Table of Contents:
1. Agreement and Priority
2. Related Companies
3. Services
4. Customer Obligations
5. Mutual Obligations
6. Review and Acceptance of Deliverables
7. Charges
8. Payment and Invoices
9. Equipment and Products
10. Governance
11. Audits and Records
12. Request for Statement of Work or Change Control
13. Confidential Information
14. Privacy
15. Announcements
16. Intellectual Property Rights
17. Dispute Resolution
18. Liability
19. Force Majeure
20. Insurance
21. Term and Termination
22. Disengagement
23. Effect of Termination
24. Continuing Obligations
25. Waiver and Forbearance
26. Assignment and Subcontracting
27. No Agency
28. Protection of Business
29. Entire Agreement
30. Severability
31. Costs and Expenses
32. Counterparts
33. Mitigation
34. Notices
35. Governing Law and Jurisdiction
AA. Definitions and Interpretation
1. Agreement and Priority
1.1 By signing this Agreement or any Statement of Work, or otherwise formally engaging ASV and allowing ASV or its Related Companies to provide services to the Customer, both parties have entered into a legally binding agreement on the basis of this Agreement.
1.2 This Agreement includes all signed Statements of Work related to it.
1.3 To the extent of any conflict or inconsistency between different parts of the Agreement, a Statement of Work has priority over the Agreement, with a later Statement of Work having priority over any earlier Statement of Work.
2. Related Companies
2.1 If a party’s Related Company signs a Statement of Work, that Statement of Work will form part of this Agreement.
2.2 If a Related Company of the Customer signs that Statement of Work, ASV will provide the Services and perform its other obligations under this Agreement (as they relate to the Statement of Work) directly to that Related Company instead of the Customer.
2.3 If a Related Company of ASV signs that Statement of Work, that Related Company will provide the Services and perform its other obligations under that Statement of Work to the Customer (or, if applicable, Related Company of the Customer).
2.4 Each party is responsible for the acts and omissions of its Related Companies under this Agreement.
2.5 Only ASV or the Customer (not their respective Related Companies) may enforce the rights and remedies under this Agreement. ASV or the Customer may bring a claim under this Agreement for Loss suffered by their Related Company (including under an indemnity) without having incurred that Loss itself.
2.6 Each party’s Related Companies and, in the case of ASV, third parties whose Products and services ASV resells, may receive the benefit of this Agreement. In the case of ASV, each of ASV’s Related Companies may perform any obligation of ASV or its Related Companies under this Agreement.
2.7 Except as set out in this clause 2 or in a Statement of Work, this Agreement does not give any benefit to, and is not enforceable by, a third party that is not a Related Company of a party.
3. Services
3.1 ASV will provide the Services to the Customer during the term of the relevant Statement of Work.
3.2 When providing the Services to the Customer, ASV will:
(a) ensure the Services substantially meet the Requirements;
(b) complete the Services (or the relevant part of the Service) materially within the timeframes for completion set out in the relevant Statement of Work; and
(c) ensure the Services meet or better the relevant Service Level.3.3Third Party Content provided or made available in connection with the Services may be subject to third party terms or other additional terms, as referenced in the
Statement of Work
4. Customer Obligations
4.1 The Customer will:
(a) promptly provide ASV with all cooperation, access, information and materials that ASV reasonably requests to provide the Services (including access to records, systems, personnel, premises, information technology, the Customer's
other relevant suppliers and other systems); and
(b) use all reasonable efforts to ensure the information and materials provided or made available to ASV by or on behalf of the Customer are accurate, complete and not misleading. The Customer will notify ASV promptly after becoming
aware of any issues with this information or material.
5. Mutual Obligations
5.1 During the term of this Agreement, each party will:
(a) perform their respective obligations under this Agreement with skill, care and diligence, in a professional manner and in accordance with Good Practice;
(b) ensure their personnel who perform this Agreement, or receive the Services are suitably qualified, experienced and supervised to perform their role; and
(c) comply with all applicable laws, rules, regulations and orders, and all reasonable applicable policies agreed in advance. Where any change to any laws, rules, regulations, orders or policies materially impacts ASV’s ability to provide
the Services (or the cost of doing so), then ASV may raise a Change Request.
