recommendations that may require you to make additional purchases or investments at your cost. Unless otherwise stated in an Associated Agreement, any work required to remediate issues resulting from your failure to follow our Advice will be treated as out of scope and charged at our standard rates.
Our Advice is provided in good faith based on the information available at the time. We do not provide legal, financial, or other professional advice, and we are not responsible for reliance placed on our Advice outside the scope of the Services. Our liability for Advice is subject to the exclusions and limits in this Agreement.
If we reasonably determine that failure to follow our Advice makes the Services uneconomic or technically unreasonable to provide, we may terminate the relevant Associated Agreement for cause.
(b) Applies to All Engagements
Where we recommend third-party Goods or Services, those recommendations form part of our Advice and are also given in good faith. While we may assist with procurement, implementation, or configuration, we do not guarantee the suitability, performance, or compatibility of any third-party Goods or Services. Responsibility for their performance rests solely with the relevant provider
13.4.1 Client Assumed Risk for Declined Recommendations or Security Measures
Applies to All Engagements
If we recommend any measures, upgrades, configurations, or other actions (including security, backup, protection, hardware, software, or managed Services) and you choose not to implement them, delay implementation beyond a reasonable timeframe, modify them without our approval, or disable or interfere with them after deployment, you acknowledge and accept all associated risks.
Any investigation, remediation, or recovery work arising from such incidents will be billed at our then-current rates.
This clause does not limit our liability for incidents caused by our gross negligence, wilful misconduct, or breach of law.
13.5 Authorised Contact(s)
At the start of this Agreement, the Client must appoint at least one (1) Authorised Contact to act on its behalf in all matters related to the Services. This person remains in place until the Client notifies us of a replacement. The Client must ensure the Authorised Contact is reasonably available to us at all times.
13.6 Insurance
13.6.1 General Insurance Obligations
Each Party must maintain any insurance required by law.
13.6.2 Additional Agreed Insurance
The Parties may agree in writing on any additional insurance reasonably required for the Services. You must have such insurance in place before the Services commence and maintain it for as long as the Services continue.
If you fail to maintain the agreed insurance, you must either promptly obtain equivalent coverage or, before the Services commence or continue:
(i) confirm in writing that you assume the associated risks; and
(ii) acknowledge in writing that you waive, to the extent permitted by law, any right to seek recourse from us, our affiliates, or our insurers for any claim, loss, or damage arising from the absence of such coverage, except where such claim arises from our gross negligence, wilful misconduct, or breach of applicable law.
13.6.3 Proof of Insurance
During the term of this Agreement, either Party may request reasonable proof that the other maintains any required or agreed-upon insurance coverage. The requested Party must provide such proof, or a written explanation of any missing coverage and assumed risk, within ten (10) Business Days of the request.
13.6.4 Notice of Changes
Each Party agrees to notify the other in writing at least thirty (30) days prior to any cancellation, modification, or lapse in the required insurance coverage.
13.6.5 No Limitation of Liability
The insurance requirements set forth herein are not intended to and shall not be construed to limit or modify any of the liabilities or obligations assumed by either Party under this Agreement.
13.7 Formal Service Cancellation and Change Requests
Any request to cancel, reduce, suspend, or otherwise vary any Services (including individual licences, subscriptions, or service components) must be made in writing and delivered in accordance with clause 24.16 of this Agreement to be effective.
Informal communications, including general emails, support tickets, voicemails, or verbal discussions, do not constitute valid notice of cancellation or service variation unless expressly confirmed by us in writing.
To help ensure accuracy and continuity of service, we may require the Client to complete a cancellation or service-change form specifying the Services affected, the effective date, and the reason for the change. Failure to provide sufficient detail may delay processing.
Services and related Fees will continue to apply until valid notice is received and confirmed in accordance with this Agreement.
13.8 Compliance with Laws
Each Party must comply with all laws and regulations directly applicable to the performance of its obligations under this Agreement.
14.1 Fees
You agree to pay the Fees described in each Associated Agreement. If no Fee schedule is included, you shall compensate us on an hourly basis according to our prevailing standard hourly rate, or as otherwise directed by us.
All Fees are payable in Australian Dollars.
14.2 Schedule
Fees for the Services will be invoiced, and all invoices shall be paid by you in the manner specified on the invoice, on or before the Due Date as set out on the invoice.
Subject to clause 14.14, you must pay all invoices in full without set-off or deduction of any kind.
14.3 Deposits and Security
We may require you to pay us in advance, pay a deposit, or provide a guarantee or other form of security as a condition of supplying Goods or Services. We are under no obligation to commence performance of the Services or supply of Goods until that has been received.
14.4 Creditworthiness
We may obtain and use commercial credit information about you for the purposes of assessing credit risk, managing your account, and enforcing payment obligations, in accordance with applicable privacy laws and our Privacy Policy, as updated from time to time and available upon request.
14.5 Expenses
Unless otherwise stated in an Associated Agreement, you must reimburse us for all reasonable and necessary out-of-pocket expenses incurred in performing the Services, including call-out Fees, travel, accommodation, and other related expenses. We will provide appropriate supporting documentation for such expenses upon request.
14.6 Annual Fee Increase
We may adjust Fees annually on the anniversary of this Agreement, in our discretion, to reflect increases in our costs of doing business. In determining any adjustment, we may take into account:
(i) changes in the Consumer Price Index or similar index;
(ii) increases imposed by third-party suppliers; and
(iii) other relevant market, operational, or business factors, including maintaining the profitability of the Services.
