Master Services Agreement
Master Services Agreement
This services agreement is made on and from the Commencement Date between:
Leon Joshua Sokolski trading as Atelic Digital of 245 St Kilda Road, St Kilda VIC 3182 (Atelic Digital) and
The Customer specified in the SOW
BACKGROUND:
A. The Customer requires the Services to be provided by Atelic Digital and Atelic Digital agrees to provide the Services.
B. This agreement sets out the terms and conditions on which the Services will be provided.
1. Term
1.1 Commencement
(a) This agreement commences on the Commencement Date and continues until it is terminated in accordance with clause 10.
(b) Where an SOW specifies an alternative Commencement Date or Term for the provision of the Services specified in that SOW, then the Commencement Date and Term specified in the SOW will apply.
1.2 Term of each SOW
(a) Each SOW commences on the Commencement Date specified in that SOW and continues for the term specified in that SOW.
(b) Unless a SOW provides otherwise, a SOW for ongoing or recurring Services continues on a month to month basis until it is terminated in accordance with clause 10.1.
(c) If an SOW is entered into after the expiry of the Term, this agreement will continue to bind the parties in connection with that SOW and all Services and Deliverables supplied under that SOW.
2. Services and Deliverables
2.1 SOW
(a) The parties will enter into a SOW for the Services and each Deliverable and the terms and conditions of this agreement will apply to each SOW once the SOW is signed by the parties.
(b) Except where a SOW states otherwise, the terms of a SOW will prevail over the terms of this agreement to the extent of any inconsistency.
2.2 Scope and Deliverables
(a) Atelic Digital will provide the Services and the Deliverables in accordance with the relevant SOW and this agreement.
(b) In the event that Atelic Digital provides Services and/or Deliverables prior to the parties entering into a SOW, the terms of this agreement will apply to the provision of those Services and/or Deliverables.
2.3 Change Requests
(a) For the purposes of this agreement, a Change Request is a written request by the Customer for an amendment to the Services, Deliverables or any other term of an SOW, together with such information as is reasonably necessary to enable Atelic Digital to consider the request.
(b) Atelic Digital must provide a written estimate of all costs (if any) for the amended or additional Services or Deliverables set out in the Change Request, and of any resulting impact on the timeframes or milestones specified in the relevant SOW, within five Business Days of receipt of the Change Request.
(c) Atelic Digital will determine, acting reasonably and having regard to the time, testing and development involved, whether a Change Request is a small improvement, a new feature or major change.
(d) Atelic Digital is not required to commence work on the amended or additional Services or Deliverables set out in a Change Request, and the Customer is not required to pay for it, until the Customer has accepted the estimate provided under clause 2.3(b) in writing.
2.4 Consulting Services
If Atelic Digital is required to deliver consulting Services (whether prior to the parties entering into a SOW or as a Deliverable), or it is not practical for the parties to enter into a SOW for whatever reason, those consulting Services will be provided and invoiced as agreed between the parties in writing. For the avoidance of doubt:
(a) exchange of email correspondence between the parties; or
(b) any fee proposal, quote, or other written document,
wherein the consulting Services and price are agreed constitute agreement in writing for the purposes of this clause.
2.5 Acceptance Testing
(a) If and as specified in a SOW, the parties will conduct testing of the Deliverables to confirm that each Deliverable conforms with the Acceptance Criteria. If applicable, each SOW will set out the Acceptance Criteria, or the method of determining the Acceptance Criteria.
(b) If the testing demonstrates that one or more of the Deliverables materially fails to meet the Acceptance Criteria, the Customer must within seven days of completion of the testing, give Atelic Digital written notice including details of the Defective Deliverable.
(c) If the Customer gives Atelic Digital notice under clause 2.5(b), Atelic Digital may at its discretion choose to do one or more of the following:
(i) rectify any failure, either by modifying or resupplying the Deliverable(s), in which case further testing may be conducted in accordance with this clause 2.5; or
(ii) pursue such compromise regarding acceptance as the parties may agree in writing from time to time.
(d) A Deliverable will be deemed to have been accepted if:
(i) a SOW states that testing is not required for that Deliverable, in which case acceptance will be deemed three Business Days following delivery, unless the Customer notifies Atelic Digital of a failure or any other issue of concern with that Deliverable; or
(ii) the Customer does not give Atelic Digital a written notice pursuant clause 2.5(b) within the specified timeframe.
2.6 Service Levels
(a) Atelic Digital must meet or exceed the Service Levels (if any).
