Interpretation

In this Agreement and in any General Terms and Conditions, Rate Schedule, Quote, Proposal, SOW and Scope of Work, Order, Plan contract, or other arrangement in connection with the supply Services by the Supplier, except where the context otherwise dictates, reference to:

• A party includes party’s successor in title, permitted substitute, permitted assign, executor or administrator of that party;
• A person includes a natural person, a body corporate, a joint venture, partnership, and any other type of entity;
• A clause, section, paragraph, schedule, attachment or annexure is to a clause, section or paragraph of, or schedule, attachment or annexure to, this Agreement, and a reference to this Master Service Agreement includes any schedule, attachment or annexure, Quote, Proposal, Order, Plan contract;

The expressions “includes” and “including”, “for example” and similar expressions do not limit the scope of the right, obligation or concept referred to;

Words in the singular include the plural and vice versa and a word, which suggests one gender, includes the other genders;

If a word or phrase is defined, other grammatical forms of that word or phrase have corresponding meanings;

Monetary references are to Australian currency, unless expressly stated otherwise;

Headings are for convenience and do not affect interpretation;

Any reference to a provision of a statute, regulation, proclamation, ordinance or by law includes reference to that provision as amended, consolidated or replaced regardless of whether that became law before or after this Agreement;

No provision will be construed adversely to a party solely on the basis that the party was responsible for the preparation of that provision;

Unless otherwise agreed in a Work Order/purchase order or accepted quote or Statement/Scope of Work, in the event of any conflict between the documents comprising the Agreement, the conflict will be resolved in the following order of precedence:

• If the customer is contracted through a Telstra contract (‘Telstra Customer Contract’) and the Supplier is working in a Telstra partner capacity and Services are provided as a Telstra Partner, then such Services are covered by the relevant Telstra agreements /documents/terms and conditions between customer and Telstra including but not limited to:
• Telstra ‘scope of work’ SOW
• Telstra Agreements (including but not limited to IAAS, Professional Services Module, TOSA, TPSA, TDA) that forms part of the Telstra Customer Contract.
• Telstra Customer terms/agreement or documents along with their customer terms.

the accepted quote /‘scope of work’ SOW, including any special conditions, provided however that no special condition in an Order Form will be taken to override this Agreement (or the General Terms and Conditions, if applicable), unless the provision being overridden is expressly and specifically identified;

the Service /Rate Schedule and every Quote, Proposal, Order, Plan contract (or Quotation

in the case of Infrastructure Resale Services only);

this Agreement;

The Supplier’s General Terms and Conditions (by agreeing to this contract you agree to and accept the Supplier’s General Terms and Conditions provided that no special condition or a clause in this Agreement has been agreed to in this Agreement and will override the Supplier’s General Terms and Conditions (or the General Terms and Conditions for the Supply of Goods, if applicable).

Capitalised terms used in this Agreement and in the Supplier’s General Terms and Conditions, the Rate Schedule, Quote, Proposal, Statement/Scope of Work, Order, Plan contract, or other arrangement in connection with the supply of Services by the Supplier have the following meaning unless otherwise defined:
Acceptable Use Policy means the Acceptable Use Policy provided by Telstra or service provider.
After Hours means the Acceptable Use Policy provided by Telstra or service provider.
After Hours means any time outside of the ‘Support Coverage Hours’ as agreed in the Statement/Scope of Work. This will vary depending on your selected agreement plan option;
Agreement means this Master Services Agreement;
Business Hours means the days and times defined in ‘Support Coverage Hours’ in the ‘Agreement Summary’;
Network Services means the network services specified by Telstra;
Period or Term means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;
Personal Informationhas the meaning set out in the Privacy Act 1988 (Cth);
Plan or Agreement means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule;
Plan Schedule means the key terms applicable to Plans as set, and as may be varied by Us, from time to time with written notice to You;
Products means any physical or virtual hardware or software provided / supplied / resold by Exigo Tech or its partners.
Premises means premises notified in writing by Customer to Supplier in the relevant Proposal or Statement/Scope of Work;
Professional Services means the professional services specified in the Statement/Scope of Work.
Proposal means the Exigo Tech Managed Services Proposal.
Public Holidays means any day that a public holiday is throughout New South Wales other than a bank holiday;Quote means any quote provided to You by Us;
Rates means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Agreement Summary, Investment Summary, Rates Schedule, a Plan, Plan Schedule, Quote, Proposal, contract or arrangement entered into by Us and You or in this Agreement, and includes any monies payable to Us on a quantum merit basis for any work it has done;
Rate Schedule means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;
Reasonable Assistance Limits has the meaning set out in clause 12(b) of Exigo Tech General Terms and Conditions;
Related Body Corporate has the meaning set out in the Corporations Act;
Return/Cancellation Fee means a fee charged pursuant to clause 6(e) of Exigo Tech General Terms and Conditions; as set by Us from time to time;
Security Services means any hardware and software-based security specified and agreed by customer per their need in the proposal document.
Service request means a request for service such as additions (adds), moves, changes and technical assistance;
Services means any services provided by Us including Goods, Work, advice and recommendations, but excluding Supplier Equipment;
Software includes software and any installation, update, associated software and any services provided in connection with any of these things;
Statement/Scope of Work means a statement of work in relation to the services agreed between the parties.
Supplier Equipment means the equipment owned by the Supplier or its sub-contractor and provided to the Customer from time to time in conjunction with provision of the Services, where specified in the Agreement.
Third Party means any legal person or entity that is not party to this Agreement.
Work means anything We may do, provide, customise, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items;