Adjusted Fees will not be lower than the prior year’s Fees and will remain in effect until the next adjustment. You agree that such an increase is not a material alteration to this Agreement and is not grounds for termination.
This clause does not apply to Services set out in clause 14.7.
14.7 Variable and Third-Party Charges
Fees for user-based Services, consumption-based Services, and third-party subscriptions may vary from month to month based on actual usage, vendor pricing changes, or adjustments identified under clause 11.3.
Any such changes will be automatically reflected in your next billing cycle without the need for a new Quote or approval.
You agree to indemnify and reimburse us for all third-party and supplier costs incurred on your behalf and invoiced by us.
14.8 Time-Based Charges
For time-based Services, a minimum billing period of one (1) hour applies per engagement, after which charges will accrue based on the actual time worked.
14.9 Non-Refundable Fees
All Fees paid under this Agreement, including any Fees paid in advance, are non-refundable, regardless of any termination or suspension of Services, except as expressly provided in clause 18.4.3, or as required by applicable law.
14.10 Taxes
You are responsible for all freight, insurance, and taxes or governmental fees associated with the Services. Should you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof.
14.11 GST
Unless stated as ‘GST inclusive,’ any price for a supply under this Agreement does not include GST, meaning GST will be added to the amount.
If the supply is taxable, the Service Provider can charge the Client an additional amount for GST, calculated by multiplying the price by the current GST rate. The Client must pay the GST amount at the same time as the original price, provided the Service Provider has issued a valid tax invoice.
14.12 Non-Payment
If any undisputed amount is not paid by the Due Date, we may:
(i) charge interest at 1.5% per month (or the maximum allowed by law, if lower);
(ii) suspend the Services until payment is received; and
(iii) recover any collection or legal costs on a full-indemnity basis.
If Services are suspended for non-payment, monthly or recurring Fees will continue to accrue during the suspension period. A reasonable reactivation Fee may apply.
We are not liable for any loss, delay, data loss, or business interruption arising from or related to the suspension of Services.
14.13 Underpayments or Overpayments
If an invoice is found to be incorrect after payment, any underpayment or overpayment will be recoverable. Overpayments will be set off against future invoices.
14.14 Fee Disputes
If you wish to dispute an invoice, you must notify us in writing within fourteen (14) days of the invoice date and provide reasonable details of the dispute. You may withhold payment only of the disputed portion of the invoice. All undisputed amounts must still be paid by the Due Date. Upon resolution of the dispute, any amount agreed or determined to be payable must be paid promptly. Failure to notify us of any dispute within the fourteen (14) day period constitutes a waiver of your right to dispute the invoice.
15.1 Exclusion of Warranties
To the maximum extent permitted by law, the Services are provided on an as-is basis and your use of them is at your own risk. Except as expressly stated in this Agreement or any Associated Agreement, all warranties, terms, or conditions implied by law (including fitness for purpose and merchantability) are excluded.
We do not warrant that any particular result, outcome, or business objective will be achieved, or that the Services will be suitable for any purpose other than those expressly set out in an Associated Agreement.
15.2 Statutory Guarantees and Non-Excludable Rights
Nothing in this Agreement excludes, restricts, or modifies the statutory guarantees, or any condition, warranty, right, or remedy conferred on either Party by [State] law that cannot be excluded, restricted, or modified by agreement.
15.3 Limited Warranties
Each Party represents and warrants that:
(i) it has full legal capacity and authority to enter into this Agreement;
(ii) it holds all licences and consents required to perform its obligations;
(iii) entering into this Agreement does not breach any existing agreements; and
(iv) this Agreement is executed by authorised individuals.
We warrant that the Services will be performed:
(v) by Personnel appropriately qualified and/or experienced, and in a professional and competent manner;
(vi) in accordance with this Agreement and any Associated Agreement; and
(vii) in compliance with the commercial standards generally accepted within the Service Provider’s industry.
16.1 Liability Limitation
To the maximum extent permitted by law, neither Party is liable for any indirect, consequential, or special loss, or for any loss of profit, revenue, savings, goodwill, data, or business opportunity arising out of or in connection with this Agreement, any Associated Agreement, or the Services, even if the loss was foreseeable or the Party was advised of its possibility.
16.2 Exceptions
Nothing in this Agreement shall exclude or limit liability for:
(i) death or personal injury caused by negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) damages arising from the gross negligence, or wilful misconduct of the Party seeking to limit its liability; or
(iv) any other liability that cannot be excluded or limited under applicable law.
Liability is proportionately reduced to the extent that a claim is caused or contributed to by the other Party’s actions, omissions, or failure to comply with its obligations under this Agreement.
16.3 No Personal Liability
Your rights and remedies in relation to the Services are solely against us. To the maximum extent permitted by law, our directors, officers, employees, and agents have no personal liability to you except in cases of fraud, wilful misconduct, or liability that cannot lawfully be excluded.
16.4 Aggregate Liability
Except as stated in clauses 16.2 and 16.5, our total liability for all claims under or in connection with this Agreement, whether in contract, tort (including negligence), or otherwise, is limited to the total Fees paid by you for the specific Service giving rise to the claim during the three (3) months immediately before the event causing the loss, excluding hard costs for licences or hardware.
This limit does not apply to reasonable legal costs awarded to a prevailing Party, your indemnity obligations, or any amounts due under the non-solicitation clause.