(b) In deciding whether Atelic Digital has complied with its obligations under clause 2.6(a) or any other timeframe, timeline or milestone, the parties must disregard a failure during any period when Atelic Digital:
(i) is impeded or delayed due to an act or omission of the Customer precluding the delivery of the Services and/or Deliverables.
(ii) has given the Customer reasonable advance notice of not less than 10 Business Days of any period of leave, and such period of leave will not count towards any timeframe or timeline specified in a SOW or otherwise agreed between the parties.
3. Compensation
3.1 Fees
(a) Subject to clause 2.5, Atelic Digital’s Fees for the Services and Deliverables provided to the Customer will be set out in the relevant SOW. The Customer must pay Atelic Digital the Fees, plus GST at the then prevailing GST rate, at the intervals set out in the relevant SOW. Atelic Digital must issue an invoice to the Customer setting out the Fees in accordance with the relevant SOW. The Fees must be paid within 30 days of Atelic Digital providing the relevant invoice to the Customer. Invoices sent electronically will be considered ‘received’ on the day that the invoice is emailed to the Customer. If the Customer fails to pay any part of an invoice to Atelic Digital by the due date, Atelic Digital may charge daily interest on the outstanding amount for each day that it is outstanding at the rate of 12% per annum.
(b) Where a SOW specifies recurring Fees, those Fees are payable monthly in advance, and the first payment is due on the Commencement Date specified in that SOW.
(c) If a SOW specifies that Fees are payable by direct debit or by card, the Customer must complete and maintain a valid payment authority in favour of Atelic Digital and must promptly notify Atelic Digital of any change to its payment details. Atelic Digital may debit the Fees on or after the due date in accordance with that authority.
3.2 Suspension
(a) Atelic Digital may suspend the provision of the Services under a SOW if an amount payable by the Customer under that SOW remains unpaid after its due date and the Customer fails to pay that amount within seven days after Atelic Digital gives the Customer written notice of the non-payment.
(b) Atelic Digital must reinstate the suspended Services within two Business Days after the outstanding amount is paid in full.
(c) Atelic Digital is not liable for any downtime, security vulnerability, failed update, data loss or other Loss suffered by the Customer during a period of suspension under clause 3.2(a), other than to the extent that it is caused by Atelic Digital’s negligence or breach of this agreement.
(d) If an amount payable by the Customer remains unpaid for 30 days or more after its due date, Atelic Digital may terminate this agreement or the relevant SOW by written notice to the Customer.
4. Parties’ Obligations
(a) Atelic Digital:
(i) must ensure that its Personnel involved in delivering the Services are fully qualified and reasonably competent and are registered with any relevant body required by Law to carry out the duties, tasks and work to which they are assigned efficiently and competently;
(ii) will be solely responsible for arranging and bearing the cost of all permits, licences and other authorisations required to enable its Personnel to perform the Services; and
(iii) will be solely responsible for the payment of all salaries, bonuses, benefits, payroll tax, superannuation and all other compensation payable to its Personnel.
(b) Atelic Digital must ensure that its Personnel:
(i) do not use the Customer’s premises or any of the facilities provided by the Customer for any purpose other than for the purpose of performing their obligations as set out in this agreement;
(ii) observe all internal regulations and rules applicable to the Customer’s own staff (provided that copies of such internal rules and regulations have been provided to Atelic Digital by the Customer) and at all times conduct themselves in a professional manner;
(iii) observe and comply with all firewall, virus protection and system integrity policies and requirements notified by the Customer to Atelic Digital; and
(iv) protect security passes issued to them and return those passes to the Customer on request or once performance of their obligations are complete.
(c) The Customer must:
(i) provide Atelic Digital’s Personnel with security access to the Customer’s premises where required or any other premises of the Customer required to carry out and perform the Services; and
(ii) ensure that the Customer’s premises and any other premises of the Customer which Atelic Digital’s Personnel are required to attend is safe and complies with all relevant occupational health and safety Laws and regulations.
(d) Neither party must, and both parties must procure their related entities, parties and associates not to:
(i) during the Term of this agreement or within 12 months after termination of this agreement, without the other party’s prior written consent, employ or engage the other party’s Personnel or solicit, canvas, induce or encourage the other party’s Personnel, to leave engagement, appointment or employment with that party, whether or not that person would commit a breach of that person’s obligations to that party; and
(ii) discriminate, harass or engage in any other conduct that would result in the other party breaching a workplace Law.
(e) The Customer must provide to Atelic Digital, at the Customer’s cost and by the dates specified in the relevant SOW:
(i) all Customer Materials required by Atelic Digital to perform the Services;
(ii) timely access to each third party service, platform or account required to perform the Services, including domain registrars, hosting accounts, content management systems, customer relationship management platforms and analytics tools; and
(iii) all approvals, feedback and instructions reasonably required by Atelic Digital to progress the Services.