1. Work Order means a request for Services executed by the parties as per accepted quote or Statement/Scope of Work;
2. Headings and words in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
3. A reference to time is to Sydney, Australia time unless otherwise denoted or specified;
4. A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
5. A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;
6. A recital, schedule, annexure or description of the parties forms part of these Conditions;
7. A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
8. A reference to includes means includes without limitation;
9. A reference to will imports a condition not a warranty; and
10. A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.
11. The Customer may request the supply of Services directly from the Supplier or as a Telstra partner for itself or a Related Body Corporate by executing the Proposal.
    The agreement between the Supplier and the Customer comprises of this Agreement, the Proposal, the General Terms and Conditions, the Rate Schedule, Quote, Statement/Scope of Work, Order, Plan contract, or other document or arrangement in connection with the supply of Services by the Supplier.

1. Where the Customer issues a purchase order or accepted a quote or scope of work with the Supplier in connection with the Proposal:
   1. • the purchase order/Quote acceptance or agreed Statement/Scope of Work must be referenced; and
      • subject to section 3(d)(i), the Agreement will be deemed executed by the Customer when the Customer has executed the Proposal;

The Supplier’s obligations under the Agreement may be performed by the Supplier or a third party appointed by the Supplier, in which case the Supplier remains responsible for ensuring that the third party complies with the Agreement.
The Customer’s obligations are to:

1. 1. • comply with our reasonable and lawful directions in relation to the Services:
      • provide a safe working environment for Our personnel:
      • comply with all laws, regulations, policies and guidelines (including any acceptable use policy that We inform you of) applicable to the Services;
      • ensure that any incumbent provider who is transitioning the Services to Us makes available the information, resources and facilities required by Us to provide the Services; and
      • maintain regular and complete backups of all of Your data (unless You have contracted with Us or Our contractor to do the same).
      • undertake such tasks assigned to it by the Supplier and provide timely information and direction to the Supplier upon request to enable the Supplier to fulfil its obligations under the Agreement;
      • ensure that, where Services are provided to a Related Body Corporate of the Customer, the Related Body Corporate complies with the Agreement. Any failure by a Related Body Corporate of the Customer to observe the obligations (including payment) of the Customer under the Agreement will be deemed to be a breach of the Agreement by the Customer for which the Customer will be responsible. The Customer indemnifies the Supplier for all loss and damage incurred as a result of a failure of a Related Body Corporate of the Customer to observe the obligations (including payment) of the Customer under the Agreement; and
      • comply with the Acceptable Use Policy as it applies to Network Services.
      • Supplier will not be responsible for any failure, default or delay to the extent caused by Your failure to perform your obligations under this clause. Any additional costs incurred by the Supplier as a result of the failure or delay of the Customer, its Related Body Corporate, or a subcontractor of the Customer or of a Customer’s Related Body Corporate affecting the Supplier in performing the Services, will be charged to the Customer.

Sub-section 3(e) does not apply to other Services where specified in the applicable Agreement which include third party terms and conditions, including licence terms for Software or vendor installation and/or maintenance services sold with the Product (“Third Party Terms”). Third Party Terms are entered into by the applicable third-party licensor of the Software or the manufacturer of the Product, and the Customer.
The Supplier may require that the Customer completes the Supplier’s Credit Application and is satisfied as to the continued credit worthiness of the Customer prior to supplying Services under an Agreement. The Customer authorises the Supplier to make enquiries from time to time (including disclosing all relevant information relating to the circumstances, nature and/or purpose of the enquiry) with the trade referees named in the Credit Application Form or with any other organisations that the Supplier considers appropriate to assess the Customer’s credit worthiness.