16.5 Remedies for Non-Excludable Guarantees
To the extent that any statutory guarantee applies and we are permitted by law to limit our liability, our liability is limited, at our option, to:
(i) for Goods – the replacement, repair, or resupply of the Goods, or payment of the cost of doing so; and
(i) for Services – the resupply of the Services, or payment of the cost of resupply.
16.6 Client Caused Losses
We are not liable for any damages, losses, or claims arising from any act, omission, error, or failure by you or your Personnel resulting from:
(i) failure to follow our written Advice or recommended security measures;
(ii) inaccurate information or unauthorised changes to the Environment or Services;
(iii) use of unlicensed, non-compliant, or incompatible hardware or software;
(iv) failure to maintain or protect backups or security controls; or
(v) errors or omissions in the operation, configuration, or management of the Environment or Services.
16.7 No Guarantee of Permanent Resolution
You acknowledge that technology, software, and external factors may cause previously resolved issues to reoccur. We do not guarantee that a resolved issue will not arise again due to factors beyond our control. If a recurrence results from our incomplete or incorrect work, we will reattempt resolution at no additional charge, provided you notify us within seven (7) days of the original resolution. All other recurrences will be treated as new service requests and charged at our standard rates.
16.8 Survival
This clause will survive any termination of the Agreement.
To the fullest extent permitted by law, you indemnify and hold us and our Personnel harmless from all losses, damages, liabilities, and costs (including reasonable legal fees) arising from any claim connected with:
(i) your breach of this Agreement or any third-party intellectual-property rights;
(ii) any unauthorised use, loss, or alteration of data;
(iii) any negligent, wilful, fraudulent, or unlawful act or omission by you or your Personnel; or
(iv) any use or misuse of the Goods or Services by you or your Personnel.
You must promptly notify us of any claim that may give rise to this indemnity. We may, at our discretion, assume control of the defence or settlement of the claim, provided that we act reasonably and in good faith. You must cooperate fully and reimburse us for all reasonable costs associated with that defence to the extent arising from your indemnified acts or omissions.
18.1 Termination Without Cause
Either Party may terminate this Agreement or any Associated Agreement by providing thirty (30) days’ written notice.
Notwithstanding, if you terminate a fixed term Service(s) before the expiry of the committed term, you will be required to pay the Termination Fee set out in clause 18.4.2. Any ad hoc, variable, or month-to-month Services that are not subject to a fixed term will not incur the Termination Fee, unless otherwise stated in the relevant Associated Agreement.
18.2 Termination for Cause
Either Party may terminate this Agreement or any Associated Agreement immediately by written notice if the other Party:
(i) becomes insolvent, bankrupt, subject to liquidation (other than for amalgamation or reconstruction), receivership, or any similar event affecting its ability to perform its obligations;
(ii) is subject to a force majeure event, as defined in clause 24.11, that continues for more than ninety (90) days;
(iii) breaches this Agreement or an Associated Agreement and fails to remedy the breach within thirty (30) days after receiving written notice requiring it to do so, or within fourteen (14) days where the breach relates to a payment obligation.
18.2.1 Change of Control
If you undergo a change in control such that a new person or entity obtains majority ownership or voting rights, you must notify us in writing within thirty (30) days. We may, acting reasonably, terminate this Agreement or any Associated Agreement on thirty (30) days’ written notice if the change materially affects our relationship, credit risk, or regulatory obligations.
18.2.2 Client Activity as a Basis for Termination
If (i) Client-supplied equipment hardware, software, or your actions (or inaction) cause malfunctions to the Environment requiring us to remediate the Environment on three (3) or more occasions, and you fail to resolve the issue as directed, or (ii) you, your Personnel, or representatives behave in a way that makes it impractical or unreasonable for us to continue providing Services, we may terminate this Agreement or the relevant Associated Agreement with fourteen (14) days’ written notice, or amend the Associated Agreement to exclude the problematic items.
18.3 Mutual Consent
The Parties may mutually agree in writing to terminate an Associated Agreement or this Agreement at any time.
18.4 Consequences Upon Termination
18.4.1 Cessation of Service Access
On termination, your right to use the Services ceases immediately.
18.4.2 Early Termination Fee
If we terminate this Agreement or an Associated Agreement for cause, or you terminate a fixed term Service without cause before the end of its committed term, you must pay an early Termination Fee equal to 100% of the remaining Fees due for the rest of the term.
The Early Termination Fee applies only to our own Service Fees and is in addition to any amounts payable under clauses 18.5 and 18.6, which cover discounted Fees and third-party term-based Services respectively.
The Termination Fee reflects the actual and reasonable costs and commitments incurred by us in reliance on this Agreement and any Associated Agreement, including licensing, provisioning, and volume pricing. It will be included in the final invoice and is payable in accordance with the payment terms of this Agreement. If pricing has changed during the term, the Termination Fee will be based on the higher of the original Quote or your most recent invoice.
18.4.3 Refunds
If you terminate this Agreement or an Associated Agreement for our breach, or if we terminate without lawful cause, we will refund any prepaid Fees for Services not yet provided on a pro-rated basis, less reasonable costs already incurred.
Setup, administrative, hardware, software, and other one-off costs are also non-refundable unless stated otherwise in an Associated Agreement. You also remain liable for all costs set out in clause 18.6
18.4.4 Outstanding Payments and Accrued Costs
You must continue all scheduled payments, including outstanding amounts, for all work, purchases made on your behalf, and expenses incurred up to the termination date.
