Master Services Agreement for Australia and New Zealand

This Agreement sets out the terms and conditions for the Product and any Services that we provide you with in Australia or New Zealand.

You agree to the terms of this Agreement when you sign a Subscription Agreement with us that references or incorporates this Agreement. This Agreement lasts as long as any Subscription Agreement is in force. You can terminate a Subscription Agreement or this Agreement by following the steps in clause 11.

We may change this Agreement, the Services, the Product or Fees from time to time in accordance with this Agreement. Clause 4 describes how we will notify you about changes, and what rights you have if we make changes.

1. Structure and term of this Agreement

1.1 Term of Agreement

This Agreement begins when both parties sign the first Subscription Agreement and continues until either party terminates the Agreement in accordance with clause 11.

1.2 Subscription Agreements

(a) You may request Services from us at any time. If we agree to provide the Services, we will send you a draft Subscription Agreement that outlines:

(i) the Services we will provide;

(ii) the Fees you need to pay;

(iii) the start date of the Subscription Agreement and the period it will remain in effect, including (where applicable) any Minimum Term;

(iv) any minimum spend or quantity obligations you have; and

(v) any other terms and conditions that apply to you or to the Users of the Product.

You can accept the draft Subscription Agreement by signing and returning it to us. We will not supply Services to you without a signed Subscription Agreement.

(b) Either party may request a change to a Subscription Agreement by submitting a change request in writing to the other party. The change is only valid if both parties sign a new Subscription Agreement (unless clause 4 allows the change).

1.3 Term of Subscription Agreement

(a) Each Subscription Agreement starts on the date specified in the Subscription Agreement and continues for the period specified in the Subscription Agreement.

(b) Unless otherwise agreed in writing by the parties, after the end of the initial period or Minimum Term, the Subscription Agreement will continue in force, unless terminated in accordance with clause 11.

1.4 Order of priority

If any of these documents conflict with each other, the order of priority is as follows (from highest to lowest):

(a) the terms of a Subscription Agreement;

(b) the terms of this Agreement; and

(e) the terms of our Privacy Policy, which is incorporated as part of this Agreement.

2. Our delivery of Products and Services

2.1 Provision of Services

If a Subscription Agreement requires us to provide Services, we will:

(a) supply the Services according to the terms of the Subscription Agreement and this Agreement;

(b) use due care, skill and diligence and follow good business practice for the industry;

(d) comply with Applicable Laws when performing our obligations under this Agreement and any applicable Subscription Agreement; and

(e) be responsible for the performance of the Services, even if we subcontract some or all of them to a Third Party or an Affiliate.

2.2 Subscription Services

If a Subscription Agreement requires us to provide Subscription Services, we will:

(a) grant you and a specified number of Users a licence to access and use the Product in accordance with clause 7.2(b) for the period specified in the relevant Subscription Agreement;

(b) use reasonable commercial endeavours to ensure that the Product meets any requirements set out in the relevant Subscription Agreement and does not introduce any Harmful Code into any of your systems;

(c) provide you with Updates and New Releases that are generally available to other customers. We may automatically install, or require you to install, certain Updates or New Releases, including those that are critical to the functionality or security of the Product. You may not be able to access, use or continue to use the Product unless those Updates and New Releases are installed; and

(d) perform Scheduled Maintenance on the Product. We will try to minimise disruption to you if we carry out Scheduled Maintenance. We will give you at least 7 days written notice of any Scheduled Maintenance that may cause disruption to you. However, we may do emergency repairs, or make modifications or additions to the Product without notifying you if the changes are business critical, required because of reasons outside of our reasonable control, or necessary to protect the integrity or security of the Product.

2.3 Service Levels

We will use reasonable commercial endeavours to meet the Service Levels.

2.4 Suspension of Services

If we believe that the security of the Product, your Customer Data or any critical Product function, service or facility is at risk, we can suspend:

(a) you and your Users’ access to and/or use of the Product; or

(b) performance of our obligations under this Agreement and any applicable Subscription Agreement.

We will notify you in writing as soon as we do so. We will also lift the suspension as soon as we reasonably can after resolving the issue(s) that caused it.

2.5 Disruption of Services

We aim to provide our Services with minimal interruptions, but sometimes they may be affected by factors outside our control. These factors include, but are not limited to:

(a) problems with internet or telecommunications services, such as outages, delays, congestion, failures or faults;

(b) actions or omissions of Third Parties that are harmful, negligent or wilful;

(d) services provided by Third Parties that stop or become unavailable.

We will do our best to inform you of any disruptions and resume the Services as soon as possible.

3. Your use of our Products and Services

3.1 Your obligations relating to Services

When you enter into a Subscription Agreement with us, you agree to:

(a) comply with any obligations you have under the Subscription Agreement or this Agreement;

(b) use the Product or Services and carry out your obligations in a way that complies with Applicable Laws, including Tax Laws, Industrial Relations Laws and Privacy Laws, and not breach our Intellectual Property Rights or the Intellectual Property Rights of any Third Party;

(c) co-operate with us and provide us with the necessary information, access and assistance to deliver the Services, including (where applicable):

(i) giving us access to relevant Personnel and Users on reasonable notice;

(ii) giving us access to your software, systems, and documentation;

(iii) providing us with accurate and timely information; and

(iv) allowing us to enter your premises;

(d) be liable for the actions of your Users or Personnel;

(e) not interfere with the operation of the Product or Services; and

(f) not copy, modify, or display any content from the Product or Services without our written permission.

3.2 Your obligations relating to Subscription Services and Products

If you purchase Subscription Services under a Subscription Agreement, you agree to the following:

(a) You are responsible for managing the permissions and level of access granted to each of your Users and changing their permissions or stopping their access when necessary.

(b) You must not allow any Access Credentials to be used by more than one User.

