MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT ("AGREEMENT") GOVERNS CUSTOMER'S PURCHASE AND ONGOING USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.

1. DEFINITIONS

"Additional Services" means services requested by Customer beyond the scope of an executed Proposal.

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Change Order" means a written amendment to a Proposal that modifies the scope, schedule, or fees of Services, executed by both parties pursuant to Clause 2.3.

"Commencement Date" means the date set out in the Proposal.

"Customer" means the company or other legal entity identified in the Proposal, and Affiliates of that company or entity.

"Customer Data" means all electronic data or information submitted or supplied by Customer and includes data extracted from Customer's system or hardware for the purposes of providing the Services and all data on any Systems provided to Us.

"Custom Work" means custom software modules, configurations, methodologies, processes, documentation, and other materials created by Us specifically for Customer in performing the Services, as distinguished from Our pre-existing materials and Third-Party Software.

"Systems" means software systems, databases, or IT infrastructure provided to Us by Customer in association with the provision of the Services.

"Fee" means the fees to be paid to Us by Customer as set out in any Proposal for the Services.

"Force Majeure Event" has the meaning set forth in Clause 16.

"Initial Term" means the period set out in the Proposal.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Personal Information" has the meaning given to that term in the Privacy Act 1988 (Cth).

"Proposal" means a document provided by Us that includes at least a description of the Services, deliverables, timeline, and fees. All Proposals must use Our standard template and explicitly incorporate this Agreement by reference.

"Service" means the services provided by Us as set out in a Proposal.

"Special Instructions" means instructions given by Customer to Us in relation to the provision of the Services and include without limitation the use of any security protocols provided by the Customer.

"Third-Party Software" means software licensed under open source or commercial licenses, including but not limited to Odoo ERP software and its associated modules.

"We," "Us" or "Our" refers to Cyder Solutions, ABN 27 879 469 073, 383 Wombat Road, Valencia Creek, Victoria, Australia and our Affiliates.

"Work Product" means deliverables, documentation, and materials created by Us as a result of performing the Services, excluding Our pre-existing intellectual property and methodologies.

2. SERVICE SCHEDULES AND CHANGE MANAGEMENT

2.1 Incorporated Terms

This Agreement incorporates each Proposal entered into by the parties at the Commencement Date and any Proposal added to this Agreement under Clause 2.2.

2.2 New Proposals

Where the parties agree that new Services will be provided by Us, the parties will enter into a new Proposal or will amend an existing Proposal which will then form part of this Agreement. All new Proposals must:

  • be in writing;
  • use Our standard Proposal template;
  • explicitly reference and incorporate this Agreement;
  • specify any Special Instructions; and
  • be executed by authorised representatives of both parties.

Customer-prepared documents that do not use Our standard template or that contain terms conflicting with this Agreement shall not constitute valid Proposals unless We explicitly accept them in writing with specific reference to the conflicting terms.

2.3 Change Orders

Customer may request revisions to Services described in a Proposal by providing written notice to Us. If such revisions would materially increase or decrease the scope of the Services or the effort required to deliver the Work Product under the applicable Proposal, as reasonably determined by Us, then within five (5) business days after Our receipt of such notice from Customer, We will deliver to Customer a written Change Order specifying:

  • the revised description of Services and Work Product;
  • the revised delivery schedule;
  • the revised costs (calculated using the same or similar payment methods as in the applicable Proposal); and
  • the revised payment schedule, as applicable.

If Customer approves the Change Order in writing, then the parties will execute it, and the executed Change Order will supersede the applicable Proposal with respect to the matters addressed therein. Work on the revised scope shall not commence until the Change Order is executed by both parties. Changes requested by Customer that do not materially affect scope or effort may be accommodated without a formal Change Order at Our discretion.

2.4 Ancillary Services

The parties agree that notwithstanding any provision of this Agreement, if We provide ancillary services to the Customer for which there is no formal agreement or Proposal, those services are provided subject to the terms and conditions of this Agreement.

3. THE SERVICES

3.1 Provision of the Services

In consideration of payment of the Fee by Customer to Us, We will provide Services to the Customer pursuant to this Agreement and the relevant Proposals during the Term. We represent and warrant that We will:

  • perform the Services in a professional and workmanlike manner consistent with generally accepted industry standards and best practices in the field of business systems consulting and implementation;
  • use qualified and experienced personnel appropriate to the Services being performed;
  • perform the Services in accordance with the specifications and timelines set forth in the applicable Proposal; and
  • comply with all applicable laws and regulations in the performance of the Services.

Customer agrees and understands that We may subcontract some or all of the Services, provided that:

  • We remain fully responsible and liable for all work performed by subcontractors as if performed by Us directly;
  • all subcontractors are bound by confidentiality, data protection, and intellectual property obligations no less restrictive than those in this Agreement;
  • subcontractors maintain appropriate professional liability insurance; and
  • We retain direct supervision and quality control over all subcontracted work.

3.2 Performance Standards and Timelines

We will use commercially reasonable efforts to meet the delivery dates and milestones specified in each Proposal. In the event We expect a failure to satisfy a delivery date or obligation in a Proposal, We shall provide Customer with reasonable advance notice of such expected failure and propose remedial measures. Extensions of time due to Customer delays, Force Majeure Events, or changes in scope shall not constitute a breach of Our obligations.

4. USE OF THE SERVICES

4.1 Customer Responsibilities

Customer will:

  • be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data;
  • only use the Services in accordance with applicable laws and government regulations and in accordance with this Agreement;
  • provide timely access to personnel, facilities, information, and approvals as reasonably necessary for Us to perform the Services;
  • designate a primary point of contact with authority to make decisions regarding the Services; and
  • provide reasonable cooperation and assistance as specified in applicable Proposals.

Customer will not use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.

4.2 Special Instructions

  • We will comply with all reasonable Special Instructions given by Customer in relation to the Services, provided those instructions are not inconsistent with applicable laws and government regulations or the Services themselves.
  • To the extent permitted by law, We make no warranty or representation in relation to the Special Instructions and any conditions or warranties otherwise implied by statute or any other law are expressly excluded.
  • We rely on the Customer as to the truth, accuracy, fitness for purpose or suitability of any Special Instructions. The Customer accepts sole responsibility for Our compliance with any Special Instructions and must satisfy itself as to the truth, accuracy, fitness for purpose or suitability of any Special Instructions.
  • Customer indemnifies Us, our agents and employees against all claims, demands, actions, costs (including legal costs on a full indemnity basis), charges, expenses, loss, damages or other liability arising from Our compliance with any Special Instructions including (without limitation) compliance with any special security instructions, use of any security protocols provided by the Customer, any modification, unauthorised access to, disclosure or destruction of Customer Data or Systems.