(f) If the Customer does not provide the Customer Materials by the date required, Atelic Digital may:
(i) use placeholder content and continue to perform the Services;
(ii) treat any resulting delay or additional cost as the subject of a Change Request under clause 2.3.
(g) The Customer acknowledges that in providing the Services, Atelic Digital will be relying upon the Customer Materials provided to it.
(h) Atelic Digital will not be liable for any Defect or delay in the provision of the Services to the Customer, if such Defect or delay:
(i) is caused by Atelic Digital’s reliance upon inaccurate or incomplete Customer Materials; or
(ii) is caused by the Customer failing to respond to a request by Atelic Digital (including a request for Customer Materials or other information) within a reasonable period.
(i) The Customer hereby indemnifies Atelic Digital from and against any Claim made by or against the Customer or Loss suffered by Atelic Digital arising out of or in connection with the Services, if such Claim or Loss is caused or contributed by the Customer’s failure to provide Atelic Digital with full, complete and accurate information, data or resources (including Customer Materials).
(j) The Customer warrants that it owns, or is licensed to use, all Customer Materials, and that the Customer Materials and the content of any website to which the Services relate (including its terms of use, privacy policy and other legal notices) comply with all applicable Laws.
(k) The Customer is solely responsible for registering, maintaining and renewing each domain name used in connection with a website, and for maintaining any third party platform subscription required for that website to remain available, unless a SOW expressly provides otherwise.
(l) Atelic Digital is not liable for any downtime, data loss or degraded performance to the extent that it is caused by:
(i) a lapsed, expired, cancelled or downgraded domain name registration or third party platform subscription; or
(ii) an outage, suspension, change or failure of a third party service, including a hosting infrastructure provider, domain registrar, DNS provider, content delivery network, payment gateway, or Third Party Software or application programming interface.
(m) Atelic Digital must take reasonable steps to notify the Customer of an outage described in clause 4(l)(ii) and of its estimated resolution, as information becomes available from the relevant provider.
5. Confidentiality and Privacy
5.1 Access to Confidential Information
(a) During the Term of this agreement:
(i) the Customer must, and must procure its Personnel to, grant access to its Confidential Information to Atelic Digital and Atelic Digital’s Personnel to the extent that it is necessary for Atelic Digital and Atelic Digital’s Personnel, to perform their obligations in accordance with this agreement; and
(ii) Atelic Digital will, and will procure its Personnel to, grant access to the Confidential Information of Atelic Digital to the extent that it is necessary for the Customer to perform its obligations in accordance with this agreement.
5.2 Obligation of confidentiality
(a) Each party must:
(i) unless otherwise required by law, keep any Confidential Information of the other party in strict confidence for the Term and for a period of 3 years following termination of this agreement, acknowledging it to be the valuable property of the other party;
(ii) take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information of the other party;
(iii) not copy, use or allow any person to copy or use, the Confidential Information of the other party, without the prior written consent of the other party, for any purpose other than the purpose of the performance of its obligations in accordance with this agreement;
(iv) not, except in the ordinary and proper performance of its obligations under this agreement, disclose Confidential Information of the other party to any third party, without the prior written consent of the other party;
(v) not allow any unauthorised person to have access to places where Confidential Information of the other party is displayed, reproduced or stored; and
(vi) not remove, delete, erase or destroy any Confidential Information of the other party without the prior written consent from that other party.
(b) Each party may disclose to its Personnel whose duties reasonably require such disclosure, the Confidential Information of the other party on condition that the party making such disclosure ensures that each such person to whom such disclosure is made is informed of the obligations of confidentiality and remains responsible for the compliance of each such person with this clause 5.2.
5.3 Permitted disclosure of Confidential Information
(a) Each party may disclose Confidential Information of the other party if it is required by Law to disclose that information (subject to clauses 5.3(b) and 5.3(c)).
(b) Each party must notify the other party in writing immediately after it, or its Personnel, is required to disclose the Confidential Information of the other party and before it, or its Personnel, discloses any Confidential Information of the other party.
(c) If a party, or its Personnel, is required to make a disclosure of Confidential Information of the other party, the party must, and must ensure that its Personnel, disclose only the minimum information required to comply with the Law.
5.4 Security of Confidential Information
The parties must maintain effective security measures, including a data breach response plan, to protect all Confidential Information from theft, loss, damage or unauthorised access, use or disclosure.