(d) You must comply with the terms and conditions of any licence agreement between you and any Third Party that provides other applications or products that you use in conjunction with our Product. You must also pay any fees owed to that Third Party in addition to the Fees owed to us under the relevant Subscription Agreement.

(e) You must not attempt to reverse-engineer, reverse-assemble, decompile, or otherwise discover source code, formulas or processes of the Product.

(f) You must not introduce any Harmful Code to the Product.

(g) You must retain your Customer Data for compliance with the requirements of Government Agencies and Applicable Laws, including Tax Laws and Industrial Relations Laws.

No software or data storage solution is risk-free. We recommend that you periodically extract your Customer Data for archive purposes in a format that is accessible outside of your Product.

3.3 You are liable for your Users

You are liable for your Users’ compliance with this Agreement, especially clauses 3.1-3.2 and 6.4(b), and any applicable Subscription Agreement, and their actions or inactions related to this Agreement and any applicable Subscription Agreement.

3.4 Your Acceptance of Services

(a) If Services require Acceptance under the relevant Subscription Agreement, you must test the Services as soon as possible and tell us in writing about any major problems with the Services within 10 Business Days after we deliver the Services to you (or a longer period if we agree in writing).

(b) The Services will be considered as Accepted if:

(i) you do not tell us about any major problems with the Services within the time limit in clause 3.4(a); or

(ii) you or your Users start using the Services or Deliverable(s) in a live or production environment.

3.5 Delays

If we have to delay or change the Services (including the completion of any Deliverables) because of:

(a) our right to suspend the Services under this Agreement or the applicable Subscription Agreement;

(b) any change in the timing or complexity of the Services that you, your Personnel, Users or Third Party contractors cause or contribute to; or

then the dates for providing and accepting the Services in the Subscription Agreement may also be delayed or changed. We may adjust the Fees for any amended or revised Services resulting from the situations in (b)-(c) above. Both parties will co-operate in good faith to agree any changes to the Subscription Agreement (including any change to Fees). If the parties cannot agree on the changes within 10 Business Days, either party may terminate the Subscription Agreement immediately by giving written notice to the other party.

4. Changes to the Agreement, the Product or the Services

4.1 Changes to the terms of this Agreement

We may change the terms and conditions of this Agreement from time to time by notifying you in writing. We will give you at least 30 days written notice if the changes are significant or are likely to have a detrimental impact on you. We will be reasonable and fair when we make any changes to the terms and conditions.

4.2 Changes to the Product or the Services

We may change the Services from time to time, including by adding or removing Product features, functionality or inclusions. We will give you reasonable notice of any significant changes. We will give you at least 30 days’ notice if we remove core functionality from the Product.

4.3 Changes to Fees

(a) Annual CPI increase

Unless we have agreed otherwise in the relevant Subscription Agreement, we may increase Fees on 1 January each year by an amount calculated by multiplying the then current Fees by a fraction, the denominator of which is CPI for the quarter ending 12 months prior to the relevant adjustment date, and the numerator of which is the CPI for the quarter ending immediately before the adjustment date.

(b) Other changes to Fees

Without limiting our rights under clause 4.3(a), we may change the Fees after any Minimum Term by giving you at least 30 days’ prior written notice. We will be reasonable and fair when we make changes to the Fees.

4.4 Your right to terminate if we make changes

If we notify you of changes under clause 4.1 or 4.2 and the changes are likely to have a detrimental impact on you, or we notify you of changes under clause 4.3(b), you can terminate the relevant Subscription Agreement by giving us written notice before the changes take effect. If you terminate a Subscription Agreement under this clause 4.4, we will refund any Fees you paid in advance for:

(a) the period after the termination takes effect; and/or

(b) any Services we did not provide to you under the relevant Subscription Agreement.

We will process the refund promptly unless we disagree with you about whether or how much we owe you. If there is a genuine dispute, both parties must use reasonable endeavours to promptly resolve the dispute in accordance with clause 10.

5. Fees and Payment

5.1 Fees

You must pay us the Fees and any Expenses via direct debit by the due date specified in the relevant Tax Invoice.

5.2 Direct Debit Authority

You authorise us to deduct periodical instalments of any Fees and Expenses payable by you to us in accordance with the terms of your Direct Debit Authority. We will normally debit the Fees on the due date of the Tax Invoice, but we may do it at other times if the Direct Debit Authority allows. You are responsible for ensuring that you have enough credit or funds available in your credit card or bank account to cover payments that you owe us; and that your credit card or bank account details are up-to-date. If we cannot debit Fees and other Expenses due to us from your credit card or bank account, we will let you know that your account is overdue and we may try to re-draw up to three more times before we consider the direct debit to be dishonoured. You are responsible for paying any dishonour fee(s) charged by your financial institution. If your direct debit authority is cancelled or withdrawn, you must give us a replacement direct debit authority (unless we agree to another payment method).

5.3 Disputed amounts

If you dispute any amount in a Tax Invoice, you must pay us the undisputed portion and promptly notify us of your reasons for disputing the relevant amount. Both parties must use reasonable endeavours to resolve the dispute at their earliest possible convenience. If both parties cannot resolve the dispute, the matter must be resolved in accordance with clause 10. If the dispute is resolved and both parties agree, or if it is determined by a court of law, that any portion of the dispute amount is payable by you, then you must pay that portion to us within 14 days of resolution of the dispute.

5.4 Overdue amounts

Subject to clause 5.3, if any amount payable to us under this Agreement or any applicable Subscription Agreement has not been paid by you by the due date for payment:

(a) we may charge interest on the amount outstanding:

(i) at the penalty interest rate fixed under the Penalty Interest Rate Act 1983 (Vic) as amended or replaced from time to time, if this Agreement or the Subscription Agreement is governed by the laws of Victoria, Australia; or

(ii) at an interest rate equal to the official cash rate of the Reserve Bank of New Zealand plus five percent, if this Agreement or the Subscription Agreement is governed by the laws of New Zealand; and/or

(b) (without prejudicing the other rights we have under this Agreement or the applicable Subscription Agreement) we may suspend the provision of the Services if you fail to make payment within 10 Business Days of receiving a reminder notice from us requiring you to do so. We will lift any suspension as soon as we reasonably can after all outstanding amounts have been paid.