5.2 Each party must comply with applicable export laws and regulations in providing and using the Services. The Customer must not permit any person to access or use Services in violation of any applicable export embargo, prohibition, or restriction.
6. Review and Acceptance of Deliverables
6.1 If set out in a Statement of Work, each party will comply with its obligations in relation to reviewing and accepting relevant Deliverables.
6.2 Subject to any obligations on the Customer to complete acceptance tests in timeframes set out in a Statement of Work, the Customer is responsible for performing the acceptance tests that are reasonably necessary for the Customer to accept the relevant Deliverables, within a reasonable time of delivery of them.
6.3 Unless otherwise specified in the applicable Statement of Work, or the Customer (acting reasonably) notifies ASV before Deemed Acceptance occurs, that a Deliverable is not accepted in full, the Customer is deemed to have accepted a Deliverable (Deemed Acceptance):
(a) 10 Business Days after delivery; or
(b) immediately if the Customer makes productive use of that Deliverable (other than through agreed acceptance testing).
8. Payment and Invoices
8.1 Unless stated otherwise in the relevant Statement of Work, ASV will send an invoice to the Customer monthly in arrears for the Services provided under that Statement of Work.
8.2 Unless stated otherwise in the relevant Statement of Work, the Customer will pay ASV:
(a) in accordance with the payment terms specified in Schedule 1; and
(b) by electronic transfer of funds to ASV’s specified bank account in each invoice, quoting the invoice number against which payment is made.
8.3 Where the Customer reasonably and in good faith disputes an invoice (or part of an invoice):
(a) the Customer will pay the undisputed part of that invoice by the due date;
(b) the Customer may withhold payment of the disputed part of that invoice so long as it gives ASV notice prior to the due date for that invoice:
(i) that the Customer will withhold the payment;
(ii) stating the amount that the Customer will withhold; and
(iii) detailing the basis of the dispute and the grounds for withholding payment.
8.4 If the Customer fails to pay any undisputed invoice in whole or part, and ASV has notified the Customer of its failure to pay and the Customer has not disputed or paid the invoice within 10 Business Days’ of ASV’s notice, then ASV may:
(a) charge the Customer interest on the sums due (calculated daily from the due date of the relevant invoice) at a rate equivalent to ASV’s applicable bank overdraft rate plus 3%; and
(b) withhold the further supply of Services under the applicable Statement of Work.
8.5 The Customer is not entitled to any right of set-off under or in relation to this Agreement.
8.6 The Customer agrees that ASV may assign or transfer any invoice to any Related Company or third party, without the need for the Customer’s further agreement.
9. Equipment and Products
9.1 Unless otherwise specified in a Statement of Work, nothing in this Agreement transfers any rights, title or interest in or to any equipment provided by or on behalf of ASV under this Agreement.
9.2 Unless otherwise agreed in writing, specified in a Statement of Work or otherwise agreed under separate terms for a sale of Products, any sale and purchase of Products will be subject to the additional terms and conditions set out in Schedule 2.
10. Governance
10.1 Each party will comply with its governance, reporting and meeting obligations, as set out in the relevant Statement of Work.
11. Audits and Records
11.1 No more than once in any twelve-month period and on reasonable notice, the Customer and/or its auditors may audit ASV’s compliance with this Agreement. The Customer will (and must ensure its auditors will) comply with ASV’s reasonable confidentiality, security and other requirements in connection with any such audit process.
11.2 ASV will cooperate with each audit carried out under this clause 11, including, if reasonably requested, by making personnel, documentation and facilities reasonably available.
11.3 ASV will comply with all record-keeping, retention and disposal requirements as required by law.
12. Request for Statement of Work or Change Control
12.1 Either party may request:
(a) a change to this Agreement or any Statement of Work; or
(b) a new Statement of Work be entered into under this Agreement,
(c) by giving the other party written notice specifying the details of its request.
12.2 Within 10 Business Days of a request, ASV will prepare a written change request (Change Request) or a draft statement of work (Draft SOW) as applicable.
12.3 The parties will cooperate with each other to further define the Change Request or Draft SOW.
12.4 ASV will ensure each Change Request or Draft SOW sets out:
(a) a description of and the reasons for the proposed change;
(b) the proposed services or obligations, and inputs from each party, to be provided, removed and/or affected;
(c) a plan for implementing the Change Request or Draft SOW; and
(d) a description of the Charges that will apply, be removed and/or are affected.