5.5 Privacy Obligations
(a) If, and to the extent that, any of the Confidential Information disclosed by a party to the other party contains any Personal Information as defined in the Privacy Act 1988 (Cth) (the Act), the receiving party of that Confidential Information must:
(i) not collect, use, disclose, destroy or otherwise deal with Personal Information in a manner that would breach the Act, an Australian Privacy Principle specified in the Act and any applicable Approved Privacy Code;
(ii) take reasonable steps to implement practices, procedures and systems relating to its functions and activities which are consistent with Australian Privacy Principles specified in the Act and any applicable Approved Privacy Code; and will enable it to deal with enquiries and complaints about its compliance with the Act;
(iii) take reasonable steps to protect the Personal Information it holds from misuse, interference, and loss, and unauthorised access, modification or disclosure;
(iv) immediately notify the other party if it becomes aware of any misuse, loss, unauthorised access or disclosure of Personal Information, or of any complaint or investigation; and
(v) not disclose personal information outside Australia and/or for a purpose other than the primary purpose of its collection, unless prior written consent has been obtained from the relevant person concerned, the other party has been duly notified, and the above obligations been complied with.
5.6 Data breach response
(a) If a party becomes aware of actual or suspected unauthorised access to, unauthorised disclosure of, or loss of, Personal Information or Confidential Information held by it in connection with the Services, it must notify the other party as soon as practicable and in any event within 24 hours.
(b) The notification must include, to the extent known, the date, time and cause of the incident, the kinds of information involved, the steps taken and proposed to contain and remediate the incident, and the notifying party’s assessment of whether the incident is an eligible data breach for the purposes of Part IIIC of the Privacy Act 1988 (Cth).
(c) The parties must cooperate in good faith to investigate and remediate the incident and must preserve all evidence relevant to it.
(d) Neither party may make a notification to the Office of the Australian Information Commissioner, or to an affected individual, on behalf of the other party unless the other party expressly directs it to do so in writing.
5.7 Media Releases
(a) The Customer must not issue any information, publication, document or article for publication concerning the Services in any media without the prior written approval of Atelic Digital, who may place conditions on such approval.
(b) Atelic Digital may use the Customer’s name, logo, branding and information (excluding Confidential Information) in case studies and in its advertising and marketing, including on social media.
6. Intellectual Property Rights
6.1 Background IP
(a) Unless specified to the contrary in a SOW, Atelic Digital will retain all rights, title and interest in and to the Background IP.
(b) Nothing in this agreement affects Atelic Digital’s ownership, rights and title to the Background IP used to provide the Services except that, unless the Parties specifically agree to the contrary in writing, Atelic Digital hereby grants to the Customer an irrevocable, royalty free, perpetual, non-exclusive, right to use, modify, adapt, enhance, and develop the Background IP contained in any Deliverable for the purposes of conducting the Customer’s business.
6.2 Foreground IP
(a) Unless specified to the contrary in a SOW, Atelic Digital hereby irrevocably assigns to the Customer all right, title and interest Atelic Digital may have in and to the Foreground IP and Atelic Digital agrees to take all steps reasonably required by the Customer and at the Customer’s cost to perfect the Customer’s Intellectual Property Rights in relation to the Foreground IP.
(b) Nothing in the foregoing is intended to restrict, or must be construed as restricting, Atelic Digital from deriving an economic benefit from any know-how or knowledge gained through delivering the Services and Deliverables under this agreement.
6.3 Residual Rights
(a) The parties acknowledge and agree that Atelic Digital is in the business of providing services, consulting services, and support services to third parties that are or may be substantially similar to the Services being provided to the Customer under this agreement.
(b) Notwithstanding clause 6.2, the Customer agrees that Atelic Digital, its employees, and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalised ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any Services performed or Deliverables provided under this agreement.
6.4 Third Party Software
Unless specified to the contrary in a SOW, any Third Party Software that is made available to the Customer as part of the Services or Deliverables will be made available strictly on the basis of that Third Party Software provider’s licence terms and conditions and the Customer will enter into a licence agreement with the Third Party Software provider as may be required by that Third Party Software provider.
6.5 Plugin and theme licences
(a) Where a SOW includes the maintenance or support of a website, the Customer must ensure that valid and current licences are held for all premium plugins, themes and other Third Party Software used on that website, unless the SOW states that Atelic Digital will provide those licences.
(b) Atelic Digital is not required to apply updates to, or to support, unlicensed Third Party Software, and must notify the Customer where a licence is missing or has expired.
6.6 Output from AI Tools
(a) The Customer acknowledges that:
(i) the output generated from an AI Tool (AI Output) may contain errors, inaccuracies or content that is not appropriate for the Customer’s specific circumstances;
(ii) AI Output should be reviewed and verified by the Customer before being relied upon;
(iii) Atelic Digital does not warrant that AI Output is free from error; and
(iv) the Customer retains full responsibility for any decisions made or actions taken in reliance on AI Output delivered as part of a Service or Deliverable.