5.5 Taxes

(a) Any payments made in connection with this Agreement or any applicable Subscription Agreement will be exclusive of GST, unless otherwise stated.

(b) Each party represents and warrants that it is registered for GST and will promptly notify the other party if it ceases to be registered for GST.

(c) If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement or any applicable Subscription Agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.

(d) If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.

(e) This clause is subject to any other specific agreement regarding the payment of GST on supplies.

6. Confidentiality, privacy and data security

6.1 Confidentiality

Both parties will receive, possess or otherwise acquire Confidential Information of the other party. Both parties must take reasonable steps to protect and keep the other party’s Confidential Information secure.

6.2 Compliance with Privacy Laws

Both parties agree to comply with applicable Privacy Laws when providing and using the Services.

6.3 Specific requirements

(a) You are responsible for the collection, use, storage and other dealings with Personal Information related to your business and the Services. You must comply, and ensure that your Personnel or Users comply, with Privacy Laws in relation to any Personal Information that you or they handle under or in connection with this Agreement or any applicable Subscription Agreement.

(b) Without limiting clause 6.3(a), you undertake for yourself, and on behalf of your Personnel or Users, to:

(i) obtain all necessary consents from individuals (including your Users) for any Personal Information that you supply to us under this Agreement or any applicable Subscription Agreement, as required by Privacy Laws;

(ii) provide all notices to individuals (including your Users) from whom you collect Personal Information, as required by Privacy Laws;

(iii) ensure that any Personal Information you transfer to us is complete, accurate and up to date; and

(iv) notify us immediately if you become aware of any breach of Privacy Laws that may affect Personal Information under this Agreement or any applicable Subscription Agreement.

(i) you have legal authority to collect, use, disclose, store or handle the Personal Information as required by this Agreement or the applicable Subscription Agreement under the relevant Privacy Laws; and

(ii) you have obtained the consent of the individual to whom the Personal Information relates to collect, use, disclose, store or handle the Personal Information in the manner required by this Agreement or the applicable Subscription Agreement.

(d) We will collect, use, disclose, store, and handle Personal Information in accordance with this Agreement, any applicable Subscription Agreement, our Privacy Policy, and applicable Privacy Laws.

6.4 Data Security

(a) We must:

(i) take reasonable precautions to prevent a Security Breach in relation to the Customer Data; and

(ii) promptly notify you if we become aware of an Eligible Data Breach to the extent permitted by Applicable Law (including under the Privacy Act).

(b) You are solely responsible for keeping any Access Credentials secure and confidential. You acknowledge and agree that:

(i) Access Credentials must not be shared or used by more than one User;

(ii) we will not be responsible for any Security Breach or Eligible Data Breach that is caused or facilitated by your conduct or failure to protect any Access Credentials, unless Applicable Law prohibits us from excluding liability; and

(iii) you must immediately notify us if you suspect or know that Access Credentials have been compromised.

(c) You acknowledge that we may have to allow Third Parties, such as a Government Agency, to access and inspect information, documents and data including your Customer Data. You agree to us giving such access to the extent that we are required to do so by Applicable Law.

6.5 Publicity

Neither party may make public statements or press releases about this Agreement, any Subscription Agreement or their relationship without the other party’s written consent. We can use your name and logo in our customer lists and marketing with your written consent.

7. Intellectual Property Rights

7.1 Customer Data: ownership and use

(a) You (and, if applicable, your third-party licensors) own the Customer Data.

(b) You are responsible for verifying and maintaining the accuracy of your Customer Data.

(c) You grant us an irrevocable, non-exclusive, non-transferable, sublicensable, royalty-free licence to use the Customer Data:

(i) to enable us to perform our obligations under this Agreement or any applicable Subscription Agreement;

(ii) to develop and improve our products and services;

(iii) to identify, develop and deliver other functionality, products and services that may be of interest to you; and

(iv) for other purposes to which you expressly consent from time to time.

(d) You grant us a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free licence to use anonymised or aggregated data that we create or derive from the Customer Data for any purpose, provided that such anonymised or aggregated data does not contain Personal Information or your Confidential Information.

(e) You warrant that you have obtained any necessary consents and have all necessary rights to grant us the licence to Customer Data under clause 7.1(c).

7.2 Products and Services: ownership and use

(a) We (and our licensors, where applicable) own the Intellectual Property Rights in the Product and Services including but not limited to software, source code, object code and our templates, documents, marketing material, trade marks, business names, logos, trading styles, get-up, processes and methodologies.

(b) Subject to payment of the Fees, and any restrictions set out in the relevant Subscription Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable (other than to the Users), revocable, royalty-free licence during the term of the relevant Subscription Agreement to access and use the Product and/or the Deliverables, and any Updates or New Releases, to the extent necessary and for the sole purpose of you receiving the benefit of the Services.

7.3 Background Materials: ownership and use

(a) Each party retains all right, title and interest in its Background Materials.

(b) You grant to us:

(i) a non-exclusive, non-transferable, sublicensable, irrevocable, royalty-free licence during the term of this Agreement to access and use your Background Materials to the extent necessary and for the sole purpose of providing the Services and/or Deliverables; and

(ii) a perpetual, non-exclusive, transferable, sublicensable, irrevocable, royalty-free licence to use, modify, adapt, translate and otherwise exercise our rights in relation to clause 7.3(e).