1. This Agreement commences on the Date of Agreement Commencement specified in the Proposal and any unfulfilled Statement/Scope of Work and continues in full force and effect for the duration of the Agreement Term specified in the Proposal, unless terminated earlier in accordance with section 14 (“Term”).
2. The term of a Statement/Scope of Work will be set forth in the applicable Statement/Scope of Work.
3. If the term of a Statement/Scope of Work is not specified in the Statement/Scope of Work, when the Minimum Service Period expires

1. We will invoice you:
   1. • in accordance with any payment schedule specified in the accepted quote/Statement/Scope of Work or product terms;
      • otherwise:
        monthly in advance; or monthly in arrears depending on the Supplier’s Services.

You must pay each invoice in full:

1. 1. • by the due date specified in the invoice; or
      • if no due date is specified, within 14 days of the invoice date.
      • Late invoicing does not affect Our right to payment or your obligation to pay.
      • If a payment is overdue, in addition to our other rights:
        • We may charge interest on the overdue amount at the Default Rate, calculated daily;
        • We may withhold providing Services under any Agreement; and
        • You must indemnify us against all costs and expenses (including legal expenses on a solicitor / client basis) incurred by us in attempting to recover the overdue amount.

   If:

   1. 1. • You fail to pay any amount (whether in whole or part) payable in respect of any hardware and/or loan equipment by the time required for payment;
         • you become insolvent (as that term is defined in the Corporations Act 2001); or
         • the Agreement between us is terminated, or becomes terminable at our option:
           • We may, without notice to you, enter at any reasonable time any premises where hardware and/or loan equipment is located (or believed by us to be located) and take possession of that hardware and/or loan equipment not paid for and any other hardware and/or loan equipment to the value of the amount owing.
           • Our permission to enter Your premises for that purpose is irrevocable.
           • We are not liable to You in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by you as a result of any action taken by Us under this clause, except to the extent that loss is directly and solely caused by Our negligent action.

   Application of funds: All payments of the sum due made by You to Us will be applied as follows:

   1. 1. • First in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us;
         • Secondly, in or towards payment of any interest due or payable hereunder, and
         • Thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.

   Other remedies:

   1. • We may exercise any of Our rights and remedies under this Agreement including taking legal action against You for the recovery of any moneys due to Us, notwithstanding We may have exercised other rights under this Agreement. You are responsible for all third party charges incurred as a result of Your use of the Services (for example, telecommunications carriage fees) unless we specify otherwise in writing.
      • Where we specify that our fees include third party charges, we may increase our fees by written notice to you if there is an increase in third party charges.
   1. Subject to section 9, the Supplier warrants that:
      1. • the Services will be provided with all reasonable care and skill of a competent provider of similar ICT services. The Customer must provide prompt notice in writing to the Supplier of any failure by the Supplier to comply with this warranty to enable corrective action to be taken by the Supplier; and
         • the Services will comply with any specifications set out in the Agreement.

   Subject to section 9, to the extent it is legally able to do so, the Supplier will make available to the Customer any standard manufacturer warranties for Services where the Services are Goods.

   Where the Services are Goods, the Customer acknowledges that any Services provided to the Customer by the Supplier are provided, to the extent permissible at law, on an ‘as-is’ basis.
   Without limiting section 9, the Supplier does not warrant:

   • that Services will be free from error, interruption or external intrusion;
   • the results that may be obtained from the use of the Services or the accuracy, reliability or content of any information contained in or provided through the Services; or
   • the quality, content or accuracy associated with any Services or information provided by a third party received by the Customer through or as a result of the use of the Services.

   Subject to section 9(a), the Supplier is not responsible for:

   • any defect in the Services arising from any drawing, design or specification supplied by the Customer;
   • any defect in the Services arising from fair wear and tear; wilful damage, negligence, or abnormal working conditions imposed by the Customer, failure by the Customer or an end user to follow the Supplier’s or the manufacturer’s instructions (whether oral or in writing), misuse, alteration or repair of the Services by the Customer or an end sser without the Supplier’s or the manufacturer’s approval;
   • any parts, materials or equipment in respect of which the Customer is entitled to the benefit of any warranty or guarantee given by the manufacturer;
   • the performance of any Software, or the equipment, products, services or information provided by a third party other than a subcontractor of the Supplier, and used by the Supplier in providing a Service;
   • where the Services are Goods, any defect resulting from any unauthorised modifications or customisation of the Services provided by the Supplier;
   • where the Services are Goods, incorrect or unauthorised use of the Services that is not in accordance with the corresponding operating manuals; or
   • content or use of any data transferred either to or from the Customer or stored by the Customer or any end users via the Services.