5. FEES AND PAYMENT FOR SERVICES

5.1 Fees

Customer will be responsible for payment of all Fees specified in all Proposals (including fees for Additional Services). Except as otherwise specified herein or in a Proposal:

  • Fees are quoted and payable in Australian dollars;
  • Fees are based on services purchased and not actual usage;
  • payment obligations are non-cancellable; and
  • to the extent permitted by law, Fees paid are non-refundable except as specifically provided in Clause 12.4.

5.2 Invoicing and Payment

We will invoice Customer in accordance with the payment schedule in the applicable Proposal. Unless otherwise stated in the Proposal, Fees are due thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Us.

5.3 Disputed Invoices

If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by Us, the Customer must:

  • pay the undisputed component by the due date; and
  • notify Us in writing within fourteen (14) days after receipt of the invoice of the amount in dispute and the grounds of the dispute, providing reasonable supporting documentation.

We will respond to this dispute notice within fourteen (14) days. If a resolution is not reached within fourteen (14) days after Our response, then Clause 17.11 (Dispute Resolution) will apply. Disputes raised more than fourteen (14) days after invoice receipt may not be considered valid.

5.4 Overdue Fees

If any fees are not received from Customer by the due date then at Our discretion:

  • such fees may accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or
  • We may impose conditions on future service renewals and Proposals, including requiring payment terms shorter than those specified in Clause 5.2 or any Proposal, or requiring payment in advance; and/or
  • We may, without limiting Our other rights and remedies, suspend Services until such amounts are paid in full, provided that We give Customer seven (7) days written notice before suspension unless non-payment exceeds sixty (60) days, in which case We may suspend immediately.

5.5 Taxes

Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to goods and services tax (GST), value-added tax, sales tax, use tax or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If We have the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Us with a valid tax exemption certificate authorised by the appropriate taxing authority.

5.6 Fee Increases

Unless otherwise specified in the applicable Proposal, We may increase per-unit pricing upon thirty (30) days written notice to Customer. Any increase in per-unit pricing will apply from the date specified in the notice and will apply to Services provided after that date, including renewals of existing Proposals.

5.7 Expenses

Out-of-pocket expenses incurred by Us under this Agreement (including travel, accommodation, meals, and materials) must be pre-approved in writing by Customer and are reimbursable in accordance with the terms of, and only to the extent provided for in, a Proposal. We will provide receipts and documentation for all reimbursable expenses.

6. PROPRIETARY RIGHTS AND SOFTWARE LICENSING

6.1 Reservation of Rights

Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to:

  • Our pre-existing methodologies, processes, tools, templates, and know-how;
  • Our general knowledge, skills, experience, ideas, concepts, and techniques gained or used in performing the Services;
  • any materials, software, or documentation that existed prior to this Agreement or that We develop independently of this Agreement.

No rights are granted to Customer hereunder other than as expressly set forth herein.

6.2 Ownership of Custom Work

We will own all the intellectual property rights in all Custom Work created by Us as a result of performing the Services, including:

  • any deliverables, methodologies, processes, and documentation created specifically for Customer;
  • software modifications, configurations, customisations, and modules developed for Customer;
  • improvements and amendments to Our pre-existing materials, regardless of whether Customer suggested, contributed to or otherwise participated in the development, improvement or amendment.

Customer acknowledges that such intellectual property constitutes valuable proprietary assets of Cyder Solutions and may be used by Us in providing services to other customers, subject to the confidentiality obligations in Clause 7.

6.3 Customer License to Custom Work

Subject to Customer's full payment of all applicable Fees, We grant Customer a perpetual (subject to termination provisions in Clause 12), non-exclusive, non-transferable license to:

  • use the Custom Work solely for Customer's internal business purposes;
  • modify the Custom Work for Customer's internal use, provided that Customer acknowledges that We have no obligation to support or maintain modified versions;
  • make backup copies of the Custom Work as reasonably necessary.

Customer may not:

  • distribute, sublicense, rent, lease, or otherwise transfer the Custom Work to third parties without Our prior written consent;
  • reverse engineer, decompile, or disassemble the Custom Work except to the extent expressly permitted by applicable law;
  • remove or obscure any proprietary notices on the Custom Work;
  • use the Custom Work to provide services to third parties or in a service bureau arrangement.

6.4 Third-Party Software and Open Source

Customer acknowledges that:

  • certain Third-Party Software, including Odoo ERP core software, is licensed under open source licenses such as the GNU Lesser General Public License v3 (LGPL v3);
  • Customer's rights to use such Third-Party Software are governed by the applicable third-party license terms, not by this Agreement;
  • We make no warranties regarding Third-Party Software beyond those provided by the licensor;
  • Custom Work created by Us that interfaces with or extends Third-Party Software is Our proprietary work and is not subject to the open source license unless explicitly required by the specific license terms;
  • Customer is responsible for complying with all applicable third-party license terms in its use of Third-Party Software.

We will inform Customer of any open source software components incorporated into Custom Work and the applicable license terms. To the extent any open source license requires that modifications or derivative works be licensed under the same open source license, We will work with Customer to structure the solution to preserve Our proprietary rights where possible.

6.5 Customer Materials

Customer retains all rights, title, and interest (including intellectual property rights) in and to Customer Data and any materials provided by Customer to Us ("Customer Materials"). We may use Customer Materials solely as necessary to perform the Services. Except as necessary to perform the Services or as expressly specified in a Proposal, We shall have no right to disclose or use any Customer Materials for any purpose.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information

As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is:

  • designated as confidential; or
  • that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

Customer's Confidential Information includes Customer Data, business plans, financial information, and strategic information. Our Confidential Information includes the Services, Our methodologies, pricing, Custom Work, technical information, and business processes. Confidential Information of each party includes the terms and conditions of all Proposals and this Agreement.