(c) Subject to payment of the Fees, and any restrictions set out in the relevant Subscription Agreement, we grant to you a non-exclusive, non-transferable, non-sublicensable (other than to the Users), revocable, royalty-free licence during the term of the relevant Subscription Agreement to access and use our Background Materials to the extent incorporated into (but not separate from) the Services or Deliverables for the sole purpose of obtaining the benefit of the Services.

(d) Any modification, adaptation, translation or derivative of our Background Materials will vest in, or are hereby assigned, to us immediately upon creation.

(e) Any modifications, adaptations, translations or derivatives of your Background Materials created or developed by or on behalf of us in the course of providing the Services or Deliverables will vest in, or are hereby assigned to, us immediately on creation.

7.4 Third Party Materials

(a) You acknowledge and agree that we may provide you with a Product or Deliverables that are, or include, Third Party Material. You must comply with, and will be solely responsible for your compliance with, the terms of the Third Party Licence for the Third Party Material.

(b) If required under a Subscription Agreement, you must enter into the Third Party Licence directly with the relevant Third Party for the use of the Third Party Materials.

7.5 Intellectual Property Rights Indemnity

(a) Subject to you complying with clauses 7.5(b) and 7.5(c), we indemnify you from and against any liability suffered or incurred by you arising from or in connection with an IP Claim.

(b) If an IP Claim is made against you:

(i) you must promptly notify us of the IP Claim;

(ii) you must provide us with reasonable assistance and all information reasonably requested for defence of the IP Claim; and

(iii) you give us the right to defend and settle the IP Claim (provided that we may not settle an IP Claim without your prior consent, such consent not to be unreasonably withheld).

(c) If an IP Claim is successful, or if it is agreed that there is an infringement of the Intellectual Property Rights of a Third Party, then we may either, at our option and cost:

(i) modify the affected Services or Deliverables to render it, or your use, non-infringing within a reasonable period; or

(ii) render the relevant activity non-infringing by procuring the right or consent to exercise the relevant Intellectual Property Rights; and

if neither of the above remedies can be achieved, cease supplying the affected Product, remove any Deliverables and cease performing any Services that are agreed to infringe the Intellectual Property Rights of a Third Party, and we will refund you any Fees paid in advance for such infringing Product, Services or Deliverables not rendered.

(d) The indemnity in clause 7.5(a) will not apply to the extent that the IP Claim arises or results from one of the following:

(i) if we comply with your specific technical designs or instructions or include any content or other materials provided by you and the IP Claim specifically relates to the technical design, instructions or content provided by you;

(ii) the combination of the Product, Deliverables or Services and any other product, service, software, data, content, method or Background IP not provided by us, where the IP Claim specifically relates to the other product, service, data, content, method or Background IP not provided by us;

(iii) your (or your Users or Personnel’s) access or use of the Product, Deliverables or Services in a manner prohibited by us in writing, including access or use with any hardware, software or other services which are prohibited by us in writing; or

(iv) enhancements, adaptations, translations or modifications of the Product, Deliverables or Services by a person other than us or our Personnel.

8. Warranties

8.1 Our warranties

(a) We warrant to you that:

(i) we will use reasonable endeavours to provide the Services with all due care, skill, and diligence in accordance with good business practice for the industry;

(ii) we will perform the Services and provide each Deliverable in accordance with this Agreement and the applicable Subscription Agreement in all material respects; and

(iii) the performance of our obligations under this Agreement and any applicable Subscription Agreement and the access and use of the Product, Services and/or Deliverables in accordance with this Agreement and the applicable Subscription Agreement will not infringe the Intellectual Property Rights of any Third Party.

8.2 Customer warranties

You warrant to us that:

(a) any information or materials you have provided us under this Agreement or any applicable Subscription Agreement (including prior to the effective date of the first Subscription Agreement) are true, accurate, and are not misleading or deceptive;

(b) you have not engaged us to provide any Services in a way that will infringe any Intellectual Property Rights of any Third Parties; and

(i) ensure that the Intellectual Property Rights and other proprietary rights in the Product, Services or Deliverables are not infringed in any way; and

(ii) comply with our reasonable directions relating to your use of the Product, Services or Deliverables.

8.3 Mutual warranties

Each party represents and warrants that:

(a) it will comply with any obligations it has assumed under this Agreement and any applicable Subscription Agreement; and

(b) it will comply with all Applicable Laws in the performance of its obligations under this Agreement and any applicable Subscription Agreement.

9. Liability

9.1 Limits to our liability

Our liability to you for any non-compliance with a statutory guarantee, or loss or claim arising out of or in connection with the supply of goods or services under this Agreement or any applicable Subscription Agreement, or any breach by us of this Agreement or any applicable Subscription Agreement however arising (whether for breach of this Agreement or a Subscription Agreement, by way of indemnity, tort (including negligence), statute, custom, law or on any other basis), is limited to:

(a) the resupply of the Services; or

(b) the cost of re-suppling the Service,

and in any event will be limited to the fullest extent permitted by Applicable Law.

9.2 Where the Australian Consumer Law applies

(a) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

(b) This Agreement and any applicable Subscription Agreement do not exclude, restrict or modify the application of any part of the ACL, or the exercise of any right or remedy conferred by the ACL.

9.3 Where the New Zealand Consumer Guarantee Act and Fair Trading Act would otherwise apply

(a) For the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:

the goods and services provided to you under or in connection with this Agreement or any applicable Subscription Agreement are being provided and acquired in trade;
if the NZ FTA and/or NZ CGA applies to any goods or services supplied to you under or in connection with this Agreement or any applicable Subscription Agreement, the parties agree to contract out of the NZ CGA and sections 9, 12A and 13 of the NZ FTA; and
all representations, conditions, warranties and terms that would otherwise be expressed or implied in this Agreement or any applicable Subscription Agreement by general law, statute or custom are expressly excluded (to the extent that such representations, conditions, warranties and terms can be excluded at law).