(b) To the maximum extent permitted by Law, Atelic Digital will not be liable for any Loss or Claim arising out of or in connection with Atelic Digital or the Customer’s use of or reliance on Third Party Software or AI Output, except to the extent that such Loss is caused by or contributed to by an act or omission of Atelic Digital.
6.7 Excluded Work Results
If a SOW specifies that there are any ‘Excluded Work Results’, Atelic Digital retains all Intellectual Property Rights in and to the Excluded Work Results and does not assign the Intellectual Property Rights in the Excluded Work Results to the Customer.
6.8 Customer’s rights
Nothing in this agreement will:
(a) affect the Customer’s ownership of the Customer’s Intellectual Property Rights, ideas, concepts and/or know-how; or
(b) be construed as transferring, granting, or otherwise dealing with, or having the effect of transferring, granting, or otherwise dealing with, any rights in the Customer’s Intellectual Property Rights, ideas, concepts and/or know-how to any other party, (whether such Intellectual Property Rights, ideas, concepts and/or know-how exists prior to the Commencement Date or comes into existence after the Commencement Date) in any manner whatsoever.
6.9 Independent Development
The Customer acknowledges that Atelic Digital may create original works for third parties that may appear similar to the Deliverables. The Customer agrees that, so long as such original work is created through use of the Background IP and does not embody and is not created with the Customer’s Confidential Information or the Foreground IP, Atelic Digital will not be prevented from independently creating such original, but similar, works for the benefit of third parties.
6.10 Noninfringement
In performing its obligations under this agreement, Atelic Digital will avoid infringement of any patent, copyright, or trade mark, or the disclosure of any trade secret or other confidential and proprietary information or material of any third party. Atelic Digital represents and warrants that the Customer’s use and exploitation of the Deliverables will not be constrained by patents or any other Intellectual Property Rights of others.
6.11 Consequences of infringement
In the event the Deliverables include information or materials to which third parties have any rights, whether by patent, copyright, trade mark, trade secret or otherwise (“Other Materials”), Atelic Digital will, without expense to the customer and in Atelic Digital’s sole discretion either:
(a) obtain written permission from the relevant third party to include such Other Materials in the Deliverables; or
(b) modify the relevant Deliverable so as not to incorporate the Other Materials.
7. Warranties
7.1 Limited Warranty
In addition to any rights the Customer may have under any Laws, which cannot be excluded or limited, Atelic Digital warrants that:
(a) the Services will be performed in a professional and workmanlike manner by Atelic Digital’s Personnel having a level of skill commensurate with the requirements of this agreement; and
(b) the Deliverables (if any) will substantially conform to the specifications set out in the relevant SOW. If a Deliverable is non-conforming to the specifications set out in the relevant SOW, and the Customer gives Atelic Digital written notice of the non-conformity within 10 Business Days after delivery of that Deliverable, (or pursuant to clause 2.5(b) if that Deliverable is subject to testing) Atelic Digital will correct the non-conformity promptly and at Atelic Digital’s cost or pursuant to such compromise regarding the non-conformity as the parties may agree in writing from time to time, which will be the Customer’s sole remedy in relation to such non-conformity.
7.2 No warranty
Except as expressly set out in these terms and conditions (but subject to any non-excludable law or regulation), Atelic Digital makes no warranty whatsoever in relation to the Services and/or Deliverables.
8. Independent Service Provider
8.1 Control
(a) Atelic Digital will determine the time, place, methods, details and means of performing the Services.
(b) The Customer agrees to furnish access to any Customer facilities, Personnel, information (including Confidential Information), intellectual property, data, resources and equipment necessary to facilitate Atelic Digital’s performance of the Services but Atelic Digital will be responsible to provide the tools, know-how and equipment used to deliver the Services.
(c) The Customer must ensure that all information provided to Atelic Digital is accurate and complete in every particular.
8.2 Customer’s acknowledgements
(a) The Customer acknowledges that:
(i) in providing the Services, Atelic Digital will be relying upon the information, data, intellectual property and resources provided to it by the Customer;
(ii) Atelic Digital will not be responsible for any advice given, conclusions reached or recommendations made if such advice, conclusion or recommendation is given by Atelic Digital in reliance upon inaccurate or incomplete information, data or resources relating to the Customer’s business; and
(iii) it hereby indemnifies Atelic Digital from and against any Claim made by or against the Customer or Loss suffered by Atelic Digital arising out of or in connection with the Services, if such Claim or Loss is caused or contributed by the Customer’s failure to provide Atelic Digital with full, complete and accurate information.