However, Confidential Information does not include any information that:

  • is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
  • was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, as evidenced by the Receiving Party's written records;
  • is received from a third party without breach of any obligation owed to the Disclosing Party and without restriction on disclosure;
  • was independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as evidenced by the Receiving Party's written records; or
  • is required to be disclosed by law or court order, provided that the Receiving Party provides prompt notice to the Disclosing Party and cooperates in any effort to obtain confidential treatment.

7.2 Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party:

  • the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement;
  • the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, subcontractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein; and
  • the Receiving Party will not disclose the terms of this Agreement or any Proposal to third parties without the Disclosing Party's prior written consent, except to the Receiving Party's legal and financial advisors under obligations of confidentiality, or as required by law.

7.3 Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party:

  • gives the Disclosing Party prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure; and
  • discloses only that portion of the Confidential Information that is legally required to be disclosed.

If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.4 Injunctive Relief

Each party acknowledges that:

  • a breach of this Clause 7 may cause irreparable harm to the Disclosing Party for which monetary damages may not be an adequate remedy;
  • in the event of such breach or threatened breach, the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief and specific performance, without the necessity of proving actual damages or posting a bond; and
  • such equitable relief shall be in addition to, and not in lieu of, any other remedies available at law or in equity.

7.5 Duration

The obligations under this Clause 7 shall survive termination or expiration of this Agreement and shall continue for a period of five (5) years from the date of disclosure of the Confidential Information, except that obligations with respect to trade secrets shall continue for so long as such information remains a trade secret under applicable law.

8. DATA ACCESS AND SECURITY

8.1 Data Access Rights

Customer grants Us the right to access Customer Data and Systems as necessary to provide the Services. Customer acknowledges that such access may be required for system configuration, data migration, testing, troubleshooting, and ongoing support activities. We will access Customer Data and Systems only:

  • to the extent necessary to perform the Services;
  • in accordance with Customer's reasonable security requirements and Special Instructions;
  • using appropriately authorised personnel; and
  • in compliance with applicable data protection laws.

8.2 Security Measures

We will implement and maintain reasonable administrative, physical, and technical safeguards designed to:

  • protect the security, confidentiality and integrity of Customer Data;
  • prevent unauthorised access to or use of Customer Data; and
  • comply with applicable data protection and privacy laws.

Customer acknowledges that the effectiveness of such measures depends in part on Customer's own security practices, infrastructure, and cooperation in implementing recommended security measures.

8.3 Data Backup and Recovery

Customer remains solely responsible for maintaining appropriate backups of Customer Data. We strongly recommend that Customer implement comprehensive backup procedures before commencement of any Services involving data modification, migration, or integration. Unless specifically included in a Proposal, We have no obligation to backup or maintain copies of Customer Data. We will not be liable for loss of Customer Data except to the extent such loss is directly caused by Our gross negligence or willful misconduct.

8.4 Data Retention and Return

Upon expiration or termination of this Agreement or a Proposal:

  • We will maintain Customer Data for a period of ninety (90) days solely for the purpose of allowing Customer to access and retrieve such data;
  • Customer will have the right to request return or deletion of Customer Data during this period;
  • after the ninety (90) day period, We may delete Customer Data unless legally required to retain it or unless Customer has made alternative arrangements with Us in writing;
  • We will confirm in writing the return or destruction of Customer Data upon Customer's request.

Notwithstanding the foregoing, We may retain Customer Data to the extent required by applicable law, regulation, or professional standards, or as necessary to defend against legal claims, provided such retained data remains subject to the confidentiality obligations in Clause 7.

9. WARRANTIES AND DISCLAIMERS

9.1 Mutual Warranties

Each party represents and warrants that:

  • it has full power and authority to enter into this Agreement and to perform its obligations hereunder;
  • entering into and performing this Agreement does not violate any agreement or obligation it has with any third party;
  • it will comply with all applicable laws, regulations, and industry standards in connection with this Agreement.

9.2 Our Additional Warranties

We further represent and warrant that:

  • to Our knowledge, the performance of the Services and the use of Custom Work by Customer in accordance with this Agreement will not infringe, misappropriate, or otherwise violate any copyright, trade secret, trademark, patent or other intellectual property right of any third party;
  • We have the right to grant the licenses and rights granted to Customer under this Agreement;
  • the Services will be performed in a professional and workmanlike manner consistent with industry standards; and
  • We will use personnel with appropriate skills and experience to perform the Services.

We will promptly notify Customer in writing if We become aware of any actual or threatened claim that the Services or Custom Work infringes any third-party intellectual property rights.

9.3 Disclaimer of Warranties

EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE 9, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

To the extent permitted by law, We do not warrant or represent that:

  • the Services will meet Customer's requirements in all respects;
  • the Services will be uninterrupted, timely, secure or error-free;
  • any errors or defects will be corrected;
  • the Services will be compatible with all hardware, software, systems or data;
  • the results obtained from use of the Services will be accurate or reliable; or
  • the quality of any products, services, information or other materials obtained through the Services will meet Customer's expectations.

9.4 Limitation of Warranties for Matters Beyond Our Control

To the extent permitted by law, Our warranties and obligations under this Agreement do not extend to:

  • failures caused by Customer's misuse, modification, or improper operation of the Services or Custom Work;
  • failures caused by third-party software, hardware, or services not provided by Us;
  • failures caused by Customer's failure to implement recommended updates, patches, or configurations;
  • failures resulting from Force Majeure Events;
  • failures caused by viruses, Malicious Code, or security breaches attributable to Customer's systems or security practices; or
  • any modifications to Custom Work made by Customer or third parties without Our involvement.

9.5 Consumer Law

The parties agree that the Services are not services ordinarily acquired for personal, domestic or household use or consumption. To the extent that any legislation (including the Australian Consumer Law) implies warranties or conditions that cannot be excluded, Our liability for any failure to comply with any such warranties, conditions, guarantees or obligations will be limited, at Our option, to:

If the breach relates to goods:

  • the replacement of the goods or the supply of equivalent goods;
  • the repair of such goods;
  • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
  • the payment of the cost of having the goods repaired.

If the breach relates to services:

  • the supplying of the services again; or
  • the payment of the cost of having the services supplied again.