   The Customer warrants:

   • that it has the right to use and to permit the Supplier to use all software, material, data or documents provided by or on behalf of the Customer to the Supplier for the provision of Services, and that the caching of Customer data, if required to perform Services, will not infringe the Intellectual Property Rights of the Customer or any third party;
   • that neither the Customer nor its officers, employees or contractors have relied on any representation, promise or undertaking made by or on behalf of the Supplier which is not expressly set out in this Agreement.

   The Customer acknowledges and agrees that the Supplier exercises no control over and accepts no responsibility or liability for the content of the information (including but not limited to the Customer Data) passing through the Supplier’s host computers, network hubs and points of presence or the Internet.

   Each party represents and warrants and represents to the other that:

   • it will perform its obligations so as to avoid hindering the performance of the other party;
   • it will act in a collaborative manner, reasonably and in good faith with respect to matters that arise out of, or in connection with, this Agreement;
   • it will comply with all laws and regulations applicable to it; and
   • the persons signing on its behalf have full authority and right to enter into this Agreement and each other agreement.
   1. During the term of this Agreement, and for a period of one (1) year following the termination or expiration of this Agreement for any reason, the Customer will not, directly or indirectly, solicit or employ any person who is:
      1. • employed by the Supplier;
         • an employee of an associate, contractor or sub-contractor of the Supplier;
         • an employee of an entity that the Supplier is contracting or sub-contracting for.

   While the restraint in this clause are considered by the parties to be reasonable in all the circumstances, if any part of the restraint is held to be void as going beyond what is reasonable in all the circumstances for the protection of the interests of the Supplier, but would be valid if part of the text were deleted or the periods reduced or the range of activities reduced in scope, the restraint will apply with such modifications as may be necessary to make it valid and effective.
   In case any one or more of these provisions is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected or impaired in any way.

   1. Where the Supplier provides the Supplier Equipment:
      1. • title to Supplier Equipment remains with the Supplier and the Customer must not lease, transfer, sell or grant any security interest over the Supplier Equipment;
         • risk and responsibility for the safe keeping of the Supplier Equipment transfers to the Customer upon delivery of the Supplier Equipment to the Customer’s Premises and remains with the Customer until the Supplier has regained possession of the Supplier Equipment;

   the Customer:

   1. 1. • is responsible for obtaining any consents required to install the Supplier Equipment at the Customer’s Premises;
         • must ensure that Customer’s public liability insurance policy extends cover to the Supplier Equipment against loss or damage whilst at the Customer’s Premises;
         • must take all necessary action to prevent the Supplier’s Equipment being interfered with or damaged and return it to the Supplier upon the Supplier’s request; and
         • must permit the Supplier to access the Supplier Equipment at the Customer’s Premises upon reasonable request, provided that the Supplier complies with the Customer’s security policies notified in writing to the Supplier.

   the Supplier may:

   1. • consult with the Customer in respect to the installation of the Supplier Equipment, provided that the Supplier retains the right to make all decisions in relation to the routing of cables and the positioning of the Supplier Equipment; and
      • in its sole discretion and upon prior written notice to the Customer, change, modify or remove the Supplier Equipment, provided that the Supplier remains responsible for performing the Services in accordance with the Agreement.
      • To the extent permitted by applicable law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this Agreement.
      • Where the applicable law prescribes a remedy or liability for breach of a statutory guarantee or warranty for the supply of Services, the Supplier’s liability is limited to the prescribed remedy or liability.
      Without limiting section 9(b), if a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), nothing in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits the Supplier to limit its liability, then the Supplier’s liability will be limited to:
      1. • in the case of Services, the cost of supplying the Services again or payment of the cost of having the Services supplied again; and
         • in the case of Goods, the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired, or payment of the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired.

         Subject to section 9(e), nothing in this Agreement operates to exclude or restrict a party’s liability for:

         • death or personal injury (including sickness) for which that party is legally liable;
         • breach of confidentiality or privacy; or
         • fraud or fraudulent misrepresentation.

         In no circumstances will a party be liable for loss of revenue; loss of profits or anticipated savings; loss of business or goodwill; loss or corruption of data; or for any indirect, special or consequential loss or damage, however caused, even if the other party was advised of or aware of the possibility for such liability.
         Subject to section 9(g), the liability of a party in contract, tort, breach of statute, or other legal theory arising out of or in relation to the provision of Services under an Agreement, is limited in aggregate to:

         • where Infrastructure Resale Services or Professional Services are provided, an amount equal to the charges in respect of the Infrastructure Resale Services or Professional Services (as applicable); and
         • where Services other than Infrastructure Resale Services or Professional Services are provided, an amount equal to the charges paid or payable by the Customer to the Supplier under the Agreement during the twelve (12) month period immediately preceding the claim.