9. Limitation of Liability
9.1 General
To the extent permitted by law, Atelic Digital’s cumulative liability to the Customer for all claims made by the Customer arising under or in relation to this agreement, will not exceed, when aggregated, the total Fees paid by the Customer under the relevant SOW in the 12 month period immediately preceding the first event giving rise to the liability.
9.2 Non-excludable terms
If a non-excludable term, condition, guarantee, or warranty applies to this agreement by operation of an applicable law (including the Australian Consumer Law), then to the maximum extent permitted by law the liability of Atelic Digital for breach of such term, condition, guarantee or warranty will be limited to (at Atelic Digital’s election):
(a) supplying the Services again; or
(b) paying the cost of having the Services supplied again.
9.3 Consequential loss
Atelic Digital will not be liable for any loss, damage, liability, cost, expense, consequential loss, loss of profits, loss of opportunity or any like claims whatsoever arising out of or connection with:
(a) this agreement;
(b) the provision of the Services; or
(c) the Customer’s use of the Services.
10. Termination
10.1 Termination for convenience
(a) Either party may terminate a SOW for ongoing or recurring Services by giving the other party 30 days’ written notice.
(b) Either party may terminate this agreement by giving the other party 30 days’ written notice, but this agreement continues to apply to each SOW that is on foot at the date of that notice until that SOW expires or is terminated.
10.2 Termination for Breach
(a) Either party may immediately terminate this agreement if the other party:
(i) breaches this agreement or an SOW and does not remedy that breach within a reasonable time after it is notified of the breach;
(ii) becomes Insolvent;
(iii) is convicted of an indictable offence (or an officer thereof is convicted of an indictable offence);
(iv) commits any act which materially and/or detrimentally affects the other party, including but not limited to an act of dishonesty, fraud, wilful disobedience or misconduct; or
(v) does anything which in the reasonable opinion of the other party, is likely to bring the other party into disrepute or may otherwise have an adverse effect on the other party’s reputation.
(b) A breach of a SOW is deemed to be a breach of this agreement and vice versa.
10.3 Final Invoice
(a) If this agreement is terminated for whatever reason then, within fourteen (14) days from the date of termination, Atelic Digital will submit to the Customer an itemised invoice for any fees or expenses accrued but unpaid until the date of termination of this agreement.
(b) Notwithstanding any provision to the contrary contained in this agreement, no Intellectual Property Rights will transfer to the Customer unless and until Atelic Digital’s invoices, which have been duly rendered in accordance with the terms of this agreement and the relevant SOW, have been paid in full.
10.4 Consequences of termination
On termination or expiry of this agreement:
(a) the parties must:
(i) immediately cease all use and disclosure of the other party’s Confidential Information; and
(ii) if there are any other materials of the other party in the possession or control of a party (or in the possession or control of its Personnel) which contain any Confidential Information of the other party or any information derived from that information, either:
(A) deliver up those materials to the other party; or
(B) delete or destroy entirely and permanently those materials or the Confidential Information of the other party or any information derived from that information contained in those materials and notify the other party in writing of such destruction;
(b) the Customer must pay for:
(i) all work done up to the termination of this agreement; and
(ii) any third party costs unavoidably incurred by Atelic Digital as a result of the termination by the Customer of this agreement provided that those costs are substantiated by third party invoices or other evidence reasonably acceptable to the Customer.
(c) If the Customer terminates a SOW or this agreement after Atelic Digital has commenced work (unless the SOW or agreement has been validly terminated pursuant to clause 10.1), the Customer will forfeit any amounts already paid as liquidated damages.
(d) The Customer acknowledges and agrees that the liquidated damages payable under clause 10.4(c) is a genuine pre-estimate of the loss and damage that Atelic Digital stands to suffer or incur as a result of the termination of the relevant SOW or this agreement.
10.5 Transition assistance
(a) On termination or expiry of a SOW for website support, hosting or managed services, Atelic Digital must, within 14 days after the date of termination or expiry, provide the Customer with:
(i) a full export of the website files;
(ii) an export of the website database;
(iii) all login credentials and access details for the website and for each associated service managed by Atelic Digital on the Customer’s behalf; and
(iv) a summary of the active plugins, themes, integrations and configuration of the website.
(b) Atelic Digital must provide reasonable assistance to enable an orderly transition of the Services to the Customer or to a replacement provider.
(c) Atelic Digital’s obligations under this clause are subject to payment in full of all undisputed invoices issued under this agreement.