18.4.5 Continuation of Associated Agreements
If this Agreement terminates, the Parties may agree in writing that any current Associated Agreements remain in effect until their term ends. In that case, the terms of this Agreement continue to apply unless otherwise agreed in writing.
18.4.6 Survival and Accrued Rights
Termination does not affect any rights or obligations that accrued before termination or any clauses that expressly or by implication survive.
18.5 Repayment of Discounted Fees
If you received a price discount or Fee waiver based on a minimum commitment term, and we terminate for cause or you terminate for convenience in contravention of this Agreement, you must repay the value of any discounts or waived Fees. This is calculated as the difference between the discounted rates you paid and the standard rates that applied when the Services were delivered, from the start date of the Associated Agreement to the termination date.
18.6 Liability for Term-Based Services
If you terminate any Services before the end of their committed term for any reason, you remain liable for all outstanding amounts under such term-based agreements we procured or entered into on your behalf. This includes, but is not limited to, software licences, subscriptions, telecommunications services, or network solutions or any other third-party Services with a minimum commitment period. We may pass on any termination-related Fees, such as early termination fees, transfer charges or outstanding supplier costs. These obligations survive termination of this Agreement.
18.7 Licensed Equipment and Software Removal
Any Goods or software we provide that are leased or licensed (not sold or transferred) must be returned or made accessible for removal upon termination. You must allow us access during normal business hours for this purpose. If access is denied, or if any Goods or Service Provider-supplied software are missing or damaged (beyond fair wear and tear), we may invoice you for the full replacement value, which is payable immediately. This clause applies only to leased or licensed items and excludes Goods intended for purchase.
18.8 Transition
If you request transition assistance, we will provide reasonable help once all outstanding Fees are paid. Transition work is billed at our then-current hourly rate and may require up-front payment.
18.9 Data Retention
Unless stated otherwise in an Associated Agreement, we have no obligation to retain any Client data beyond thirty (30) days after termination. This includes backups, which will be deleted after that period unless you notify us in writing before expiry that you intend to take ownership of or migrate the data. You agree to hold us harmless and indemnify us against any claims, costs, fees, or expenses arising from or related to the deletion of your data beyond this specified timeframe.
19.1 Non-Disclosure and Permitted Use
Each Party (Receiver) must keep the other Party’s Confidential Information private and use it only to perform this Agreement or as otherwise authorised in writing. The Receiver must ensure its Personnel or representatives with access are bound by confidentiality obligations at least as strict as these.
19.2 Standard of Care
The Receiver must protect the Discloser’s Confidential Information with the same level of care it uses to protect its own confidential information, and at least a commercially reasonable standard.
19.3 Legally Required Disclosure
If disclosure is legally required, the Receiver must promptly notify the Discloser (where lawful) so the Discloser can seek protection. The Receiver may disclose only what its legal counsel advises is legally required and must take reasonable steps to minimise harm.
19.4 Breach Notification and Remedies
If either Party becomes aware of any actual or suspected unauthorised use or disclosure of the other Party’s Confidential Information, it must promptly notify the other Party and take all reasonable steps to prevent, stop, or mitigate the unauthorised use or disclosure.
Each Party acknowledges that a breach of this clause may cause irreparable harm for which monetary damages may be inadequate, and that the affected Party may seek injunctive or other equitable relief in addition to any other remedies available at law or in equity.
19.5 Return or Destruction of Information
On termination or on the Discloser’s written request, the Receiver must return or securely destroy all Confidential Information, except where retention is required by law. The Receiver must ensure any third parties who received the information do the same.
19.6 Survival
These confidentiality obligations continue for three (3) years after termination or expiry of this Agreement, and indefinitely for trade secrets.
20. DATA PROTECTION AND PRIVACY
20.1 Compliance with Privacy Laws
We will comply with all applicable laws relating to the protection, use, storage, and processing of personal information, including the Privacy Act 1988 (Cth), the Australian Privacy Principles, and data breach notification requirements.
We may, acting reasonably, make any changes to the Services that we consider necessary to maintain compliance with applicable privacy or data-protection laws, regulatory guidance, or industry standards. We will notify you of any material change that impacts functionality or cost.
20.2 Service Provider Security Measures
20.2.1 Data Protection and Security Measures
We will implement and maintain reasonable technical and organisational measures to protect personal information in our possession from unauthorised access, disclosure, alteration, or loss.
We will use and disclose Client data only to the extent necessary to deliver the Services, as authorised by you, or as permitted by law. All Personnel with access to personal information will receive appropriate privacy training and must comply with this Agreement and applicable privacy laws.
Although we apply robust safeguards and follow industry standards, no system is completely immune from risk, and we cannot guarantee the prevention of all security incidents.
20.2.2 Privacy Policy
You acknowledge and agree that our Privacy Policy forms part of this Agreement. The Privacy Policy explains how we collect, use, store, and disclose personal information. We may update the Privacy Policy from time to time to reflect changes in law or our practices, and the updated version will apply once published on our website. In the event of any inconsistency between this Agreement and the Privacy Policy, this Agreement prevails.
20.2.3 Transparency and Consent
We will provide clear information regarding the collection, use, and sharing of personal information, including the types of information collected and any disclosure to third parties or sub-processors. Where required by law, explicit consent shall be obtained before processing personal data. You may request access or corrections to your data at any time.