10. MUTUAL INDEMNIFICATION

10.1 Customer Indemnification

Customer indemnifies Us (Our related bodies corporate and their respective officers, directors, employees, agents, successors and assigns) and must defend and hold Us harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising from, in connection with, or relating to third-party claims or allegations in respect of any of the following:

  • Customer's breach of its obligations or warranties with respect to Customer Data, Systems, or use of the Services;
  • claims against Us by Customer's subcontractors, vendors, or personnel;
  • death of or injury to any person to the extent caused by the conduct of Customer, its related bodies corporate, or their respective agents, employees or contractors;
  • damage to, or loss or destruction of, any real or tangible personal property (including Systems) or Customer Data to the extent caused by conduct of Customer, its related bodies corporate, or their respective agents, employees or contractors;
  • any violation of law, regulation, or third-party rights by Customer;
  • any breach of Customer's representations and warranties under this Agreement;
  • any negligent or wilful misconduct of Customer; or
  • any breach of Customer's obligations under this Agreement, including compliance with Special Instructions provided by Customer.

10.2 Our Indemnification

We indemnify Customer (and its officers, directors, employees, agents, successors and assigns) and will defend and hold Customer harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising from, in connection with, or relating to third-party claims or allegations that:

  • the Services or Custom Work, when used in accordance with this Agreement, infringe, misappropriate, or otherwise violate any Australian copyright, trade secret, trademark, or patent of any third party; or
  • Our breach of Our representations and warranties under Clause 9.2.

10.3 Indemnification Procedures

A party seeking indemnification under this Clause 10 ("Indemnified Party") shall:

  • promptly notify the indemnifying party ("Indemnifying Party") in writing of any claim for which indemnification is sought;
  • grant the Indemnifying Party sole control of the defense and settlement of such claim, provided that the Indemnifying Party shall not settle any claim in a manner that admits fault or liability on behalf of the Indemnified Party or imposes obligations on the Indemnified Party without the Indemnified Party's prior written consent, which shall not be unreasonably withheld;
  • provide reasonable cooperation to the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling such claim; and
  • have the right to participate in the defense with counsel of its own choosing at its own expense.

10.4 Remedies for Infringement Claims

In the event of a claim that the Services or Custom Work infringe third-party intellectual property rights, We may, at Our option and expense:

  • procure for Customer the right to continue using the Services or Custom Work;
  • modify or replace the infringing portion to make it non-infringing without materially impairing its functionality or performance; or
  • if neither of the foregoing is commercially reasonable, terminate the applicable Proposal and refund Customer a pro-rata portion of prepaid fees for Services not yet provided.

10.5 Exclusions from Our Indemnification

We shall have no obligation to indemnify Customer to the extent that an infringement claim arises from:

  • modification of the Services or Custom Work by Customer or any third party;
  • use of the Services or Custom Work in combination with products, services, or data not provided by Us, where the infringement would not have occurred but for such combination;
  • Customer's failure to implement updates or modifications that would have avoided the infringement;
  • use of the Services or Custom Work in a manner not authorised by this Agreement or the applicable Proposal; or
  • Customer Data or Customer Materials.

11. LIMITATION OF LIABILITY

11.1 Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF ONE HUNDRED THOUSAND DOLLARS (AUD $100,000) OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE INCIDENT.

11.2 Exclusion of Consequential Damages

IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.3 Exceptions to Limitations

The limitations in Clauses 11.1 and 11.2 shall not apply to:

  • either party's indemnification obligations under Clause 10;
  • either party's breach of confidentiality obligations under Clause 7;
  • either party's breach of intellectual property rights under Clause 6;
  • Our gross negligence or wilful misconduct;
  • death or bodily injury caused by either party's negligence;
  • either party's fraud or fraudulent misrepresentation;
  • liabilities that cannot be limited by law, including violations of consumer protection laws; or
  • Customer's payment obligations under Clause 5.

11.4 Essential Basis of Bargain

Each party acknowledges that the other party has entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties set forth herein, and that the same form an essential basis of the bargain between the parties. The limitations in this Clause 11 shall apply even if any limited remedy provided in this Agreement fails of its essential purpose.

11.5 Allocation of Risk

The fees charged under this Agreement reflect the allocation of risk set forth in this Clause 11 and the disclaimers in Clause 9. Customer may choose to purchase additional insurance coverage if Customer desires protection beyond the limitations set forth herein.

12. TERM AND TERMINATION

12.1 Term of Agreement

This Agreement commences on the Commencement Date and continues until the expiry of the Initial Term unless extended by mutual written agreement between the parties, or unless earlier terminated in accordance with the terms of this Agreement.

12.2 Expiry of Proposals

Upon completion or expiry of all Proposals, either party may terminate this Agreement by giving thirty (30) days written notice to the other party, provided that no Proposals remain active.

12.3 Termination for Cause

Either party may terminate this Agreement or any individual Proposal for cause:

  • upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty-day period; or
  • immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Material breaches include, but are not limited to:

  • failure to pay undisputed fees when due (after expiry of cure period);
  • breach of confidentiality obligations;
  • breach of intellectual property provisions;
  • repeated failure to perform obligations under this Agreement;
  • fraud, willful misconduct, or gross negligence.

12.4 Termination for Convenience by Customer

Customer may terminate any Proposal for convenience upon sixty (60) days written notice to Us. Upon such termination:

  • Customer shall be liable for payment for Services performed and Work Product delivered up through the effective date of termination;
  • Customer shall pay for work in progress at the time of termination notice, calculated on a pro-rata basis;
  • Customer shall reimburse Us for any reasonable, non-cancellable commitments made by Us in reliance on the Proposal (e.g., purchased licenses, reserved resources), provided We make commercially reasonable efforts to mitigate such costs; and
  • We will refund any prepaid fees for Services not yet performed as of the effective date of termination, less any work in progress and non-cancellable commitments.

12.5 Termination for Convenience by Us

We may terminate any Proposal for convenience upon ninety (90) days written notice to Customer. Upon such termination:

  • We will refund Customer any prepaid fees for Services not yet performed as of the effective date of termination;
  • We will use commercially reasonable efforts to transition work to Customer or Customer's designee; and
  • Customer's license to Custom Work delivered prior to termination shall survive.

