Master Services Agreement

(i) intended to replace a clause (if referenced from this agreement in the quote) with a new clause, then the new clause will replace and prevail over the referenced clause from this agreement; and

(ii)  intended to add a new clause that incorporates along with this agreement and will replace and prevail over any other terms to the extent of any inconsistency.

(a)  The Client will be taken to have accepted this agreement if the Client signs this agreement, indicates acceptance of this agreement via Ajent WA’s website or by way of email, or otherwise orders, accepts or pays for any Services provided by Ajent WA after receiving or becoming aware of this agreement. 

(b)  This agreement will commence on the start date set out in a Quote (Start Date), and continues in effect until the end date set out a Quote (End Date), constituting the term of this agreement (Term), unless earlier terminated in accordance with clause 13, or extended in accordance with clause 2(b). Term or Start date and end date does not apply to Ad Hoc services but scope of services or work shall be carried out in accordance with this agreeement.

(c)  The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.

(d)  If any Services are supplied after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for those Services.

(e)  The duration of any Quote is indicated by the dates set out in the Quote.

Ajent WA will perform the Services in accordance with the Quote as completed at the Start Date.

(i)  the specific exclusions set out in clause 4.3 and any other activities that are not expressly stated as included in accordance with clause 4.1(a);

(ii)  any services requested by the Client where the Client has paid Ajent WA upfront for Prepaid Hours and those Prepaid Hours have since been exhausted (Excluded Services).

(i)  any Excluded Services set out in clause 4.3(a);

(ii)  additional Annual Maintenance Services or Ad Hoc Support Services, including:

(A)  re-configuring resources;

(B)  integrations with newly acquired/introduced hardware, software or networks, or with other formerly non-existent third party resources; and

(C)  changes to managed resources, when such configuration, integration or changes are not warranted or necessary (in Ajent WA’s reasonable opinion);

(D)  any Ad Hoc Support Services outside of the Annual Maintenance Services Package scope.

(i)  requested by the Client; or

(ii)  suggested by Ajent WA, 

Ajent WA will provide a quote for the Additional Services in accordance with the Schedule of Fees in Schedule 1.

(i)  Ajent WA will provide the Additional Services; and

(ii)  the Client will be liable to pay the Additional Services Fees,

in accordance with the terms and conditions of this Managed Services Agreement.

(i)  the Client must immediately notify Ajent WA if they do not agree to the Third Party Terms; and

(ii)  if Ajent WA does not receive a notice in accordance with clause 4.5(b)(i) the Client will be taken to have accepted those Third Party Terms, and Ajent WA will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

(a)  Ajent WA will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of the Client Data. The Client must not, and ensure that its personnel do not, undertake any action that may have the potential to compromise Ajent WA’s ability to comply with this clause.

(b)  Ajent WA will not make any undocumented, unreported or unauthorised configuration changes to its own systems or to the information security controls that secure the Client Data, if those changes would materially decrease the protections afforded to the Client Data.

(c)  Ajent WA will notify and keep the Client notified of Ajent WA’s current safety and security procedures and safeguards that are made from time to time.

(d)    Ajent WA will hold professional liability, public and products liability insurance and the Client can request a copy for the same. Insurance cover at the time of this agreement is Guild Insurance Ltd.

(e) Ajent WA retains subscription for software-as-a-service platforms like Zoho Corporation's Zoho Assist for digitally remoting-in to the Client's digital device to perform Services that is also embedded on Ajent WA's website hosted in Australia. Zoho Corporation's Zoho One for accounting, book-keeping, contracts, website-hosting, client's personal information, vendor contacts hosted in Australia. Microsoft Corporation's Azure Tenancy for email hosting and managing its own devices with tenancy hosted in Australia. Ajent WA relies on their security measures for data privacy and ensures its own systems are cybersecurity hardened, and complies with industry standards or benchmarks. 

The Client must provide Ajent WA with all documentation, information and assistance reasonably required by Ajent WA to perform the Services.

The Client agrees to provide Ajent WA with access to:

(i)  Ajent WA will not be liable for any permanent damage or loss suffered by the Client due to a failure to take the Preventative Measures; and

The Client agrees that it will not, by receiving or requesting the Services:

(a)  The Client or Ajent WA (as the case may be) will immediately notify the other party after learning of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or Personal Information or other compromise of the security, confidentiality, or integrity of Confidential Information or Personal Information (collectively, Security Breaches).

(b)  Ajent WA will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.

(c)  Ajent WA will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach. The Client must take all steps necessary to ensure that data integrity is maintained if the IT System crashes, suffers a power surge or is otherwise compromised, including by immediately notifying Ajent WA and following any directions given by Ajent WA.

(d)  The Client will be solely responsible for any obligations in relation to any Notifiable Data Breaches and the Office of the Australian Information Commission.

(a)  The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in the Quote.