20.2.4 Cross-Border Data Transfers
We will ensure that any overseas transfer of personal information complies with applicable Australian privacy laws. We will verify that overseas recipients have comparable privacy protections through binding legal obligations or enforceable contracts, obtain your consent where legally required, and notify you of any material changes in cross-border transfers or overseas data processing arrangements that introduce material risks or affect the security or privacy of your data.
20.2.5 Automated Decision-Making
Where automated processes are used to make decisions involving personal information or affecting you , we will (i) inform you, (ii) describe the nature and categories of data processed, and (iii) allow you to request a review of significant automated decisions by a human representative, where feasible.
20.3 Client Responsibilities
You are responsible for securing your own systems and data and implementing appropriate security measures except to the extent the Services specifically cover those functions.
You warrant that all data you provide is accurate, complete, and lawfully obtained, and that you have the necessary rights to share it with us.
You must also take reasonable information-security precautions and ensure your Personnel follow good cybersecurity practices. These include maintaining up-to-date antivirus software and system patches, using multi-factor authentication where available, restricting software installation to approved or trusted sources, educating users on phishing and social-engineering risks, and promptly notifying us of any suspected or actual security incident or vulnerability.
You also agree to take all reasonable steps to mitigate any loss, damage, or liability arising from or related to a breach of this Agreement or any Data Breach involving your information.
20.4 Data Breach Notification and Allocation of Costs
Each Party will notify the other of any Data Breach as soon as practicable and, within seventy-two (72) hours where reasonably possible.
The Parties will cooperate reasonably in assessing whether affected individuals should be notified, and in issuing any required notifications, in compliance with applicable privacy laws
Costs will be allocated according to fault. If we cause the Data Breach through gross negligence, wilful misconduct, or breach of law, we will bear our share. Otherwise, you will bear the costs of investigation and response.
Both Parties agree to maintain reasonable security logs and records relevant to Data Breaches and security incidents, in line with operational and legal requirements.
20.4.1 Breach Management Control
If a Party’s insurer, legal counsel, or incident-response provider directs breach management, that Party may be restricted from issuing notifications without prior approval. That Party must inform the other (unless prohibited by law) and will not be in breach of this clause while such restriction applies. Neither Party may issue notifications on behalf of the other without express written consent.
Both Parties will cooperate in good faith, subject to any legal, regulatory, or insurance restrictions, including obligations to preserve legal privilege.
20.5 Data Loss and Backup Responsibilities
We are not responsible for lost or corrupted data except where expressly stated in an Associated Agreement. If engaged for backup and recovery, we will provide those Services as agreed. In the event of data loss, we will assist in recovery efforts as per the terms of the Associated Agreement.
Except to the extent that we are providing relevant backup services under an Associated Agreement, you must undertake frequent and adequate backups of your data, and ensure that backups are completed, secured, and periodically tested to confirm they can be successfully restored.
20.6 Data Retention and Destruction
We will retain personal information only as long as necessary to fulfil our obligations under this Agreement or as required by applicable law. Upon termination, we will securely delete or return personal data within thirty (30) days at your request, unless retention is required by law.
20.7 Marketing and Updates
We may send marketing materials, newsletters, and general company updates to you and your authorised contacts from time to time. You may unsubscribe from these communications at any time using the link provided or by contacting us directly.
20.8 Service Communications
You authorise us to send essential service-related communications to you and your personnel, including notifications, alerts, maintenance notices, and other operational messages required to deliver or manage the Services. These are not marketing communications and cannot be unsubscribed from.
21. INTELLECTUAL PROPERTY AND OWNERSHIP
21.1 Pre-Existing Intellectual Property
All Intellectual Property in any pre-existing materials, products, software, documentation, or other work products that were created, developed, or acquired by either Party prior to the commencement of this Agreement shall remain the sole and exclusive property of the respective Party. Each Party grants the other a non-exclusive, non-transferable, non-sublicensable licence to use its pre-existing Intellectual Property solely to the extent necessary to fulfil its obligations under this Agreement and any applicable Associated Agreement. This licence terminates when this Agreement or the relevant Associated Agreement expires or terminates.
21.2 Client Data
Client data provided to us remains your property. We will use your data and Intellectual Property only as needed to perform our obligations under this Agreement.
21.3 Deliverables
All Intellectual Property in the Deliverables remains exclusively owned by us or our licensors. You do not obtain any ownership rights.
21.4 Usage Rights
We grant you a non-exclusive, non-transferable, non-sublicensable licence to use the Deliverables only for your internal operations and as specified in this Agreement and any Associated Agreement Any other use requires our prior written consent.
Your licence to use the Deliverables ends immediately upon expiry or termination of this Agreement or the relevant Associated Agreement. On termination, you must stop using and, at our direction, return or destroy all copies of the Deliverables.
21.5 Restrictions on Use
You must not:
(i) modify, alter or create derivative works based on the Deliverables;
(ii) distribute, sell, lease, license, sublicense, assign, or otherwise transfer the Deliverables to any third-party;
(iii) reverse engineer or otherwise attempt to derive the source code of any software Deliverables, except as permitted by law; and
(iv) remove or alter proprietary notices , labels, or marks on the Deliverables.
21.6 Publicity
Neither Party may make any public announcement, press release, or marketing reference regarding this Agreement, the Services, or the other Party, or use the other Party’s name, trade marks, logos, or branding, without the other Party’s prior written consent.
Notwithstanding the above, the Service Provider may identify the Client as a customer for general marketing purposes, provided no Confidential Information is disclosed and no endorsement, partnership, or agency relationship is implied.