         The liability of a party in contract, tort, breach of statute, or other legal theory for damage to real property and/or tangible personal property arising out of or in relation to the provision of Services under an Agreement, is limited in aggregate to, an amount equal to the greater of:

         • the charges received by the Supplier under the Agreement during the twelve (12) month period immediately preceding the claim; and
         • $1 million.

         Nothing in this section 9 affects the Customer’s obligation to make payment under section 5.

         1. To the extent permitted by applicable law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this Agreement.
         2. Where the applicable law prescribes a remedy or liability for breach of a statutory guarantee or warranty for the supply of Services and products, the Supplier’s liability is limited to the prescribed remedy or liability.
         3. Without limiting section 10(b), if a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law set out in Schedule 2 to the

         Competition and Consumer Act 2010

         1. (Cth), nothing in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits the Supplier to limit its liability, then the Supplier’s liability will be limited to:
            1. • in the case of Services, the cost of supplying the Services again or payment of the cost of having the Services supplied again; and
               • in the case of Goods, the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired, or payment of the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired.

         Subject to section 10(e), nothing in this Agreement operates to exclude or restrict a party’s liability for:

         1. 1. • death or personal injury (including sickness) for which that party is legally liable;
               • breach of confidentiality or privacy; or
               • fraud or fraudulent misrepresentation.

         In no circumstances will a party be liable for loss of revenue; loss of profits or anticipated savings; loss of business or goodwill; loss or corruption of data; or for any indirect, special or consequential loss or damage, however caused, even if the other party was advised of or aware of the possibility for such liability.
         Subject to section 10(g), the liability of a party in contract, tort, breach of statute, or other legal theory arising out of or in relation to the provision of Services under an Agreement, is limited in aggregate to:

         1. 1. • where Infrastructure Resale Services or Professional Services are provided, an amount equal to the Charges in respect of the Infrastructure Resale Services or Professional Services (as applicable); and
               • where Services other than Infrastructure Resale Services or Professional Services are provided, an amount equal to the Charges paid or payable by the Customer to the Supplier under the Agreement during the twelve (12) month period immediately preceding the claim.

         The liability of a party in contract, tort, breach of statute, or other legal theory for damage to real property and/or tangible personal property arising out of or in relation to the provision of Services under an Agreement, is limited in aggregate to, an amount equal to the lower of:

         1. 1. • the charges received by the Supplier under the Agreement during the twelve (12) month period immediately preceding the claim; or
               • $1 million.

         Nothing in this section 10 affects the Customer’s obligation to make payment under section 5.

         1. Nothing in this Agreement affects a party’s Intellectual Property Rights, which exist prior to parties first entering into an Agreement (“Pre-Existing IP”).
            Each party grants to the other party a non-exclusive, royalty free licence to use its Pre-Existing IP only to the extent necessary for the purpose of performing its obligations or exercising its rights under this Agreement.
         This licence is only granted for the term of the Agreement and will immediately come to an end if the Agreement expires or is terminated for any reason.
         1. Unless otherwise specified in writing, the Supplier exclusively owns all intellectual property rights in material, including software, that it designs, creates, modifies, supplies or licences, even if it was created or modified for or suggested by Customer.
            Each party hereby agrees not to infringe the Intellectual Property Rights of the other party, and except as expressly authorized under these terms and conditions, neither party may use, copy, adapt, translate or otherwise exploit the Intellectual Property Rights of the other party. Nothing in these terms and conditions affects the Intellectual Property Rights in any open source software. Intellectual Property Rights in all open source software is subject to the terms of the open source software licence under which it is provided.
            IP Claims:
            In the event a third party brings a claim against the Customer that a Deliverable provided by the Supplier under this Agreement infringes that party’s Intellectual Property Rights (“IP Claim”), then subject to 10(g), the Supplier will, as the Customer’s exclusive remedy, defend the Customer against any such IP Claim and indemnify the Customer from the resulting costs, damages and attorney’s fees that a court awards against the Customer to such third party or that are agreed to in settlement (approved in advance by the Supplier), provided the Customer:
            • promptly gives the Supplier written notice of the IP Claim;
            • gives the Supplier sole control of the defence and settlement of the IP Claim.

            The Supplier will have no liability for any IP Claim based on:

            • modifications to the Deliverable made by or on behalf of the Customer by anyone other than the Supplier without the Supplier’s approval;
            • the Supplier’s compliance with any directions or specifications provided by the Customer or a third party on the Customer’s behalf;
            • use of a Deliverable other than in accordance with the manufacturer’s specifications and applicable licence restrictions, or the use of a superseded version of a Deliverable should the IP Claim have been avoided by using the current version; or
            • use of the Deliverables in combination with equipment or software for a purpose or in a manner for which the Deliverables were not reasonably intended.