(b)  To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.

(c)  If there is no Due Date set out in the Quote or an Invoice in relation to a Fee, that Fee must be paid within 30 days from the date of Quote or an Invoice. 

Ajent WA will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.

Ajent WA reserves the right to review and increase their Fees annually.

Unless otherwise agreed in writing:

(a)  the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Ajent WA in connection with the Quote; and

(b)  any third party costs incurred by Ajent WA in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Quote.

Unless otherwise indicated, amounts stated in the Quote do not include GST. In relation to any GST payable for a taxable supply by Ajent WA, the Client must pay the GST subject to Ajent WA providing a tax invoice.

Ajent WA reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express). 

9.1   PRIVACY

(a)  The parties must comply with:

(i)  if applicable, their respective obligations under the Privacy Act 1988 (Cth); and

(ii)  Ajent WA’s privacy policy as in force from time to time.

(b)  Ajent WA will keep the Client informed of any changes to Ajent WA’s Privacy policy during the term.

9.2  CONFIDENTIAL INFORMATION

The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party except:

(a)  with the other party’s prior written consent;

(b)  as required by Law; or to their Personnel on a need-to-know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).

9.3   BREACH

If either party becomes aware of a suspected or actual breach of clause 9.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of this clause 9.2.

9.4   PERMITTED USE

A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.

9.5   RETURN

On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.

9.6   ADDITIONAL DISCLOSEES

Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 9.6. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.

10.1   DEFINITIONS

In this clause, the following terms have the following meanings in relation to Intellectual Property Rights:

(a)  Existing Material means Material, other than New Material;

(b)  New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and

(c)  Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.

10.2   EXISTING MATERIAL

(a)  Except to the extent otherwise stated in the Quote or in this clause 10:

(i)  each party retains ownership of the Intellectual Property Rights in its Existing Material; and

(ii)  nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.

(b)  The Client grants to Ajent WA (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.

(c)  The Client warrants that Ajent WA’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Ajent WA from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

(d)  Ajent WA grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:

(i)  such Existing Material is incorporated into the New Material; and

(ii)  such use is reasonably required for the Client to enjoy the benefit of the Services.

10.3   NEW MATERIAL

(a)  Unless otherwise stated in the Quote, Intellectual Property Rights in New Material are immediately assigned to and vest in Ajent WA as those rights are created.

(b)  Ajent WA grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use the New Material to the extent reasonably required for the Client to enjoy the benefit of the Services.

11.1   WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.

(b)  Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

11.2  LIABILITY

(a) To the maximum extent permitted by law and subject to 4.11, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to Ajent WA in the 3 months preceding the date of the event giving rise to the relevant liability.

(b) Clause 11.2(a) does not apply to the Client’s liability in respect of loss or damage sustained by Ajent WA arising from the Client’s breach of:

(i)  breach or failure to comply with any relevant data protection or privacy laws;

(ii)  breach of third party intellectual property rights;

(iii)  breach of third party terms; or

(iv)  negligent, fraudulent or criminal act or omission.

11.3   CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Ajent WA, except:

(a)  in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b)  to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

(a)  If an issue between the parties arises under this agreement that cannot be resolved day-to-day by mutual agreement, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties. 

(b)  If the issue relates to payment of Fees under this agreement and cannot be resolved under clause 12(a), the parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute). 

(c)  The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved. 

(d)  If mediation does not resolve the issue, the parties must: 

(i)  if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and

(ii)  based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.

(e)  The parties will follow the binding outcome of arbitration (or other agreed mechanism).

(f)  Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.

(g)  The process in this clause does not apply where a party requires an urgent injunction.

13.1   TERMINATION FOR CONVENIENCE

(a)  Either party may end this agreement for no reason, by providing notice to the other party.

(b)  This agreement will end 14  days after the day the notice is sent (the End Date).

(c)  On the End Date, Ajent WA will provide an invoice to the Client for: 

(i)  any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);

(ii)  any pre-approved third-party costs Ajent WA has incurred on the Client’s behalf up to the End Date; and

(iii)  if the Client has engaged Ajent WA for Annual Maintenance Services and terminates this agreement within 12 months of the Start Date, or within 12 months of the parties’ renewal of the Annual Maintenance Services, Ajent WA’s pre-estimated genuine losses as a result of the Client ending this agreement, which will be equal to 30 days or 1 month of the Fees, together, the Outstanding Amounts)

(d)  The Client will pay the Outstanding Amounts to Ajent WA on the End Date, unless otherwise agreed in a written payment plan between the parties

(e)  Once the Outstanding Amounts have been paid, Ajent WA will hand over any completed deliverables if applicable

(f)  If Ajent WA terminates this agreement pursuant to this clause, Ajent WA will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.

13.2  TERMINATION FOR BREACH

(a)  If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.

(b)  The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.