21.7 Residuals
We may use Residuals from providing the Services for any purpose, provided we do not disclose or use your Confidential Information, personal information or trade secrets.
22. THIRD-PARTY GOODS AND SERVICES
This clause applies to all Clients who receive, purchase, or use third-party Goods or Services under this Agreement.
22.1 Reliance on and Substitution of Third-Party Services and Providers
You acknowledge that our Services may rely on third-party Goods and Services, which may not always be explicitly identified. We reserve the right to use or change third-party providers at our discretion, provided that such changes do not materially diminish the Services.
You agree to comply with the applicable usage policies, terms, and conditions of any third-party providers, including any updates. You acknowledge that changes made by third-party providers to their terms or services are beyond our control.
We will provide you with the relevant policies and terms that apply to your use of such third-party Goods and Services upon request or prior to the commencement of the applicable Services. We will also make reasonable efforts to assign, transfer, and facilitate all applicable warranties and third-party service level commitments for third-party Goods and Services to you.
22.2 Liability Disclaimer
You acknowledge that the Services may rely on, or incorporate, third-party Goods and Services. Such third-party Goods and Services are provided on an “as is” basis and subject to the terms of the relevant third-party. Except to the extent required by law or expressly stated in this Agreement, we provide no warranties in respect of third-party Goods or Services and disclaim all liability for any loss, damage (including consequential, incidental, or indirect damages), or disruption arising from vulnerabilities, faults, failures, performance issues, or unavailability of any third-party networks, systems, infrastructure, Goods, or Services. You assume all risks associated with the use of such third-party Goods and Services.
Any issues or defects with third-party Goods and Services will be handled in line with the applicable vendor’s terms. We will, on request, assist you in liaising with the vendor, but this does not make us responsible for enforcing the vendor’s obligations or guaranteeing any particular outcome. If you ask us to assist, you agree to pay our then-current hourly rate for that work, along with any up-front amounts we may require.
22.3 Ownership of Third-Party Intellectual Property
All Intellectual Property rights in third-party software, tools, or content used in providing the Services are and shall remain the exclusive property of the respective third-party licensors. You acknowledge that your right to use such third-party software is subject to the applicable licence terms of those licensors.
23.1 Application of Clause
Except as otherwise provided in this clause, neither Party may commence legal proceedings without first following the procedure set out below.
This dispute resolution process does not apply to the recovery of undisputed debts or outstanding Fees payable under this Agreement.
23.2 Good Faith Negotiations
If a dispute arises out of or in connection with this Agreement, the Parties will first attempt to resolve it through good faith negotiations. Either Party may initiate negotiations by giving written notice to the other Party outlining the nature of the dispute.
23.3 Mediation
If the dispute is not resolved through negotiations within fourteen (14) days, the Parties agree to attempt to resolve it through mediation. Mediation will be conducted in accordance with the rules of the Australian Disputes Centre (ADC) or another alternative dispute resolution body as mutually agreed. Mediation will be held at a mutually agreed location, and the Parties must participate in good faith.
Each Party will bear its own legal and other costs and the mediator’s fee will be split equally.
23.4 Arbitration
If mediation does not resolve the dispute within thirty (30) days from the mediation notice, either Party may submit the dispute to binding arbitration. Arbitration will be conducted under the rules of the ADC or another arbitration organisation as mutually agreed.
Arbitration will be held at a mutually agreed location, before a single arbitrator with expertise in contract law, intellectual property, and IT transactions, where possible. If the Parties cannot agree on an arbitrator within seven (7) days after filing, the arbitration organisation will appoint one.
The arbitrator’s fees and arbitration costs will be allocated as determined in the final award. Each Party will bear its own legal and other costs. The arbitrator’s decision is final and binding.
23.5 Court Proceedings
If either Party seeks urgent injunctive or equitable relief, either Party may initiate court proceedings.
24.1 Compliance
Unless expressly stated, the Services are not designed to achieve full regulatory compliance for your business. You remain solely responsible for determining and meeting your compliance obligations.
24.2 Exclusion of Consumer Guarantees
You agree that the Services are supplied or acquired in trade or commerce within the meaning of Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)). Where you are not a consumer, the Parties agree that consumer guarantees do not apply, and that excluding them is fair and reasonable.
Where you qualify as a consumer, nothing in this Agreement excludes or limits any rights or remedies under Australian Consumer Law that cannot be excluded.
24.3 Assignment
We may assign this Agreement to a successor entity on thirty (30) days’ written notice. You may not assign or transfer this Agreement without our written consent. Any unauthorised assignment is void.
24.4 Amendment
Any modification or amendment to this Agreement or any Associated Agreement must be in writing and agreed upon by both Parties.
24.5 Costs of Agreement
Each Party must pay its own expenses incurred in negotiating and executing this Agreement and any Associated Agreement.
24.6 Time Limitations
Unless prohibited by law, any action arising from this Agreement must be initiated within twelve (12) months of when the cause of action arises, or it will be permanently barred.
24.7 Severability
If any provision of this Agreement or an Associated Agreement is declared invalid, such provision will be ineffective only to the extent of the invalidity, and the remainder of that provision and all remaining provisions of this Agreement or any Associated Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
24.8 Other Terms
We will not be bound by any terms or conditions printed on or included in any purchase order, invoice, memorandum, or other written communication provided by you, unless expressly accepted by us in writing. Further, no trade usage or practice between the Parties will modify or interpret this Agreement.