12.6 Effect of Expiration or Termination

Upon expiration or termination of this Agreement:

  • all outstanding payment obligations shall become immediately due and payable;
  • Customer will immediately cease accessing and using any Services not yet fully delivered;
  • We will maintain Customer Data for ninety (90) days as provided in Clause 8.4;
  • each party will return or destroy (at the other party's option) the other party's Confidential Information and all data, materials and other property held by it in connection with this Agreement, except as provided in Clause 8.4 or as required by law;
  • each party shall confirm in writing that it has returned or destroyed, as applicable, all such information, except for information retained pursuant to Clause 8.4 or as required by law; and
  • Customer's license to use Custom Work under Clause 6.3 shall survive, provided Customer has paid all fees due as of the termination date.

12.7 Surviving Provisions

The following Clauses shall survive expiration or termination of this Agreement: Clause 1 (Definitions), Clause 5 (Fees and Payment), Clause 6 (Proprietary Rights and Software Licensing), Clause 7 (Confidentiality), Clause 8 (Data Access and Security), Clause 9 (Warranties and Disclaimers), Clause 10 (Mutual Indemnification), Clause 11 (Limitation of Liability), Clause 12.6 (Effect of Termination), Clause 12.7 (Surviving Provisions), and Clause 17 (General Provisions).

13. PRIVACY AND CUSTOMER DATA

13.1 Protection of Customer Data

Subject to Clause 13.2, during the provision of Services:

  • We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data;
  • We will not, unless required by Customer, law or government regulation to do so, (i) modify Customer Data, (ii) disclose Customer Data, or (iii) access Customer Data, except to provide the Services and as authorised by this Agreement; and
  • We will implement and maintain a written information security program that includes administrative, technical, and physical safeguards appropriate to the sensitivity of the Customer Data.

From time to time Customer may provide its own security protocols, provisions or instructions in respect of the provision of the Services, the Systems or Customer Data:

  • such security protocols, provisions or instructions and Our compliance therewith form part of the Special Instructions hereunder;
  • Customer agrees that if the Special Instructions relate to Customer providing or supplying security protocols or security services in relation to the Systems or Customer Data, We do not hold the Customer Data under any applicable privacy law including the Privacy Act; and
  • Customer warrants and agrees that through Our use of Customer's own security protocols, provisions or instructions, We have taken active measures and reasonable steps to secure the Customer Data and Systems as required by any applicable privacy law including the Privacy Act.

13.2 Privacy Policy

The information that We collect from Customer or the Customer Data may be subject to applicable privacy laws. Our Privacy Policy is expressly incorporated into and is a part of this Agreement. The Services are provided from Australia. If Customer is located in the United States, the European Union or other regions with laws governing data collection and use that may differ from Australian law, by providing Customer Data to Us or providing Systems to Us that contain Customer Data (either intentionally or otherwise), Customer warrants to Us that:

  • Customer is authorised to distribute Customer Data to Us;
  • Customer is not breaching any applicable data privacy rule or regulations, any contractual obligations, or any of its internal privacy policies; and
  • Customer has obtained all necessary consents and provided all necessary notices required under applicable law for Us to process Customer Data in accordance with this Agreement.

13.3 Responsibility for Data

Customer acknowledges that:

  • unless stated otherwise in the Proposal that applies to the provision of the Services, by using the Service, Customer Data may be transmitted and/or stored outside Our system and overseas;
  • all data held on Systems or Systems in transit, or Systems accessed by Cyder Solutions or its contractors, remains the property of Customer;
  • Customer bears legal responsibility for Customer Data as the Data Controller, as may be defined by applicable data protection regulations including the General Data Protection Regulation (GDPR);
  • We act as a Data Processor with respect to Customer Data to the extent such concepts apply; and
  • We will process Customer Data only in accordance with Customer's documented instructions as set forth in this Agreement and applicable Proposals.

13.4 Personal Information

The Parties acknowledge that some of the Customer Data may constitute Personal Information under applicable privacy laws. Subject to Clause 13.5, to the extent it is reasonable and lawful to do so, We will comply with the Privacy Act and other applicable data protection laws in Our handling of Personal Information.

13.5 Personal Information Processing

  • Customer warrants to Us that it has all rights and has obtained all permissions and consents necessary to provide Customer Data to Us, including any Personal Information within the Customer Data, and that We may process such Personal Information in accordance with this Agreement.
  • Customer agrees that We are not responsible for, and are not required to, identify data on Systems provided to Us as containing Personal Information or otherwise determine whether Customer Data contains Personal Information.
  • The parties acknowledge that from time to time, We may receive Customer Data from Customer which contains Personal Information which We are not otherwise entitled to hold or which was not disclosed to Us as containing Personal Information. The parties also acknowledge that, given the nature of the Services We provide and the quantity of Customer Data provided to Us, it may not be lawful or reasonable for Us to wipe or de-identify that Customer Data immediately upon discovery.
  • If We discover that Customer Data contains any unsolicited Personal Information not previously disclosed:
    • if Customer has elected under any applicable Proposal that any such unsolicited Personal Information is to be destroyed, wiped or de-identified, or that any Systems containing any such unsolicited Personal Information require special handling, those services will be considered Additional Services and will be charged to Customer at Our then-current standard rates;
    • if no such election has been made under the applicable Proposal, then We may, at Our full discretion, either wipe, destroy or de-identify any such unsolicited Personal Information, or apply special handling to any Systems containing any such unsolicited Personal Information, and those services will be considered Additional Services and will be charged to Customer at Our then-current standard rates.

13.6 Authorised Processing of Data

Customer agrees and warrants to Us that:

  • if in the provision of the Services We access, modify, wipe, destroy or de-identify Customer Data, or We process Customer Data under Clause 13.5, those actions taken by Us are expressly authorised by Customer;
  • such actions do not constitute unauthorised misuse, interference, loss, access, modification or disclosure of Personal Information under the Privacy Act or other applicable data protection laws; and
  • Customer will indemnify and hold Us harmless from any claims arising from Our processing of Customer Data in accordance with Customer's instructions or this Agreement.

13.7 Data Breach Notification

In the event We become aware of any unauthorised access to, or acquisition, disclosure, or loss of Customer Data that constitutes a data breach under applicable law ("Data Breach"), We will:

  • notify Customer without unreasonable delay after becoming aware of the Data Breach;
  • provide Customer with sufficient information to allow Customer to meet any data breach reporting obligations it may have under applicable law;
  • cooperate with Customer in investigating the Data Breach; and
  • take reasonable steps to mitigate the effects of the Data Breach and to prevent further unauthorised access.