            If any portion of the Deliverable becomes, or in the Supplier’s opinion is likely to become, the subject of an IP Claim, then the Supplier shall, at its option and expense, (which to the extent permitted at law, will be the sole remedy of the Customer against the Supplier):

            • procure the right for the Customer to continue to use the Deliverable;
            • modify or replace the Deliverable to avoid continuing infringement; or
            • if neither of the alternatives in the preceding paragraphs is reasonably available, remove the infringing Deliverable and provide a refund of the Charges paid by the Customer in relation to the infringing Deliverable.

         Definitions

         “Confidential Information” means the following:
         • all information that is treated or designated by the party disclosing any Confidential Information (“Discloser”) as confidential, which is not generally known to personnel outside that party, or which should be reasonably regarded in all the circumstances as confidential to that party, including without limitation, technical details regarding the party’s business, trade secrets, technical and business know-how, information relating to the party’s staff, business dealings, contracts, customers, and marketing, sales and business plans, details of that party’s technical equipment including software and data for processing, financial data of the party and other sensitive corporate information;
         • forms part of all notes and other records prepared by the Interested Party and which are based on or incorporate information referred to in paragraph (a) above; and all copies of the information and those parts of the notes and other records referred to in paragraphs (a) and (b) above.
         “Confidential Information” does not include:
         • information that is in the public domain at the time of its disclosure to the party receiving any Confidential Information (“Recipient”) or that comes into the public domain after its disclosure otherwise than by reason of a breach of this agreement;
         • information that was already demonstrably known by the Recipient at the date of disclosure and was not received in confidence from the Discloser; or
         • information that is required to be disclosed as a matter of law;
         • information which the Discloser certifies in writing as not being Confidential Information;
         • information which the Recipient can prove was in its lawful possession prior to the Discloser providing such information; and
         • information received by the Recipient from a third party who has the lawful power to disclose such information to the Recipient and who is not making the disclosure as an agent of the Discloser or its Associates;
         “Discloser” means the party that discloses any Confidential Information to the Recipient;
         “Discussions” means any discussions relating to the Project or constituting advice in respect of it;
         • “Project” means any arm’s length business relationship (other than this Agreement) between the Parties or any agreement that would or could constitute the Parties as a partnership, association, joint venture or other co-operative entity, relating to the Services;
         • “Recipient” means the party receiving any Confidential Information from the Discloser;
         Third Party” means any legal person or entity that is not party to this agreement.

         Confidentiality

         In consideration of the Discloser making the Confidential Information available, the Recipient undertakes and agrees that on each occasion that:

         it will not use the Confidential Information for any purpose other than the Discussions and/or the Project and, without limitation of the foregoing, will not use any the Confidential Information to procure any commercial advantage over the Discloser;
         1. • it will not disclose any of the Confidential Information to any Third Party, other than
            • the Recipient’s directors, officers and/or employees if, and only if, that disclosure is necessarily required for any its directors, officers and/or employees to receive and consider the Confidential Information in the course of their duties to participate in or evaluate Discussions and/or the Project; and/or
            • any professional adviser and/or a contractor or Related Body Corporate, if necessary by the Supplier or its contractors/sub-contractors to perform its obligations under this Agreement and share such confidential information with its employees, officers, contractors (within Australia and outside Australia) any advisors who require such access to perform their duties the Discloser or its Related Body Corporate and the Recipient solely in connection with the contracted Services and approved purpose. All such above mentioned personnel and contractors of the Supplier will have been specifically informed of the existence of this Agreement and of the confidentiality of the information and must first have agreed to be bound by the terms of this Agreement.

         only use the Discloser’s Confidential Information for the Purpose or any other purposes expressly agreed in writing between the Disclosing Party and the Recipient;
         immediately notify the Discloser if the Recipient is required by law to disclose any of the Discloser’s Confidential Information and provide assistance as reasonably required by the Discloser if the Discloser wishes to defend or resist that requirement; and

         • it will not, without the prior written consent of the Discloser, disclose the fact that Discussions are taking place or have taken place to any Third Party, other than:
         • the Recipient’s directors, officers and/or employees;
         • professional advisers / contractor to the Recipient; and/or
         • a Related Body Corporate.

         Liability and Indemnity

         The Recipient indemnifies the Discloser in relation to any loss, costs, damages or expenses (including full legal expenses) that the Discloser may suffer or incur as a result, of breach under this Agreement to the limit of contractual value.

         The Recipient will not be liable to the Disclosing Party for any special or consequential loss or damage.

         Termination

         On termination of this Agreement:
         1. • the Recipient’s right to use the Confidential Information will cease;
              • return to the Discloser; or
              • destroy and notify the Discloser in writing of the destruction of all of the Discloser’s Confidential Information in its possession or control.