24.9 No Waiver
The failure of either Party to enforce or insist upon compliance with any term of this Agreement or any Associated Agreement does not constitute a waiver of that term.
24.10 Entire Agreement
This Agreement, along with all Associated Agreements, constitutes the entire agreement between the Parties. No representation or statement not embodied herein is binding.
24.11 Force Majeure
Neither Party shall be liable for costs, delays, or failures to perform any obligations under this Agreement or any Associated Agreement due to circumstances beyond their reasonable control. Such circumstances include, but are not limited to, acts of God, natural disasters, pandemics, government actions, acts of terrorism, labour disputes, widespread cybersecurity incidents (including infrastructure and ransomware attacks or critical software vulnerabilities), and other force majeure events.
To rely on this clause, the affected Party must notify the other Party in writing as soon as reasonably practicable, describing the event’s impact, and use reasonable efforts to minimise disruption.
This clause does not apply to payment obligations or routine data security and/or confidentiality measures where the affected Party could reasonably have mitigated the risk by exercising due care.
24.12 Non-Solicitation
For the duration of this Agreement and twelve (12) months after termination, you agree not to solicit or induce any of our Personnel with whom you had direct interactions or who were involved in providing the Services.
In the event of a breach of the terms of this section, the Parties acknowledge and agree that the damages to the other Party would be difficult or impracticable to determine. As a result, you will pay us liquidated damages equal to 25% of the solicited Personnel’s current annual salary, representing a genuine pre-estimate of our likely losses (including recruitment, training and transition costs and any lost revenue).
We may also seek injunctive relief to prevent further breaches. If any provision of this clause is deemed invalid or unenforceable, it will be adjusted to the minimum extent necessary to preserve the intent and effect of this clause.
24.13 Survival
The following clauses will survive termination or expiry of this Agreement and any Associated Agreement: clause 8 (Security Interests), clause 13.4.1 (Client Assumed Risk for Declined Recommendations or Security Measures), clause 14 (Fees and Payment), clause 15 (Limited Warranties), clause 16 (Limitations of Liability), clause 17 (Indemnification), clauses 18.4–18.9 (Termination provisions), clause 19 (Confidentiality), clause 20 ( Data Protection and Privacy), clause 21 (Intellectual Property and Ownership), clauses 22.2–22.3 (Third-Party Goods and Services provisions), clause 23 (Dispute Resolution), clause 24.6 (Time Limitations), clause 24.12 (Non-Solicitation), clause 24.14 (Governing Law), clause 24.16 (Notices), and any other clauses which by their nature, context, or express terms are intended to survive.
24.14 Governing Law
This Agreement shall be governed, construed and enforced in accordance with the laws of the [State of X] and the Parties submit to the exclusive jurisdiction of the [State] courts.
24.15 No Third-Party Beneficiaries
This Agreement benefits only the Parties and does not confer rights on any third-party, nor shall any third-party have the right to rely on or enforce any part of this Agreement.
24.16 Notices
Where any notice, amendment, or similar communication is required, it must be marked for the attention of the Authorised Contact and may be sent by mail, overnight courier, or email to the address nominated in the relevant Associated Agreement. Such communications will be deemed delivered:
(i) on delivery, if delivered by hand;
(ii) five (5) Business Days after posting within Australia, or ten (10) Business Days after posting if posted to or from overseas, provided it is sent by registered or certified mail, postage prepaid;
(iii) one (1) Business Day following delivery by an overnight courier service;
(iv) immediately upon sending when sent by email, unless a delivery failure is received.
Each Party agrees to promptly update the other Party in writing of any changes to their contact information to ensure proper delivery of all notices.
All electronic documents and communications between the Parties will satisfy any writing requirement under this Agreement.
24.17 Independent Contractor
We are an independent contractor and not an employer, employee, partner, joint venture, agent, principal, affiliate, or any other form of representative of yours, and nothing in this Agreement shall be construed to create such a relationship.
24.18 Subcontractors
If we subcontract any portion of the Services, we will remain responsible for the quality of the work.
24.19 Joint and Several Liability
Where more than one Client enters into this Agreement, each Client is jointly and severally liable for all obligations and liabilities under this Agreement and any Associated Agreement.
24.20 Counterparts
This Agreement can be signed in multiple counterparts, electronically or otherwise, each of which will be considered an original, and together they will constitute one agreement.
In this Agreement and any Associated Agreement:
(i) references to a clause, schedule, annexure, or Party are to those within this Agreement;
(ii) a Party includes its executors, administrators, successors, and permitted assigns;
(iii) words in the singular include the plural and vice versa;
(iv) references to “$” or “dollars” are to Australian Dollars;
(v) if a word or phrase is defined, other grammatical forms have the same meaning;
(vi) headings are for convenience only and do not affect interpretation;
(vii) “includes” means “includes without limitation”;
(viii) references to legislation include any amendments, re-enactments, or replacements of that legislation and any subordinate legislation issued under it;
(ix) “person” includes an individual, corporation, partnership, trust, unincorporated body, government, or agency, whether or not a separate legal entity;
(x) if an act is required to be done on a day that is not a Business Day, it must be done on or by the next Business Day; and
(xi) no provision will be interpreted against a Party because that Party prepared it.
“Advice” means recommendations or guidance provided by the Service Provider in the course of delivering the Services. Advice is limited to IT operational, technical, and configuration matters directly related to the Services. Advice may be provided via email, service tickets, reports, or other documented communications. Verbal advice must be confirmed in writing to be relied upon under this Agreement. Advice is not legal, financial, or other professional advice.