Customer acknowledges that We cannot guarantee that notification will be provided within any specific time period, as the time required to investigate and confirm a Data Breach may vary depending on the circumstances.

14. NON-SOLICITATION

14.1 Mutual Non-Solicitation

Each party agrees that it will not, during the period of this Agreement or for a period of twelve (12) months thereafter, directly or indirectly solicit, canvass, approach or accept an approach from a person who was at any time during the twelve (12) months preceding the ending of this Agreement, the other party's employee or contractor (including any sub-contractors), or an employee or contractor of the other party's suppliers, with a view to that person:

  • starting a position as an employee or contractor of the soliciting party or its affiliates;
  • providing services to the soliciting party in competition with services being provided by the other party; or
  • terminating their employment or engagement with the other party.

14.2 Exception for General Solicitation

Notwithstanding Clause 14.1, either party may:

  • hire an individual who responds to a general advertisement or recruitment campaign not specifically targeted at the other party's personnel;
  • hire an individual who initiates contact with the hiring party without any solicitation; or
  • discuss potential employment with an individual whose employment with the other party has been terminated for at least six (6) months.

14.3 Fair and Reasonable Restraints

Each party agrees that the restraints in this Clause 14 are fair, reasonable and necessary to protect the other party's legitimate business interests, including protection of confidential information, preservation of customer relationships, and recoupment of training investments.

14.4 Liquidated Damages

If either party breaches Clause 14.1, the breaching party shall pay to the non-breaching party liquidated damages (and not a penalty) equal to twelve (12) months of the hired individual's base salary or contractor fees, which the parties agree is a reasonable pre-estimate of the loss that would be suffered by the non-breaching party.

15. INSURANCE

15.1 Our Insurance Obligations

During the term of this Agreement and any Proposal, We shall maintain in effect, at Our expense, the following minimum levels of insurance coverage:

  • Professional Liability Insurance (Errors & Omissions): AUD $1,000,000 per occurrence and in the aggregate, covering liability arising from Our professional services, errors, omissions, and negligence;
  • Public Liability Insurance: AUD $10,000,000 per occurrence, covering bodily injury and property damage caused by Our acts or omissions;
  • Cyber Liability Insurance: AUD $1,000,000 per occurrence, covering data breaches, privacy violations, and cyber incidents; and
  • Workers' Compensation Insurance: as required by applicable law in the jurisdictions in which We operate.

15.2 Insurance Certificates

We shall provide Customer with certificates of insurance evidencing the coverage required under Clause 15.1 upon Customer's reasonable request, but no more frequently than annually. Such certificates shall name Customer as an additional insured where applicable and permitted by the insurer.

15.3 Notice of Changes

We shall notify Customer at least thirty (30) days in advance of any cancellation, non-renewal, or material reduction in the coverage required under Clause 15.1.

15.4 No Limitation of Liability

Our maintenance of insurance as required by this Clause 15 shall not be construed to limit Our liability under this Agreement. If Our insurance coverage is insufficient to cover a claim, We remain liable up to the limits set forth in Clause 11.

15.5 Primacy of Our Insurance

Our insurance shall be primary and non-contributory with respect to any insurance maintained by Customer. Customer's insurance shall be excess and non-contributing.

16. FORCE MAJEURE

16.1 Definition

A "Force Majeure Event" means any act or event that:

  • prevents a party, in whole or in part, from performing its obligations under this Agreement;
  • is beyond the reasonable control of and not the fault of the non-performing party; and
  • the non-performing party has been unable to avoid or overcome by the exercise of due diligence and reasonable efforts.

16.2 Examples of Force Majeure Events

Force Majeure Events include, but are not limited to:

  • acts of God, including fire, flood, explosion, lightning, windstorm, earthquake, subsidence of soil, tsunami, volcanic eruption, or other natural disasters;
  • epidemic, pandemic, disease outbreak, quarantine, or public health emergency;
  • war, invasion, act of foreign enemies, military action (whether war is declared or not), civil war, rebellion, revolution, insurrection, or military or usurped power;
  • riot, civil commotion, strikes, lockouts, or labour disturbances affecting an industry or region (not limited to the non-performing party);
  • acts of terrorism, sabotage, or malicious damage;
  • governmental interference, expropriation, nationalisation, or action of a court or public authority (including changes in law, regulation, or governmental policy);
  • failure or destruction, in whole or in part, of critical infrastructure, machinery, equipment, or materials;
  • failure or interruption of telecommunications networks, internet services, or utility services (power, water, gas) beyond the non-performing party's control;
  • embargoes, severe restrictions on import/export, or blockades; and
  • any other event or circumstance beyond a party's reasonable control, whether or not similar to the foregoing.

The foregoing list is not exhaustive, and the principle of ejusdem generis shall not be applied in determining whether a particular act or event qualifies as a Force Majeure Event.

16.3 Exclusions

Notwithstanding the foregoing, Force Majeure Events do not include:

  • economic hardship, changes in market conditions, or increased costs of performance (unless caused by an event otherwise qualifying as a Force Majeure Event);
  • failure of a party's contractors, suppliers, or subcontractors to perform (unless such failure is itself caused by a Force Majeure Event);
  • lack of funds or inability to pay;
  • events that were reasonably foreseeable and could have been mitigated by reasonable precautions; or
  • events caused by the non-performing party's negligence, willful misconduct, or breach of this Agreement.

16.4 Notice and Mitigation

If a Force Majeure Event occurs:

  • the non-performing party must provide written notice to the other party within five (5) business days after becoming aware of the Force Majeure Event, describing:
    • the nature of the Force Majeure Event;
    • the expected duration;
    • the obligations affected; and
    • the steps being taken to mitigate the effects and resume performance;
  • the non-performing party must use commercially reasonable efforts to mitigate the effects of the Force Majeure Event and to resume performance as soon as reasonably practicable;
  • the non-performing party must provide regular updates (at least every fourteen (14) days) on the status of the Force Majeure Event and its efforts to resume performance; and
  • when the non-performing party is able to resume performance, it must provide written notice to the other party and resume performance within two (2) business days after such notice.

16.5 Effect on Obligations

  • The non-performing party is excused from whatever performance is prevented by the Force Majeure Event to the extent and for the duration that such performance is prevented.
  • The non-performing party remains obligated to perform all obligations not prevented by the Force Majeure Event.
  • The time for performance of obligations prevented by a Force Majeure Event shall be extended by the duration of the Force Majeure Event, plus a reasonable period to resume full performance.