(b) Except as specified in clause 9.3(a), this Agreement and any applicable Subscription Agreement do not exclude, restrict or modify the application of any part of the NZ CGA or NZ FTA, or the exercise of any right or remedy conferred by the NZ CGA or NZ FTA.

9.4 When we will not be liable to you

(a) We will not be liable to you for any error, problem or defect arising from or in connection with:

(i) your or your Users’ access or use of the Services in a manner not authorised by us in writing, including access or use with any hardware, software or other services not authorised by us in writing;

(ii) enhancements, adaptations, translations or modifications of the Services not made by us;

(iii) faults, malfunction or defect in any Third Party Material; or

(iv) telecommunications or power failure or fault, or defective network or Internet connection.

(b) We will not be liable to you to the extent that a failure to deliver the Services or meet a Service Level was caused or contributed to by:

(i) you, your Third Party providers, Personnel or Users;

(ii) a breach of obligations under this Agreement or any applicable Subscription Agreement by you or your Third Party providers, Personnel or Users; or

(iv) any of the circumstances set out in clause 2.5(a)-(d), 3.5(a)-(c) or clause 9.4(a).

9.5 Mutual liability cap

In no event will either party’s aggregate cumulative liability (whether in contract, tort, negligence, statute or otherwise, including by way of any indemnity) arising under or in connection with this Agreement and all Subscription Agreement, exceed average monthly fees paid by you to us under all then-current Subscription Agreements, multiplied by twelve (12).

9.6 Mutual exclusion of liability for consequential loss

Except in accordance with clauses 9.2 and 9.3, in no event will either party be liable for any indirect loss (not being a loss which arises naturally as a result of a breach of this Agreement or any applicable Subscription Agreement or other event giving rise to the relevant claim) or any loss which is consequential, special, punitive, exemplary or incidental, and includes loss of reputation, loss of goodwill, lost profits, lost revenue, loss of or damage to data, loss of use (including loss of use by Third Parties), any failure to realise anticipated savings and loss of opportunities, wasted staff costs, or costs of procurement or substitution of goods and/or services.

9.7 Proportionate liability

Each party’s liability under the Agreement or any applicable Subscription Agreement (including under any indemnity) is reduced proportionately to the extent that such liability is caused or contributed to by the breach of this Agreement or the applicable Subscription Agreement or the wrongful, unlawful or negligent act or omission of the other party or its Personnel.

9.8 Mutual duty to mitigate loss

Each party must use all reasonable endeavours to mitigate its losses.

10. Dispute Resolution

(a) If a party claims that a dispute has arisen, it must notify the other party in writing of the nature of the dispute (Dispute Notice).

(b) Neither party may start any legal proceedings relating to the dispute unless it has followed the steps in this clause 10, except to seek urgent equitable or interlocutory relief.

(i) Both parties must try to resolve the dispute within 10 Business Days after receiving the Dispute Notice, or a longer period if they mutually agree.

(ii) If the parties fail to resolve the dispute within that time, they must refer the dispute to nominated senior representatives of each party, who will meet and discuss the dispute promptly with the aim of resolving it.

(iii) If the nominated senior representatives fail to resolve the dispute within 10 Business Days after the referral, either party may submit the dispute to a mediator for consideration in accordance with the Guidelines for Commercial Mediation of the Australian Disputes Centre, which are part of this Agreement.

(d) Each party must pay its own internal and legal costs in relation to complying with this clause 10. The mediator’s costs must be shared equally between both parties.

11. Termination

11.1 Termination for convenience

After expiry of any Minimum Term, either party may terminate a Subscription Agreement at any time for any reason by giving the other party at least 30 days’ prior written notice to that effect.

11.2 Termination due to default

If an Event of Default occurs in relation to a party (Defaulting Party):

(a) the other party may give a notice (Default Notice) to the Defaulting Party specifying the Event of Default and requiring the Defaulting Party to remedy the default within 20 Business Days after the Default Notice is given to the Defaulting Party; and

(b) if the Defaulting Party does not comply with the notice within the relevant period referred to in clause 11.2(a) then the other party, without limiting its other rights and remedies, may terminate the Subscription Agreement to which the Event of Default relates, by giving to the Defaulting Party notice with immediate effect.

11.3 Change in Law

We may immediately terminate a Subscription Agreement by giving you written notice if a Government Agency issues a direction, or there is a change in Applicable Law, which makes the ongoing provision of the Services substantially unworkable or non-functional.

11.4 Your other termination rights

You have additional termination rights under clause 4.4. The termination rights in this clause 11 are in addition to your termination rights in clause 4.4.

11.5 Automatic expiration of this Agreement

Upon the termination or expiration of all Subscription Agreements under this Agreement, this Agreement will automatically expire.

11.6 Consequences of termination of a Subscription Agreement

(a) Termination of a Subscription Agreement will not affect this Agreement and any other Subscription Agreements which are in effect between us and you at the time of the termination and such other Subscription Agreements will continue in accordance with their respective terms, unless otherwise stated in the Subscription Agreement.

(b) On the expiry or termination of a Subscription Agreement for any reason:

you must pay any Fees that are due and payable to us for Services rendered to you (including those which may not have been invoiced prior to expiry or termination) under the relevant Subscription Agreement up to the date of expiry or termination of the Subscription Agreement;

(ii) the Subscription Agreement will be at an end as to its future operation except for the enforcement of any right or claim in relation to the Subscription Agreement that arises on, or has arisen before, the expiry or termination; and

(iii) you must immediately cease using and return to us any of our Background Material and Confidential Information, at your risk and cost, or if such Background Material or Confidential Information is incapable of being returned, permanently destroying it (unless otherwise agreed in writing by the parties).