         The obligations of clause 11 will survive the termination or expiration of this Agreement for any reason.

         1. Each party must:
            1. • comply with the Privacy Act 1988 (Cth) (‘Privacy Act’)in relation to any Personal Information that is collected, used or disclosed under this Agreement, and, where a party is not bound to comply with the Privacy Act, that party must comply with the Privacy Act as if it was bound to do so;
               • use or disclose Personal Information only for the purposes of performing its obligations under this Agreement;
               • cooperate with the other party to resolve all requests, complaints or inquiries made under the Privacy Act in relation to Personal Information that is collected, used or disclosed under this Agreement; and
               • not do anything, or omit to do anything, with Personal Information that would cause the other party to be in breach of the Privacy Act.

         The Customer acknowledges and agrees that the Supplier may collect and manage Personal Information as contemplated by, and in accordance with, the Privacy Policy, including by disclosing Personal Information to entities located outside Australia, such as its Related Bodies Corporate and subcontractors.
         Where the Customer provides any Personal Information to the Supplier under this Agreement, the Customer warrants that such Personal Information has been collected, and disclosures have been made, in accordance with all Privacy Laws, including by making those persons from whom the Personal Information was collected (including end users) aware of the matters required by the Privacy Laws in relation to the disclosure to, and use by, the Supplier of that Personal Information.
         The Customer must ensure that any person who receives any Services from the Supplier pursuant to this Agreement, or whose information is disclosed to the Supplier in connection with this Agreement, consents to the Supplier using and disclosing their Personal Information in accordance with the Privacy Policy.
         Each party (“Indemnifying Party”) indemnifies the other from and against any loss, liability, fines, damages, costs and expenses incurred by the other party, its Related Bodies Corporate and its subcontractors arising out of, or in connection with, any breach of this section 12 by the Indemnifying Party.

         1. EIf specified in a Service Schedule and/ Work Order/purchase order or accepted quote the Supplier will provide security services as part of the Services (“Security Services”). The Security Services will comprise the security measures specified in the applicable Service Schedule and/or Order Form/purchase order or accepted quote.

         Despite section 13(a), the Customer acknowledges and agrees that:

         1. • the Supplier does not make any warranty or representation that the Security Services will be sufficient to protect the Customer data and/or the Customer’s network;
            • security incidents (such as denial of service, malicious codes and any other form cyber-attack) may occur despite the provision of the Security Services, and the Supplier will not be liable for loss or damage caused by such security incidents;
            • the Customer is solely responsible for:
              • the design of the solutions (including selecting the Security Services) to be implemented for the protection of the Customer data and/or the Customer’s network; and
              • deciding whether to implement any advice or recommendation provided by the Supplier, or to rely on any security-related opinion, conclusion or other information provided by the Supplier; and
            • the Supplier is not responsible for any misuse or unauthorised modification, loss, transmission or disclosure of, unauthorised access to, or interference with, the Customer data or the Customer’s network, which results (directly or indirectly) from:
              • a security breach or incident occurring despite the implementation of the Security Services;
              • failures by the Customer to take reasonable steps to prevent unauthorised access to the Services, Customer data and/or Customer’s network (for example, by disclosing the security credentials (such as user names and passwords) related to the Services (otherwise than as required by such Services)); or
              • events beyond the reasonable control of the Supplier (including security incidents affecting hardware, software or services not controlled by the Supplier).
         1. The Supplier may terminate or suspend performance of this Agreement and/or a Work Order with immediate effect, if the Customer:
            1. • breaches the Agreement or the Work Order and fails to remedy the breach within 14 days after receiving a notice detailing the breach and requiring that it be cured
               • suffers an Insolvency Event;
               • has not paid an undisputed invoice within 30 days of the due date; or
               • does not hold the necessary licences or authorisations required by law to provide or use the Services,
               • ceases, or threatens to cease, carrying on business;
               • at the party’s reasonable belief, has used a service for unauthorised, criminal or unlawful activity;
               • due to a material breach.

         Where the Agreement or a Work Order is terminated due to the Customer’s material breach, the Customer must pay all amounts due for the period up to and including the effective date of termination and all Charges for the remainder of the applicable Minimum Service Period.

         • The termination of a Work Order will not give rise to a right to terminate the Agreement as a whole.

          

         • Unless otherwise agreed in writing, termination of:
           • • Telstra agreement or this Agreement does not automatically terminate a Statement/Scope of Work; and
             • one agreement has no effect on other agreements.