16.6 Fees and Compensation

  • No adjustment of Fees shall be made for Services not performed during a Force Majeure Event, except that Customer shall not be obligated to pay for Services that were not performed due to the Force Majeure Event.
  • If a Proposal includes milestone-based payments, milestones shall be deemed extended by the duration of the Force Majeure Event.
  • Neither party shall be liable to the other for any damages, losses, or penalties arising from failure to perform obligations during a Force Majeure Event.

16.7 Termination Due to Extended Force Majeure

If a Force Majeure Event continues for more than sixty (60) consecutive days, the party not affected by the Force Majeure Event may terminate the affected Proposal(s) upon thirty (30) days written notice to the non-performing party. Upon such termination:

  • Customer shall pay for Services performed and Work Product delivered prior to the Force Majeure Event;
  • We shall refund any prepaid fees for Services not yet performed;
  • neither party shall have any further obligations under the terminated Proposal(s), except for obligations that expressly survive termination; and
  • this Agreement shall remain in effect with respect to any unaffected Proposals.

16.8 Exclusive Remedy

The relief offered by this Clause 16 is the exclusive remedy available to the non-performing party with respect to a Force Majeure Event. A Force Majeure Event shall not excuse either party from its payment obligations for Services already performed or for other obligations not directly prevented by the Force Majeure Event.

17. GENERAL PROVISIONS

17.1 Governing Law

This Agreement and any claims related to it will be governed by and construed in accordance with the laws of Victoria, Australia, without giving effect to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

17.2 Jurisdiction

Any action or proceeding arising from or relating to this Agreement must be brought in the courts of Melbourne, Victoria, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If there is a dispute regarding intellectual property rights, the dispute shall be resolved with regard to the laws of the Commonwealth of Australia.

17.3 Notices

All notices, permissions, approvals, and other communications hereunder must be in English and in writing and will be deemed to have been given:

  • upon personal delivery;
  • on the second business day after mailing by registered or certified mail, return receipt requested;
  • on the second business day after sending by confirmed facsimile transmission; or
  • on the first business day after sending by email with confirmation of receipt.

Notices to Customer shall be sent to the address and contact designated in the applicable Proposal, or as otherwise notified by Customer in writing.

Notices to Us shall be sent to:

Cyder Solutions

ABN 27 879 469 073

383 Wombat Road, Valencia Creek, Victoria, Australia

Email: legal@cyder.com.au

Unless otherwise notified by Customer, notices to Customer will be addressed to the primary contact designated by Customer. Billing-related notices will be addressed to the billing contact designated by Customer.

17.4 Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the authority to bind the other or to incur any obligation on the other's behalf without the other party's prior written consent.

17.5 Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is asserted. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

17.6 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable:

  • such provision shall be interpreted and construed in a way that makes it legal, enforceable, and valid to the fullest extent possible;
  • if such provision cannot be made legal, enforceable, and valid, it shall be severed from this Agreement, but the remainder of this Agreement shall remain in full force and effect; and
  • the parties shall negotiate in good faith to replace such provision with a valid and enforceable provision that achieves, to the greatest extent possible, the original intent and economic effect of the severed provision.

If any provision creates any ambiguity or inconsistency, it must be read in such a way so as best to accomplish the objectives of the original provision to the fullest extent permitted by law.

17.7 Legal Fees

In the event of any legal action or proceeding arising from or related to this Agreement:

  • the prevailing party shall be entitled to recover its reasonable legal fees, costs, and expenses from the non-prevailing party;
  • Customer shall pay on demand all of Our reasonable legal fees and other costs incurred by Us resulting from any breach by Customer of this Agreement; and
  • either party shall be entitled to recover reasonable legal fees and costs incurred in enforcing or attempting to enforce the terms of this Agreement.

17.8 Assignment and Subcontracting

Customer may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including its license to use any Custom Work) to any third party without Our prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.

Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Proposals), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets, provided that:

  • the assignee is not a direct competitor of the other party; and
  • the assignee agrees in writing to be bound by all terms and conditions of this Agreement.

The assigning party shall provide written notice of any such assignment within ten (10) business days after the effective date of the assignment.

Customer acknowledges and agrees that We may subcontract Our obligations under this Agreement and any applicable Proposal, subject to the requirements of Clause 3.1.

17.9 Entire Agreement

This Agreement, including all Proposals and any attachments thereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, and representations, written or oral, concerning its subject matter.

No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either:

  • signed by authorised representatives of both parties; or
  • accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.

To the extent of any conflict or inconsistency between:

  • the provisions in the body of this Agreement and any Proposal or attachment, the provisions of this Agreement shall prevail; and
  • multiple Proposals, the most recently executed Proposal shall prevail with respect to matters addressed in both.

Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer's purchase order or other order documentation (excluding Proposals executed pursuant to Clause 2.2) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.

17.10 Export Compliance

Customer will comply with all applicable export and import control laws and regulations in its use of the Custom Work and the Services. In particular, Customer will not export or re-export the Custom Work or the Services without all required government licenses. Customer agrees to comply with the export laws, restrictions, national security controls and regulations of Australia and all applicable foreign agencies or authorities.

Customer will defend, indemnify, and hold Us harmless from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

17.11 Dispute Resolution

17.11.1 Good Faith Negotiation

Upon any dispute, controversy or claim between the parties relating in any way to this Agreement (except as it relates to a breach of confidentiality obligations under Clause 7, infringement of intellectual property rights under Clause 6, or non-payment of undisputed fees), each party will designate a representative from senior management who (to the extent practicable) does not devote substantially all of his or her time to performance of this Agreement, to attempt to resolve such matter.

The designated representatives will meet (in person, by telephone, or by videoconference) within fourteen (14) days after either party's written request for negotiation and will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days.

17.11.2 Mediation

If the dispute is not resolved through the good faith negotiation process within thirty (30) days, the parties agree to submit the dispute to mediation before resorting to arbitration or litigation. The mediation shall be:

  • conducted by a mutually agreed mediator, or if the parties cannot agree, by a mediator appointed by the Resolution Institute (Australia);
  • conducted in Melbourne, Victoria;
  • governed by the Resolution Institute Mediation Rules; and
  • completed within sixty (60) days of commencement, unless extended by mutual agreement.