“Agreement” means this Master Services Agreement, as varied, novated, ratified or replaced from time to time.
“Associated Agreement” means any managed services agreement, service agreement, statement of work, schedule, Order, or other document entered into under or in connection with this Agreement that describes the scope, technical, procedural, or commercial details of the Services provided by the Service Provider.
“Authorised Contact” means representatives of the Client designated as having the authority to provide directions or consent.
“Business Day” means any day other than a Saturday, Sunday, or any public holiday observed in [State].
For clarity, any reference to a “day” in this Agreement means a calendar day unless specifically stated to be a Business Day.
“Client” means [Client Name], also referred to as “you” or “your”, including its employees, contractors, agents, representatives, and any users authorised to access or use the Services.
“Confidential Information” means any non-public information disclosed by one Party (the “Discloser”) to the other Party (the “Receiver”) that is designated as confidential or should reasonably be understood to be confidential. This includes, but is not limited to business plans, financial data, customer and supplier lists, customer data, technical specifications, software code, research and development details, internal policies and documents, legal matters, and related information.
Confidential Information does not include information that has entered the public domain through no wrongful act or omission of the Receiver, was independently developed by the Receiver, or was lawfully and independently provided to the Receiver by a third-party not under an obligation of confidentiality.
Confidential information also includes personal information. The Receiver shall treat personal information as Confidential Information and handle it in compliance with applicable privacy laws, including obligations to prevent unauthorised access, use, or disclosure.
“Data Breach” means any actual or suspected unauthorised access to, interference with, disclosure, loss, alteration, or destruction of data, systems, networks, or personal information, whether accidental or intentional, that compromises, or could reasonably be expected to compromise, the confidentiality, integrity, or availability of such information or systems, and which may give rise to notification or other obligations under applicable data-protection or privacy laws.
“Deliverables” means any materials, products, software, documentation, reports, analyses, and other work products developed or provided by the Service Provider pursuant to this Agreement and any Associated Agreement.
“Device” means all devices, peripherals, and computer processing units, including laptops, computers, smartphones, tablets, and other mobile devices, that are connected to the Environment.
“Discloser” means the Party disclosing Confidential Information.
“Due Date” means the date by which payment for invoices must be received by the Service Provider.
“Effective Date” means the latest date of the signatures of the Parties on this Agreement.
“Environment” means the portion of any computer network, system, peripheral, or device that the Service Provider maintains, monitors, or operates for the Client.
“EULA” means end-user licence agreements, terms of service, customer agreements, subscription terms, or other similar third-party terms established between the licensor and the Client.
“Fees” means all charges, rates, or other amounts payable by the Client for the Services and any Associated Agreements, including but not limited to:
(i) recurring service fees;
(ii) project or professional services fees;
(iii) one-time charges;
(iv) setup or onboarding costs;
(v) hardware or software procured on your behalf;
(vi) charges for third-party Services where we facilitate purchase or billing;
(vii) travel, out-of-scope services, and additional time-based fees;
(viii) reimbursable expenses incurred in accordance with this Agreement or any Associated Agreement, together with any reasonable additional costs or charges arising from your acts or omissions (including, for example, storage, handling, or cancellation costs).
Fees exclude taxes unless expressly stated otherwise. Fees are set out in this Agreement and in Associated Agreements.
“Goods” means any tangible items supplied or sourced by the Service Provider, including but not limited to computer hardware, software, and any related or ancillary items provided in connection with these products, including third-party products. Goods do not include labour, configuration, or installation services, which are classified as Services.
“Intellectual Property” means all intellectual property rights, including but not limited to patents, trademarks, service marks, trade names, copyrights, moral rights, trade secrets, know-how, confidential information, proprietary processes, designs, databases, database rights, inventions, and any other proprietary rights or forms of intellectual property, whether registered or unregistered, and all applications for registration thereof, which may now or in the future subsist.
“Order” means any order form, purchase order, approved Quote or proposal, requested by the Client for Goods or Services from the Service Provider in any form.
“Party/Parties” means the entities that have entered into this Agreement. A reference to a Party includes that Party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee.
“Personnel” means all employees and contractors, consultants, suppliers, agents and subcontractors of either Party.
“PMSI” means a Purchase Money Security Interest as defined in the PPSA.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
“Quote” means a written offer issued by the Service Provider describing proposed Services, Fees, or other charges, which is not binding unless and until accepted by the Client and converted into an Order.
“Receiver” means the Party receiving Confidential Information.
“Residuals” means information in non-tangible form retained in the unaided memory of persons who have had access to the Client’s information, including ideas, concepts, know-how, skills, or techniques.
“Security Interest” has the same meaning given in the PPSA.
“Service Provider” means Perigon One Pty Ltd, also referred to as “we,” “us,” or “our”.
“Services” means all services provided by the Service Provider to the Client, including but not limited to consulting, support, labour, system configuration, installation, software licenses, and any third-party Services procured or managed by the Service Provider, together with any Goods sold or resold as part of service delivery.
“Software Agents” means software components installed within the Environment that facilitate monitoring, diagnosing, manipulating, communicating, retrieving information from, and otherwise accessing the Environment.
“Termination Fee” means the amount payable by the Client to the Service Provider if the Client terminates this Agreement or any Associated Agreement without cause prior to its expiration date, or if the Service Provider terminates this Agreement or any Associated Agreement for cause.