12.5 No Change Request or Draft SOW is binding unless the parties sign it. Both parties will not unreasonably refuse a Change Request or Draft SOW, and will not unreasonably delay any consent.
12.6 Unless otherwise agreed in writing, ASV may charge its standard hourly rates to prepare the Change Request and/or Draft SOW where it takes (or ASV reasonably believes it will take) more than four hours of work.
12.7 If any change to this Agreement is needed to:
(a) respond to an emergency that may materially affect the Customer or provision of the Services; or
(b) require ASV to provide services additional to or beyond the scope of the Services (including, for example, assisting the Customer to respond to a cyber security incident) (Emergency Change); and
(c) it is not reasonably practical to agree that Emergency Change in advance in a Change Request or Draft SOW, then: the affected party must notify the other party of the need for the Emergency Change.
12.8 ASV will as soon as practicable, take steps within its reasonable control to make the Emergency Change.
12.9 ASV will then prepare a written Change Request or Draft SOW to document the Emergency Change as per clauses 12.2 to 12.6, including by specifying any incremental Charges (or the way in which such Charges will be calculated).
12.10 If the parties do not sign a Change Request or Draft SOW within 10 Business Days after ASV has submitted it to the Customer, either party may refer the matter for resolution under clause 17 (Dispute resolution).
13. Confidential Information
13.1 Each party will (and, if applicable, will procure that their Related Companies will):
(a) use all reasonable administrative, physical and technical safeguards to protect the confidentiality, integrity and security of the other party’s Confidential Information;
(b) not use the other party’s Confidential Information except to the extent required to perform its obligations or exercise its rights under this Agreement; and
(c) only disclose the other party’s Confidential Information to its officers, employees, contractors and agents that have a need to know and are bound by contractual obligations to keep the other party’s Confidential Information
Information confidential.
13.2 Clause 13.1 will not apply to the extent:
(a) the disclosure is required by law or the rules of any stock exchange on which a party or its Related Company is listed, in which case that disclosing party will:
(i) as soon as reasonably practicable, unless prevented from doing so by any applicable law, notify the other party of the requirement, the Confidential Information that the party will disclose, and the date the party will disclose that
Confidential Information;
(ii) use any available discretion or exception not to disclose the other party’s Confidential Information;
(iii) use all reasonable efforts to ensure that the recipient of the other party’s Confidential Information keeps the Confidential Information confidential.
(iv) use all reasonable efforts to ensure that the disclosure of the other party’s Confidential Information is agreed by the other party before the disclosure is made;
(b) the relevant information is
(i) publicly available (or becomes publicly available) through no fault of the party making the disclosure;
(ii) independently acquired or developed by the party making the disclosure without breaching any of its obligations under this Agreement or at law; or
(iii) lawfully acquired from a third party by the party making the disclosure, so long as that information is not obtained by that third party’s breach of its confidentiality obligations.
14. Privacy
14.1 Each party will comply with the Privacy Law when processing personal information (as such term is defined in the Privacy Law).
14.2 Each party must:
(a) obtain all required consents and authorisations required to allow the other party to process personal information as contemplated by this Agreement;
(b) not knowingly do or omit to do anything that may cause the other party to breach its obligations under Privacy Law;
(c) must only process personal information of the other party as reasonably necessary to perform its obligations under this Agreement or as otherwise permitted under this Agreement;
(d) take reasonable steps to ensure that access to the other party’s personal information is limited to those persons who need to access it for the purposes for which it is being processed; and
(e) provide reasonable assistance and information to the other party as may be reasonably required by the other party to meet its obligations under Privacy Law.
14.3 Any personal information ASV receives in connection with this Agreement will be managed and processed in accordance with the ASV Group Privacy Policy available on ASV’s website, as may be amended from time to time. ASV is entitled to retain records prescribed by applicable legislation from time to time.