         Upon termination or expiry of this Agreement, the Supplier may at its discretion:

         • • • repossess any of its property in the Customer’s possession, custody or control;
             • provide the Customer with an invoice for all unpaid fees and expenses and any costs incurred by us as a result of termination; and
             • pursue any additional or alternative remedies provided by law.

         Termination of the Agreement is without prejudice to any right of action or remedy of a party which has accrued before termination or which may accrue at or after termination.

         The Supplier may suspend at any time on written notice with immediate effect, all or any part of the Services, if:

         • the Customer is in breach of a material provision of this Agreement, including but not limited to any failure to pay any charges when due, in which case the Supplier will give five Business Days’ written notice;
         • the Supplier needs to carry out any emergency maintenance or repairs to any part of the network or other infrastructure used to provide the Services;

         If the Customer terminates Services prior to the expiry of this Agreement, then the Customer must pay the Supplier within 14 days of invoice, the equivalent of the Monthly Managed Service Fee multiplied by the number of months remaining in the agreed Work Order/purchase order or accepted quote or Statement/Scope of Work.

         Neither party will be liable for any delay or failure to perform its obligations pursuant to an Agreement where such delay is caused on account of Telstra or by a Force Majeure Event, provided that the performance of the affected party’s obligations will be suspended only for as long as the Force Majeure Event continues to prevent performance, and the affected party uses reasonable endeavours to mitigate the impact of the Force Majeure Event as soon as possible. 

         The Supplier will comply with local laws generally applicable to Services. The Customer is responsible for determining the legal requirements applicable to the Customer’s business, including those relating to the Services that the Supplier provides to the Customer under this Agreement. Each party will comply with all applicable export and import laws.

         The Customer acknowledges that the Agreement and the provision of the Services hereunder is subject to the applicable laws and regulations in the country in which the Services are provided. The Supplier reserves the right to vary the provisions of the Agreement to ensure compliance with such laws and regulations, upon Notice to the Customer specifying the applicable law or regulation and the reason for the variation.

         The Supplier will maintain the following insurance policies for the term of this Master Service Agreement and will provide certificates of currency upon the Customer’s reasonable request:

         public and product liability in the amount of $10 million in any one claim and in the annual Aggregate for products liability;

         professional indemnity in the amount of $10 million in any one claim and $20 million in the annual aggregate; and

         worker’s compensation in accordance with statutory requirements.

         The laws in force in New South Wales, Australia govern this Agreement, and each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia, and any courts competent to hear appeals from those courts.

         Any dispute or difference arising in connection with this agreement will be submitted to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules.

         Otherwise, legal proceedings relating to this agreement or any dispute about it must be brought in the courts of New South Wales, Australia.

         Both parties must continue to perform their obligations under the Agreement despite the existence of a dispute, unless the dispute relates to non-payment of a Charge.

         No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Agreement, as applicable. 

         If any terms and conditions of this Agreement are invalid or unenforceable, the remaining terms and conditions of this Agreement remain in full force and effect.

         Sections 6, 7, 9, 11, 12, 19 (and any other provisions which by their nature are intended to survive termination or expiry) will survive termination or expiry of this Agreement for any reason.

         Neither party may assign, novate or otherwise transfer this Agreement to a third party without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Any such attempted assignment, novation or transfer will be null and void.

         All notices, requests, claims, demands and consents must be given in writing in the English language and must be signed by a person duly authorised to provide such notice (“Notice”). Notices permitted or required to be given hereunder will be deemed sufficient if given by registered, certified or ordinary pre-paid mail, private courier service, or electronic means addressed to the respective addressees of the parties specified in the Work Order or as otherwise notified in writing by the respective party from time to time. The parties agree that the use of electronic transmissions such as facsimile and email is acceptable as a signed writing. Notice will be deemed to have been given upon receipt.

         The Supplier provides the Services as an independent contractor. No partnership, agency or joint venture is created between the parties, nor does either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other, unless otherwise expressly agreed in writing in an Agreement. Each party is free to enter into similar agreements with others to develop, acquire, or provide competitive products and services.

         This Agreement may be executed in any number of counterparts by the parties, each of when executed will be deemed to be an original and all of which taken together will constitute one and the same instrument.

         Means any tax law applicable to this MSA, including A New Tax System (Goods and Services Tax) Act 1999 (Cth) (Aus)

         This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter and supersedes any prior negotiations, agreement, understanding or arrangement between the parties whether oral or in writing (including, but not limited to, any terms and conditions set out in any purchase order or other documentation issued by the Customer). For the avoidance of doubt, any terms issued by the Customer (including the pre-printed terms and conditions of Customer’s purchase order, if any) which conflict with the terms of this Master Agreement, a Service Schedule or an Work Order, are null and void and are expressly excluded