(c)  The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).

(d)  After the Rectification Period, the Notifying Party will:

(i)  if the Breach has been successfully rectified, notify the other party that the agreement will continue; or

(ii)  if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).

(e)  Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.

(f)  Any disputes regarding termination under this clause must be dealt with in accordance with clause 12. The indemnities, warranties and liability caps in clause 11 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 13.1 will not limit or otherwise effect Ajent WA’s rights under this agreement, at law or otherwise in equity; Ajent WA’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.

13.3   OTHER CONSEQUENCES FOR TERMINATION

(a)  If this agreement ends, in addition to the specific consequences set out in clause 13.1 or 13.2 (as applicable), the parties will:

(i)  return all property and Confidential Information to the other party;

(ii)  comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation; and

(iii)  stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 10.

(b)  The Client acknowledges and agrees that if this agreement ends, access to any Software will be revoked at the end of the then current payment cycle.

13.4   QUOTES

(a)  The same rights and responsibilities set out in this clause 13 apply to each Quote as it applies to the agreement as a whole.

(b)  In the event either party elects to terminate this agreement as a whole or a single or multiple Quotes under this clause 13, any notice required to be given regarding the termination must clearly state whether the termination notice is to affect a single or multiple Quotes or the agreement as a whole.

(c)  In the event the termination is for:

(i)  a single or multiple Quotes, such termination will not impact any other Quotes then current, or the effect of this agreement as a whole; or

(ii)  the agreement as a whole, such termination will be deemed to affect the agreement as a whole as well as all Quotes then current.

(a)  A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:

(i)  act of nature, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

(ii)  strike or other industrial action; 

(iii)  war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

(iv)  decision of a government authority in relation to COVID-19, or other epidemic or pandemic, to the extent the occurrence affects the Affected Party’s ability to perform the obligation.

(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:

(i)  reasonable details of the Force Majeure Event; and

(ii)  so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.

(c)  Subject to compliance with clause 14(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.

(d)  The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

(a)  Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Quote and the email’s subject heading must refer to the name and date of this agreement. 

(b)  If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent. 

(c)  The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

16.1   RELATIONSHIP

In providing the Services under this Agreement it is expressly agreed that Ajent WA is acting as an independent contractor and not as an employee. The parties agree that this Agreement does not create a partnership or joint venture between them.

16.2   GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Western Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

16.3   BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where the Quote may indicate Services for any other days.

16.4   AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

16.5   WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

16.6   SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

16.7   JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

16.8   ASSIGNMENT & NOVATION

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

16.9   COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

16.10   COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

16.11   ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

16.12   INTERPRETATION

(a)  (singular and plural) words in the singular includes the plural (and vice versa);

(b)  (currency) a reference to $; or “dollar” is to Australian currency;

(c)  (gender) words indicating a gender includes the corresponding words of any other gender;

(d)  (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(e)  (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(f)  (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(g)  (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

(h)  (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(i)  (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(j)  (includes) the word “includes” and similar words in any form is not a word of limitation; and

(k)  (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

In these terms and conditions, the following words and phrases have the following meaning:

 

Term	Meaning
Ad Hoc Support Services	Means the ad hoc support services listed, if applicable, in the Quote.
Additional Services	Has the meaning given in clause 4.1(c).
Additional Services Fees	Any amounts payable for the performance of Additional Services, calculated on the basis of the schedule of Fees in Schedule 1.
Annual Maintenance Services	Means the services, if applicable, described in a Quote.
Annual Maintenance Services Package	Means the package of services listed, if applicable, in the Quote.
Business Day	A day from 8am to 5pm AWST (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Perth, Western Australia.
Client	The client as set out in a Quote.
Client Data	Any data that contains Confidential Information or Personal Information relating to the Client’s business which Ajent WA manages under this agreement.
Confidential Information	Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
Excluded Services	Has the meaning given in clause 4.1(b).
Fees	The Fees refer to the Total amount or Balance Due specified in the Quote or an Invoice.
Intellectual Property Rights	means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
IT System	The Client’s hardware, Software, data communications lines, network and telecommunications equipment and internet-related information technology infrastructure, including computers, laptops and phones.
Key Persons	The persons identified in the Quote as the persons who Ajent WA intends to provide to perform the Services.
Quote	A document agreed and signed by both and which addresses the scope and Fees of Services to be provided by Ajent WA to the Client from time to time.
Services	The scope of work (SoW) or services to be provided by Ajent WA to the Client in accordance with a Quote.
Software	Any programs, applications and other operating information licensed to the Client from third party providers and installed on the Client’s IT System.
Start Date	The date set out in a Quote, being the date that this agreement is signed and becomes effective and binding on the parties.
Third Party Terms	Has the meaning given in clause 4.5(a).
Term	The duration of this agreement being the Period from the Start Date as set out in a Quote.