14.4 Unless otherwise stated in a Statement of Work, the Customer agrees that ASV may transfer or disclose personal information to its Related Companies or contractors in countries in which ASV operates for the purposes of providing services or goods to ASV or the Customer including technical support, or to otherwise perform its obligations under this Agreement. ASV will ensure that its Related Companies or contractors are:
(a) bound by similar obligations in respect of that transferred or disclosed information as are imposed on ASV under this Agreement, or are otherwise required to protect the information in a way that overall provides comparable
safeguards to those under Privacy Law; and
(b) not permitted to assign or sub-contract (in whole or in part) their obligations in relation to that personal information or disclose such personal information without ASV's permission, unless required to comply with law.
14.5 ASV will remain responsible to the Customer for all processing of personal information by a Related Company acting in accordance with the terms of this Agreement.
14.6 If either party becomes aware of, or has reasonable grounds to suspect that, a Privacy Breach has occurred:
(a) that party must promptly notify the other party in writing, including in such notice known details of the Privacy Breach;
(b) ASV must provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Privacy Breach, at the Customer's cost unless the Privacy Breach was caused by ASV's
negligence or breach of this Agreement;
(c) the Customer is responsible for determining whether the actual or suspected Security Breach is notifiable under Privacy Laws; and
(d) the Customer must not reference ASV or any of its Related Companies in any notification or communication relating to the actual or suspected Privacy Breach without ASV’s prior written approval as to the form and content of the
reference.
15. Announcements
15.1 Neither party will make or authorise any public announcement or public disclosure regarding this Agreement without the prior written consent of the other party.
16. Intellectual Property Rights
16.1 Except as set out in this Agreement, nothing in this Agreement gives a party any right, title or interest in any Background IP or data provided or made available under this Agreement by the other party.
16.2 The Customer will provide to ASV any Customer-Provided IP at the Customer’s sole cost, for the purposes of any applicable Statement of Work.
16.3 The Customer grants ASV a non-exclusive, fully paid licence for the term of this Agreement to use the Customer-Provided IP and Customer data provided or made available to ASV under this Agreement, but only for the purpose of ASV performing its obligations under this Agreement.
16.4 The Customer authorises ASV to act on the Customer’s behalf to license to the Customer the Reseller IP, as set out in the relevant Statement of Work. The Customer will use that Reseller IP subject to the terms and conditions of the third party’s licence that ASV is reselling, as referred to in the applicable Statement of Work.
16.5 Nothing in this Agreement will limit ASV’s use or retention of any know-how obtained or used under or in relation to this Agreement or the re-use of that know-how for itself or its other customers.
16.6 ASV or the relevant third party owns all right, title and interest in and to any Products, Deliverables and Services that are provided to the Customer as part of any Statement of work executed between the parties. The Customers acknowledges that the Products, Deliverables and Services constitute proprietary information and trade secrets which are the sole and exclusive property of ASV or the relevant third party. This Agreement does not transfer or convey to the Customer or any third party any right, title or interest in or to the Products, Deliverables and Services or any associated intellectual property rights or industrial property rights, but only limited and revocable rights of use in accordance with the terms of this Agreement.
16.7 Either party's use, display or reference to the other party's proprietary indicia, trademarks, service marks, trade names, logos, symbols or brand names (collectively "Marks") shall be subject to such party's logo and trademark usage guide, as provided to the other party and as the same may be updated from time to time. Neither party may remove, destroy or alter the other party's Marks. Each party agrees that it shall not challenge or assist others to challenge the rights of the other party or its suppliers or licensors in the Marks or the registration of the Marks, or attempt to register any trademarks, service marks, trade names, logos, symbols, brand names or other proprietary indicia confusingly similar to the Marks. Neither party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties.
16.8 Each party (the Indemnifying Party) indemnifies the other party (the Indemnified Party) for its Loss in respect of any third party’s claim against the Indemnified Party that the Indemnified Party’s use of Products, Deliverables and Services provided or made available by or on behalf of the Indemnifying Party infringes the Intellectual Property Rights of that third party. The Indemnifying Party will not be liable under that indemnity:
(a) unless the Indemnified Party promptly notifies the Indemnifying Party in writing after receiving that third party’s claim;
(b) unless the Indemnified Party allows the Indemnifying Party to conduct all negotiations and proceedings in respect of that third party’s claim;
(c) unless the Indemnified Party provides all reasonable assistance requested by the Indemnifying Party in the course of any negotiations or proceedings regarding the third party’s claim, such cooperation to be at the Indemnifying Party’s
cost;
(d) so long as the Indemnified Party does not make any admission, settlement or compromise in respect of the third party’s claim; and
(e) to the extent that the Indemnified Party does not take all reasonable steps to mitigate its loss in respect of the third party’s claim.