(c) If you terminate a Subscription Agreement in accordance with clause 11.1 or we terminate a Subscription Agreement under clause 11.3 due to your Event of Default, you must pay us the following:

(i) our Unavoidable Costs; and

(ii) if the termination is during any applicable Minimum Term, the amount of any Fees that would otherwise have been payable for the remainder of the Minimum Term, with Fees for Subscription Services charged based on the estimated number of Active Users specified in the Subscription Agreement, or the number of Active Users in the month prior to termination, whichever is greater.

(d) Following expiry or termination of a Subscription Agreement, we may take steps to delete the Customer Data in relation to the relevant Subscription Agreement in accordance with our standard data retention practices and procedures, whether or not you exercised your rights under clause 11.8(a) or otherwise extracted your Customer Data.

11.7 Consequences of termination of this Agreement

If this Agreement is terminated for any reason, any Subscription Agreement that is still in force at the effective date of termination of this Agreement will automatically and simultaneously terminate on the same date.

11.8 Disengagement

Upon expiry or termination of a Subscription Agreement, you may request that we provide you with disengagement services. You will be asked to sign a separate Subscription Agreement for the disengagement services and you will be required to pay additional fees which will be charged at our then-current rates (unless otherwise agreed in writing by the parties).

11.9 Survival

Clauses 1.3, 5-13 and all other provisions that, by their nature, are intended to survive termination of this Agreement, will survive termination and expiry of this Agreement.

12. General terms

12.1 Governing Law

(a) Our address for service of notices, and the governing law and jurisdiction for this Agreement and any applicable Subscription Agreement are set out in the table below:

Location of Customer	Address for Service of Notices	Governing Law and Jurisdiction
Australia	Level 1, 8 Gardner Close, Milton, Queensland, 4064 With a copy to: Level 3, 168 Cremorne Street, Cremorne, Victoria, 3121	Victoria, Australia
New Zealand	Level 5, Eden 5 12 Normanby Road, Mount Eden, Auckland, 1024	New Zealand
Elsewhere in the world	Level 3, 168 Cremorne Street, Cremorne, Victoria, 3121 With a copy to: Level 3, 168 Cremorne Street, Cremorne, Victoria, 3121	Victoria, Australia

(b) This Agreement and any applicable Subscription Agreement is governed by and construed under the Applicable Law of the jurisdiction set out in clause 12.1(a).

12.2 Force Majeure Events

Neither party will be liable to the other party for any delay or failure to perform its obligations under this Agreement or any applicable Subscription Agreement as a result of a Force Majeure Event.

12.3 Relationship

Nothing in this Agreement or any applicable Subscription Agreement is intended to create a partnership, joint venture, or agency relationship between us and you, and each party agrees that they are entering into this Agreement and any applicable Subscription Agreement only as independent contractors.

12.4 Costs

Each party must pay its own costs in relation to:

(a) the negotiation, execution, performance or variation of this Agreement or any Subscription Agreement; and

(b) the performance of any action by that party in compliance with any liability arising under this Agreement or any Subscription Agreement unless otherwise agreed in writing by the parties.

12.5 Assignment

(a) You can assign, novate or otherwise transfer your rights and/or obligations under this Agreement and any applicable Subscription Agreement to an affiliated entity upon written notice to us, subject to no outstanding amounts being due for payment, and subject to the incoming customer completing such transfer forms as we may reasonably require (including completing any necessary identity or verification checks). Any purported assignment, novation or transfer that does not follow our prescribed process is invalid and you remain responsible for your obligations under this Agreement and any applicable Subscription Agreement.

(b) We may assign, novate or otherwise transfer our rights and/or obligations under this Agreement and any applicable Subscription Agreement to any of our affiliated entities, or to any entity that acquires all or substantially all of our business or assets related to the Product, and we will give you notice via email of any such assignment, novation or transfer.

(c) Subject to the foregoing, this Agreement and any applicable Subscription Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assignees.

12.6 Notices

(a) Any notice to or by a party under this Agreement and any applicable Subscription Agreement must be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender.

(b) Any notice may be served by delivery in person or by post or transmission by email to the address or number of the recipient most recently notified by the recipient to the sender. Any email notices to us must be copied to legal@myob.com.

(c) Any notice is effective for the purposes of this Agreement and any applicable Subscription Agreement upon delivery to the recipient or production to the sender of a copy of the email sent before 4.00pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.

12.7 Third parties

This Agreement and any applicable Subscription Agreement confers rights only upon a person expressed to be a party, and not upon any other person.

12.8 Entire agreement

This Agreement, along with the applicable Subscription Agreement, constitutes the entire agreement between us and you in relation to its subject matter, and supersedes any prior written agreement by the parties in relation to that subject matter.

12.9 Further assurance

Each party must sign any document and perform any action necessary to give full effect to this Agreement and any applicable Subscription Agreement, whether before or after performance of this Agreement or the applicable Subscription Agreement.

12.10 Waivers

Any failure by a party to exercise any right under this Agreement or any applicable Subscription Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

12.11 Remedies

The rights of a party under this Agreement or any applicable Subscription Agreement are cumulative and not exclusive of any rights provided by Applicable Law.

12.12 Severability

Any provision of this Agreement or a Subscription Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the Subscription Agreement or the validity of that provision in any other jurisdiction.

12.13 Counterparts

This Agreement or any Subscription Agreement may be signed in any number of counterparts, all of which taken together are deemed to constitute one and the same document. Each party consents to the use of electronic communications or means to sign this document in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic) (as amended or replaced from time to time) (if this Agreement or the Subscription Agreement is governed by the laws of Victoria, Australia) or the Contract and Commercial Law Act 2017 (NZ) (as amended or replaced from time to time) (if this Agreement or the Subscription Agreement is governed by the laws of New Zealand).

12.14 Acting as trustee

If you enter into this Agreement or any Subscription Agreement as trustee of a trust, you and your successors as trustee of the trust will be liable under this Agreement or the applicable Subscription Agreement in your own right and as trustee of the trust. You warrant that, at the date of this Agreement and the date of any applicable Subscription Agreement, you have authority to exercise all powers and discretions conferred by the deed establishing the trust, and that the trust is a valid and subsisting trust.