10.6 Rights on termination
Termination of this agreement will not limit either party from pursuing other remedies available to it, including injunctive relief. The parties’ rights and obligations under clauses 5 (Confidentiality), 6 (Intellectual Property Rights), 8 (Independent Service Provider), 9 (Limitation of Liability), and 11 (General) will survive termination of this agreement.
10.7 Continuation of this agreement
The rights and obligations under this agreement which have accrued prior to the date of expiration or termination of this agreement will continue in force, until the Services have been provided, notwithstanding that this agreement is no longer in force.
11. General
11.1 Assignment
(a) Neither party may assign the agreement without the other party’s consent.
(b) Notwithstanding the foregoing, either party may assign this agreement to a wholly owned subsidiary or in connection with a restructure, merger, acquisition, or sale of all or substantially all of its assets without the other party’s prior written consent.
11.2 Waiver
(a) The failure of either party at any time to require performance by the other party of any provision of this agreement does not affect the party’s right to require the performance at any time.
(b) The waiver by either party of a breach of any provision of this agreement may not be held to be a waiver of any later breach of the provision or a waiver of the provision itself.
11.3 Applicable Laws
This agreement will be construed according to the Laws of Victoria, Australia and the parties submit to the jurisdiction of the Courts of Victoria, Australia.
11.4 Severance
If any provision of this agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision may be severed to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this agreement.
11.5 Further Assurances
Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers all deeds, documents, instruments and acts reasonably required of it or them by notice from the other party to carry out and give full effect to this agreement and the rights and obligations of the parties under it.
11.6 Counterparts
This agreement and any SOW may be executed in several counterparts, all of which when taken together constitute one and the same instrument. The exchange of an executed agreement or SOW (in counterpart or otherwise) electronically and by email will be sufficient to bind the parties to the terms and conditions of this agreement and the relevant SOW.
11.7 Costs
Each party will be responsible for their own costs incurred in the preparation and execution of this agreement.
11.8 Entire agreement
This agreement constitutes the entire agreement between the Parties in relation to its subject matter. No understanding, arrangement or provision not expressly set out in this agreement will bind the Parties.
11.9 Variation
No change or modification of this agreement will be valid unless made in writing and signed by both Parties.
11.10 Notices
(a) A notice under this agreement must be in writing and sent to the address or email address of the party set out in this agreement or the relevant SOW, or to any other address notified in writing by that party.
(b) A notice is taken to be received:
(i) if delivered by hand, on delivery;
(ii) if sent by post, three Business Days after posting; and
(iii) if sent by email, at the time the email enters the recipient’s information system, unless the sender receives an automated message that the email was not delivered.
(c) A notice received after 5.00pm, or on a day that is not a Business Day, is taken to be received at 9.00am on the next Business Day.
11.11 Force Majeure
(a) Neither party is liable for any delay in, or failure to perform, its obligations under this agreement (other than an obligation to pay money) to the extent that the delay or failure is caused by a Force Majeure Event.
(b) The affected party must notify the other party as soon as practicable and must use reasonable endeavours to mitigate the effect of the Force Majeure Event and to resume performance.
(c) If a Force Majeure Event continues for more than 30 days, either party may terminate the affected SOW by written notice to the other party.
11.12 Dispute Resolution
(a) A party must not commence proceedings in relation to a dispute arising out of or in connection with this agreement, other than proceedings for urgent interlocutory relief, unless it has complied with this clause 11.12.
(b) A party claiming that a dispute has arisen must give the other party written notice of the dispute setting out its nature and the outcome sought.
(c) Within 10 Business Days after that notice, a senior representative of each party must meet and use reasonable endeavours to resolve the dispute.
(d) If the dispute is not resolved within 20 Business Days after the notice, the parties must refer the dispute to mediation administered by the Resolution Institute in accordance with its mediation rules, and must share the cost of the mediator equally.