Each party shall bear its own costs of mediation, and the parties shall share equally the mediator's fees and expenses.

17.11.3 Arbitration

If the dispute is not resolved through mediation within the sixty (60) day period (or extended period, if applicable), the parties must submit the matter to binding arbitration in Melbourne, Victoria. Such arbitration shall be:

  • conducted in English;
  • conducted by a single arbitrator, independent of both parties, who is skilled in the legal and business aspects of the information technology and business consulting industries;
  • governed by the Resolution Institute Arbitration Rules; and
  • final and binding on both parties.

Any controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.

The arbitrator has no authority to award damages in excess of those permitted in this Agreement (as set forth in Clause 11) for any reason. Any award in excess of such limitation will be deemed void as between the parties.

17.11.4 Interim Relief

Either party may seek any interim or preliminary relief from a court of competent jurisdiction as necessary to:

  • protect the rights or property of that party (or its affiliates, agents, suppliers, and subcontractors);
  • preserve the status quo pending the completion of dispute resolution procedures; or
  • prevent irreparable harm.

Such application for interim relief shall not be deemed a waiver of the obligation to pursue dispute resolution through negotiation, mediation, and arbitration as provided herein.

17.11.5 Costs

The prevailing party in any arbitration or court proceeding shall be entitled to recover its reasonable attorneys' fees, costs, and expenses from the non-prevailing party.

17.11.6 Exceptions

Notwithstanding the foregoing dispute resolution procedures, either party may bring an action in court for:

  • breach of confidentiality obligations under Clause 7;
  • infringement of intellectual property rights under Clause 6;
  • non-payment of undisputed fees;
  • injunctive relief as provided in Clause 7.4; or
  • any matter where time is of the essence and the dispute resolution procedures would cause irreparable harm.

17.12 Amendment of Agreement

We may amend or modify these terms and conditions by providing written notice to Customer at least sixty (60) days prior to the proposed effective date. Any such amendments or modifications will take effect:

  • on the renewal or extension of this Agreement pursuant to Clause 12.1;
  • on the execution of new Proposals after the effective date of the amendments; or
  • as otherwise agreed in writing by the parties.

Amendments will not apply retroactively to Services already contracted for under existing Proposals unless Customer explicitly agrees in writing.

17.13 Interpretation

In this Agreement, unless the context otherwise requires:

  • a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
  • the singular includes the plural and vice versa;
  • a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government or other legal entity;
  • a reference to any gender includes all genders;
  • a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this Agreement;
  • a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
  • a reference to a party is a reference to a party to this Agreement unless otherwise stated;
  • a reference to any party to this Agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
  • a reference to a third party means any person who is not a party to this Agreement;
  • a reference to "dollars" or "$" is to an amount in Australian currency unless otherwise specified;
  • headings are for convenience only and do not affect interpretation;
  • a reference to "including" or similar expressions means "including without limitation";
  • a reference to "writing" or "written" includes email and other electronic communications;
  • where a word or phrase is defined, other grammatical forms of that word or phrase have corresponding meanings;
  • a reference to a "business day" means a day that is not a Saturday, Sunday, or public holiday in Victoria, Australia; and
  • a reference to time is to time in Melbourne, Victoria, Australia.

17.14 No Third-Party Beneficiaries

Nothing expressed or implied in this Agreement or in any Proposal is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.

17.15 Publicity and Use of Name

Neither party shall:

  • issue any press release, make any public announcement, or engage in any advertising or other form of publicity concerning the other party, this Agreement, or the parties' relationship hereunder, without the other party's prior written consent;
  • use or display the other party's name, trademarks, service marks, logos, or other proprietary marks or materials without the other party's prior written consent; or
  • misrepresent or embellish the relationship between the parties or express or imply any relationship or affiliation between the parties except as expressly permitted by this Agreement.

Notwithstanding the foregoing:

  • each party may identify the other as a customer or service provider, respectively, in general lists or directories without prior consent;
  • We may include Customer's name and a general description of the Services provided in Our client list, case studies, and marketing materials, provided such use does not disclose Customer's Confidential Information or misrepresent the scope or success of the engagement; and
  • either party may make disclosures required by applicable law, regulation, or court order, provided the disclosing party provides reasonable advance notice to the other party where legally permissible.

17.16 Counterparts and Electronic Signatures

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Execution may be by physical signature, electronic signature, or digital signature, and all such signatures shall be treated as original signatures and shall have the same legal effect, validity, and enforceability as physical signatures.

17.17 Language

This Agreement has been prepared in English. If this Agreement is translated into any other language, the English language version shall prevail in the event of any inconsistency or dispute regarding interpretation.

17.18 Further Assurances

Each party agrees to execute and deliver such further documents and instruments and to take such further actions as may be reasonably necessary or appropriate to carry out the purposes and intent of this Agreement.

18. ACKNOWLEDGMENT AND ACCEPTANCE

BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT:

  • Customer has read and understands this Agreement;
  • Customer has had the opportunity to seek independent legal advice regarding this Agreement;
  • Customer agrees to be bound by all terms and conditions of this Agreement;
  • Customer has authority to enter into this Agreement on behalf of the legal entity identified as Customer; and
  • This Agreement, together with all executed Proposals, constitutes a legally binding contract between the parties.

SIGNATURES

IN WITNESS WHEREOF, the parties have executed this Master Services Agreement as of the date last signed below.

CYDER SOLUTIONS

Signed: __________________________________

Name: __________________________________

Title: __________________________________

Date: __________________________________

Company: Cyder Solutions

ABN: 27 879 469 073

Address: 383 Wombat Road, Valencia Creek, Victoria, Australia

CUSTOMER

Signed: __________________________________

Name: __________________________________

Title: __________________________________

Date: __________________________________

Company: __________________________________

ABN/ACN: __________________________________

Address: __________________________________

___________________________________________

___________________________________________

END OF MASTER SERVICES AGREEMENT

Document Information

Document Title: Master Services Agreement

Version: 2.0

Effective Date: [To be completed in executed Proposals]

Last Updated: January 2025

Prepared by: Cyder Solutions

ABN: 27 879 469 073

For questions regarding this Agreement, please contact:

Legal Department

Cyder Solutions

Email: legal@cyder.com.au

Business Development

Email: info@cyder.com.au

Web: www.cyder.com.au