13. Glossary

13.1 Definitions

In this Agreement:

Acceptance means, in respect of the Services, that such Services comply with its relevant specifications and documentation in all material respects;

Access Credential means any certificates, usernames, passwords or other log-in details or security mechanisms used by you and your Users for the purpose of accessing and using the Services;

Active User means:

any Management User; and
any User who is onboarded, logs into or uses the Product, clocks into a shift, appears on a roster or timesheet, is registered on the payroll, appears in a finalised pay run, uses any part of the Payroll System, creates a profile or makes a change to their personal details in a given calendar month;

Affiliate has the same meaning as ‘related body corporate’ in the Corporations Act (if this Agreement or the applicable Subscription Agreement is governed by the laws of Victoria, Australia) or ‘related company’ in the Companies Act (if this Agreement or the applicable Subscription Agreement is governed by the laws of New Zealand);

Agreement means this master services agreement;

Applicable Law means all laws, rules and regulations in force from time to time in the relevant jurisdiction specified in clause 12.1(a);

Background Materials means:

any material, communications or technology which is pre-existing or created independently of a Subscription Agreement which a party makes available for the performance of its obligations in respect of the Services; or
any information, communications, technology, software or other materials which are otherwise required for effective use of the Services; and
any improvements, enhancements, modifications, adaptations, extensions, developments, application of and all other technical advances made to the materials set out in (a) and (b) above, including those developed in performing the Services, whether or not protected by Applicable Law,

and in relation to you, your Background Materials includes any information, documentation, brands, logos and trade marks used by you to brand and promote yourself that have been provided by you or on your behalf to us for the purposes of the Services;

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia (if this Agreement or the applicable Subscription Agreement is governed by the laws of Victoria, Australia) or Auckland, New Zealand (if this Agreement or the applicable Subscription Agreement is governed by the laws of New Zealand);

Companies Act means the Companies Act 1993 (NZ) (as amended or replaced from time to time);

Confidential Information means, in respect of a party:

information submitted or disclosed by the party or its Affiliates during negotiations, discussions and meetings relating to this Agreement or a Subscription Agreement;
information that at the time of disclosure by the party or its Affiliates is identified to the other party as being confidential; and
all other information belonging or relating to a party or its Affiliates that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or a Subscription Agreement or which the other party knows, or ought reasonably to be expected to know, is confidential to that first party;

Corporations Act means the Corporations Act 2001 (Cth) (as amended or replaced from time to time);

CPI means:

the weighted average of the All Groups Price Index Numbers for the eight capital cities of the states and territories of Australia published from time to time by the Australian Bureau of Statistics or, if that index number is no longer published, its substitute as a cumulative indicator of the inflation rate in Australia (if this Agreement or the applicable Subscription Agreement is governed by the laws of Victoria, Australia); or

the weighted average of the New Zealand CPI All Groups Price Index Numbers published from time to time by Statistics New Zealand or, if that index number is no longer published, its substitute as a cumulative indicator of the inflation rate in New Zealand (if this Agreement or the applicable Subscription Agreement is governed by the laws of New Zealand).

Customer Data means the data owned or supplied by you which is uploaded or generated by you in the course of using the Product;

Deliverable means a deliverable specified in a Subscription Agreement, excluding our Background Materials;

Direct Debit Authority means the direct debit authority signed by you, applicable to the Fees payable under a Subscription Agreement;

Eligible Data Breach has the same meaning as is given to that term in the Australian Privacy Act or the meaning given to “notifiable privacy breach” under the New Zealand Privacy Act (as applicable);

Event of Default means, in relation to a party, the occurrence of any one or more of the following events or circumstances:

the party commits a material breach of its obligations under the Agreement or a Subscription Agreement;
an Insolvency Event occurs in relation to the party;
a notice of deregistration of the party is given under sections 601AA(5) or 601AB(5) of the Corporations Act; a request is sent or delivered in accordance with section 318(1)(d) of the Companies Act, or a notice is issued under section 319 of the Companies Act; or
the party fails to pay by the due date any undisputed amount due and payable by it under a Subscription Agreement;

Expenses means any reasonable out-of-pocket expenses and associated administrative costs approved by you or otherwise incurred by us in connection with the provision of the Services;

Fees means the fees specified in the Subscription Agreement for:

the provision of the Subscription Servies to your Active Users; and
any other Services we provide you with;

Force Majeure Event means any fire, flood, earthquake, cyclone, act of God, riot, civil disorder, rebellion or revolution, war or terrorist act, epidemic or pandemic (whether declared or undeclared), any restrictions on the movement of individuals or goods imposed by a Government Agency, or other similar cause beyond the reasonable control of a party;

Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction, including but not limited to the Australian Taxation Office or the New Zealand Inland Revenue Department;

GST means any tax, levy, charge or impost implemented under the GST Law or an Act of the Parliament of the Commonwealth of Australia or New Zealand substantially in the form of, or which has a similar effect to, the GST Law (as applicable);

GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended or replaced from time to time) (if this Agreement or the applicable Subscription Agreement is governed by the laws of Victoria, Australia), or the Goods and Services Tax Act 1985 (NZ) (as amended or replaced from time to time) (if this Agreement or the applicable Subscription Agreement is governed by the laws of New Zealand);

Harmful Code means a “back door”, “time bomb”, “logic bomb”, “Trojan Horse”, “worm”, “drop dead device”, “virus” or any other malware, spyware or computer software routine having the effect of permitting unauthorised access to or use of a computer system or network or disabling, damaging, corrupting or erasing, or disrupting or impairing the normal operation of any part of a computer system or network;

Industrial Relations Laws means all Applicable Laws, principles, or directions issued by a Government Agency relating to employment relations;