12. Definitions
In this agreement:
(a) Acceptance Criteria means any standards or specifications or other requirements for the Deliverables and Atelic Digital’s performance of its obligations set out in this agreement or a SOW;
(b) AI Tool means a tool provided by a third party that uses computers or other technology to do things that have traditionally been done using human intelligence and includes techniques, methods and algorithms designed to imitate human reasoning, learning and decision making in a manner that resembles human intelligence;
(c) Background IP means:
(i) any Intellectual Property Right in or to any components of the Foreground IP which existed prior to the commencement of the Services provided under the relevant SOW;
(ii) any Intellectual Property Rights in or to any materials which existed prior to the commencement of the Services provided under the relevant SOW or from which the Foreground IP was derived from the provision of such Services and includes, without limitation, Atelic Digital’s methodologies, tools, processes, tests, know-how and proposals;
(d) Business Day means Monday to Friday, excluding public holidays in Melbourne, Victoria;
(e) Claim means any claim, demand or cause of action whether arising in contract, tort, under statute or otherwise;
(f) Commencement Date means the date that the last party signs this agreement;
(g) Confidential Information means, in relation to each party (for the purposes of this definition, the “Discloser”):
(i) all information relating to or owned or used by the Discloser or any of its Related Bodies Corporate, including know-how, trade secrets, ideas, marketing strategies and operational information;
(ii) all information concerning the business affairs (including products and services) or property of the Discloser or any of its Related Bodies Corporate, including any business, property or transaction in which the Discloser or any of its Related Bodies Corporate may be or may have been concerned or interested;
(iii) any other information disclosed by or on behalf of the Discloser or any of its Related Bodies Corporate; and
(iv) the Discloser’s data, including any such information made available to the Discloser or any of its Related Bodies Corporate by any third party, but excluding any information: (i) which is publicly known or becomes publicly known other than by breach by the other party or any other obligation of confidentiality; (ii) which is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or (iii) is developed independently by the other party without reliance on or use of any of the Discloser’s Confidential Information;
(h) Customer Materials means all content, data, materials, logos, brand guidelines, photographs, video, text, business information, account credentials and other information provided by the Customer, or on the Customer’s behalf, to Atelic Digital for the purposes of the Services;
(i) Defect or Defective means an aspect of a Service or Deliverable that does not comply with the Acceptance Criteria or has a defect, error, fault, malfunction or omission;
(j) Deliverables means the deliverables which Atelic Digital agrees to provide to the Customer under a SOW;
(k) Excluded Work Results means any Excluded Work Results which have been so specified in a SOW; and any computer software or program development tool not included in the Foreground IP, which Atelic Digital uses to perform the Services;
(l) Fee means the fee payable by the Customer to Atelic Digital as specified in a relevant SOW or otherwise agreed in writing between the parties;
(m) Force Majeure Event means an event beyond the reasonable control of a party, including a natural disaster, fire, flood, pandemic or epidemic, act of war or terrorism, riot, civil commotion, strike or other industrial action (other than industrial action involving that party’s own Personnel), act of a government authority, and a failure or outage of a telecommunications network, internet service, electricity supply or third party hosting infrastructure;
(n) Foreground IP means the Intellectual Property Rights that are created by Atelic Digital in all Deliverables and other things produced or developed by Atelic Digital in the performance of the Services under this agreement and a SOW, excluding any Excluded Work Results;
(o) GST means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth of Australia;
(p) Insolvent means a party:
(i) becomes insolvent within the meaning of the Corporations Act 2001 (Cth);
(ii) is placed into liquidation, administration, or has a receiver or manager appointed in respect of its assets;
(iii) enters into an arrangement or composition with its creditors;
(iv) commits an act of bankruptcy; or
(v) becomes bankrupt within the meaning of the Bankruptcy Act 1966 (Cth);
(q) Intellectual Property Rights means any rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights;
(r) Law includes any law, statute, regulation, ordinance, authorisation, ruling, judgement and any other order or decree of any governmental agency in any jurisdiction;
(s) Loss means any liability, cost or expense suffered or incurred by a party (whether actual or contingent);
(t) Personal Information has the same meaning as defined in the Privacy Act 1988 (Cth) “information or an opinion about an identified individual, or an individual who is reasonably identifiable whether the information or opinion is true or not; and whether the information or opinion is recorded in a material form or not”;
(u) Personnel means all employees, officers contractors and subcontractors of a party and its related entities;
(v) Related Bodies Corporate has the same meaning ascribed to that term in the Corporations Act 2001 (Cth);
(w) Service Credits means an amount by which a Fee is adjusted pursuant to the mechanism described in a SOW, in the event that Atelic Digital does not meet the Service Levels;
(x) Service Levels means the minimum standards in respect of a service or Deliverable as described in a SOW;
(y) Services means the Services to be provided by Atelic Digital to the Customer as set out in the relevant SOW or as otherwise agreed between the parties in writing;
(z) SOW means a statement of work setting out the description of the engagement including the scope of Services and/or Deliverables to be provided and the Fees;
(aa) Third Party Software means any third party software forming part of a Deliverable or any third party software in relation to which Atelic Digital provides the Services (for example, integration Services), and includes, without limitation, open source code;
(bb) Term means the term of this agreement as specified in clause 1; and
(cc) Termination Date means the date on which this agreement is terminated in accordance with the terms and conditions of this agreement.