Insolvency Event means, in relation to a party, any one or more of the following events or circumstances:

being in liquidation or provisional liquidation or under administration;
having a controller or analogous person appointed to it or to any of its property where “controller” means a receiver, receiver and manager, administrator or liquidator (whether provisional or otherwise) of that person or that person’s property, or anyone else who (whether or not as agent for the person) is in possession, or has control, of that person’s property to enforce an encumbrance;
being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
if it fails to take the required action set out in a statutory demand (made in accordance with section 289 of the Companies Act) within 15 working days of the date of service (or such longer period as a court has ordered);
being unable to pay its debts or being otherwise insolvent;
becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or
any analogous event or circumstance under the laws of any jurisdiction;

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at civil, common law or in equity and wherever existing, including:

patents, designs, copyright, rights in circuit layouts, database rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
any application or right to apply for registration of any of the rights in paragraph (a);
any registration of any of those rights or any registration of any application referred to in paragraph (a); and
all renewals and extensions of these rights;

IP Claim means a proven claim by a Third Party that the Services or their use, infringes the Intellectual Property Rights of that Third Party;

Management User means a User who has configured permissions within the Product as a ‘Manager’, ‘Manager with Finance’, ‘Manager with Payroll’ or ‘Admin’;

Minimum Term means the minimum term for Services (if any) specified in the relevant Order Form;

New Release means software which has been produced primarily to provide an extension, alteration, improvement or additional functionality to the Product and which does not constitute an Update;

Payroll System means the Roubler payroll system or any third party payroll system integrated with or used by the Product;

Personal Information has the same meaning as is given to that term in the Privacy Act;

Personnel in relation to a party, are the directors, officers, employees, agents or subcontractors of that party;

Privacy Act means the Privacy Act 1988 (Cth) (as amended or replaced from time to time) if this Agreement or the applicable Subscription Agreement is governed by the laws of Victoria, Australia or the Privacy Act 2020 (NZ) (as amended or replaced from time to time) if this Agreement or the applicable Subscription Agreement is governed by the laws of New Zealand;

Privacy Law means all applicable Commonwealth, State, Territory and New Zealand legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to the Personal Information, including the Privacy Act and includes the Australian or New Zealand Privacy Principles (as applicable) contained within the Privacy Act;

Privacy Policy means the MYOB Group Privacy Policy located at URL https://www.myob.com/au/privacy-policy or https://www.myob.com/nz/privacy-policy, as amended from time to time;

Product means the Roubler workforce management software the subject of licensing or Subscription Services;

Professional Services means the professional services to be provided by us to you, as specified in the Subscription Agreement. Professional Services may include installation services, implementation services, development services, training services, and consulting services;

Scheduled Maintenance means an interruption to the provision of the Services for the purpose of us undertaking any repairs, modifications, additions or other maintenance to the Services;

Security Breach means unauthorised access to or alteration of the Customer Data;

Service Levels means the service levels set out in the relevant Subscription Agreement, or if no service levels are set out in the Subscription Agreement, the service levels available at [insert URL];

Services means the services we agree to provide from time to time under this Agreement or any applicable Subscription Agreement, including any Subscription Services, Support Services, Professional Services, other services or Deliverables;

Subscription Agreement means a written statement, proposal or scope of works (including any schedules, annexures or attachments) for the provision of the Services by us to you, substantially in the form approved by us from time to time;

Subscription Services means the subscription services for the Product to be provided by us to you, as specified in the relevant Subscription Agreement;

Support Services mean the support services to be provided by us to you, as specified in the relevant Subscription Agreement;

Tax Invoice has the meaning under GST Law;

Tax Laws means all applicable Commonwealth, State, Territory and New Zealand legislation, regulations, principles, or directions issued by a Government Agency relating to taxation in Australia or New Zealand, including but not limited to Taxation Administration Act 1953 (Cth) (as amended or replaced from time to time) in Australia or the Tax Administration Act 1994 (NZ) in New Zealand (as amended or replaced from time to time);

Third Party means any party other than us or you or our respective Affiliates;

Third Party Licence means the licence agreement of a Third Party licensor for the use of Third Party Material;

Third Party Material any material, communications, software or technology which is owned or licensed by a Third Party;

Unavoidable Costs means reasonable costs incurred by us, in connection with the performance of our obligations under this Agreement or any applicable Subscription Agreement or any agreement with any Third Party in connection with this Agreement or any applicable Subscription Agreement which cannot be cancelled, refunded or re-allocated to our other operations or business activities, including, for example labour and Third Party costs incurred to deliver a Subscription Agreement then terminated by you;

Update means software which has been made generally available from time to time by us to our licensees produced primarily to overcome defects in the Product or to provide minor improvements to the performance or functionality, including bug fixes and patches but excludes a New Release;

User means a member of your Personnel who is authorised to use the Product;

We or Us means Roubler Australia Pty Ltd (ABN 89 634 405 557) of Level 1, 8 Gardner Close, Milton, QLD 4064; and

You means the party specified on the Subscription Agreement as the ‘Customer’, and your has a corresponding meaning.

13.2 Interpretation

In this Agreement, unless the context requires otherwise:

(a) the headings of clauses and subclauses are only for convenience and do not affect the meaning;

(b) singular words include the plural and vice versa;

(d) if a word or phrase is defined, its other forms have the same meaning;

(e) a reference to a party to this Agreement includes its successors and permitted assigns;

(f) a reference to any agreement or document includes any changes to that agreement or document;

(g) an agreement, representation or, warranty by two or more persons binds and benefits them jointly and individually;

(h) if something must be done or paid under this Agreement on a day that is not a Business Day, it must be done or paid on the previous Business Day; and

(i) reference to a statute includes any regulations and amendments under that statute and any new statute that replaces or includes any of its provisions.

Updated May 2024.