16.9 ASV does not indemnify the Customer where the applicable third party’s claim arises from:
(a) use or modification of the Products, Deliverables and Services in breach of this Agreement;
(b) use, modifications, adaptations or derivations of the Products, Deliverables and Services provided by or on behalf of ASV in a manner or for a purpose that is not set out in the relevant Statement of Work;
(c) use of Products, Deliverables and Services in conjunction with software or hardware that ASV has not approved in writing; or
(d) the Customer-Provided IP, Reseller IP or Products.
16.10 If a third party makes a claim that is subject to the indemnity or ASV anticipates that such a claim might be made, ASV (at its own expense and sole option) may either:
(a) procure for the Customer the right to continue using the relevant part of the Deliverable or Service which are subject to the third party’s claim; or
(b) replace or modify the relevant part of the Deliverable or Service with a non-infringing substitute provided that the replaced or modified part is at least equivalent to the performance and functionality of the original part and is provided
at no additional charge to the Customer.
17. Dispute Resolution
17.1 A party must not start court proceedings in respect of a dispute or difference arising out of, or in connection with this Agreement (Dispute) unless it has first complied with this clause 17.
17.2 A party to this Agreement claiming that a Dispute has arisen under this agreement must give notice (Dispute Notice) to the other party setting out in reasonable detail the disputed matters. If a Dispute arises, the parties will attempt to settle the Dispute through good faith negotiations.
17.3 If the Dispute is not resolved within 20 Business Days of the date that the Dispute Notice was delivered, then by giving notice to the other party, either party may refer the Dispute to their respective Chief Executive Officers or other senior officers to attempt resolution.
17.4 If the Dispute is not resolved within 40 Business Days of the date that the Dispute Notice was delivered, then either party may give notice to the other party setting out that it wishes to refer the matter to mediation.
17.5 Any Dispute which is referred to mediation must be submitted to the Australian Disputes Centre for resolution in accordance with its then current mediation rules and guidelines. Where a dispute is referred to mediation:
(a) the mediation will be conducted in Sydney;
(b) the parties agree to pay costs as directed by the mediator; and
(c) both parties may be represented by a duly qualified legal practitioner.
17.6 Nothing in this clause will prevent a party from seeking urgent relief (such as an injunction) before a court of competent jurisdiction.
18. Liability
18.1 The extent permitted by law the maximum aggregate liability of each party for any claim, suit, action, demand or proceeding arising out of any cause of action (including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action) related to or brought or made in connection with this Agreement or the Services (Claim) and Losses relating to or in connection with this Agreement that occur in an Agreement Year will be an amount equal to:
(a) for Claims and Losses relating to breach of privacy, confidentiality and security obligations under this Agreement; three times the Charges paid or payable under the relevant Statement of Work during that Agreement Year; or
(b) for all other Claims and Losses the Charges paid or payable under the relevant Statement of Work during that Agreement Year,
(c) in either case less any amount paid or payable under the relevant Statement of Work for Reseller IP or Products to be provided by ASV.
In this clause 18.1:
(a) a Claim or Loss will occur in an Agreement Year if:
(i) where the Claim or Loss relates to a single event, the date on which the event occurred was in that Agreement Year; and
(ii) if the Claim or Loss relates to a series of related events, the date on which the first of those events occurred was in that Agreement Year;
(b) Agreement Year means a 12 month period commencing on the first day of the Initial Term or an anniversary of that date; and
(c) 'paid or payable’ refers to amounts that have been paid, are due and payable or will or would become payable if the parties performed all of their obligations under this Agreement for the remainder of the Agreement Year.
18.2 To the extent permitted by law, neither party will be liable for:
(a) any indirect, special, incidental, punitive or consequential Loss, even if that party has been advised of the possibility of such Loss;
(b) any Loss of profit, business, revenue, anticipated savings, goodwill or opportunity; or
(c) the Loss of any third party which is not a Related Company.
18.3 The limitations and exclusions in clauses 18.1 and 18.1 will not apply to liability:
(a) fraud;
(b) the Customer (or its Related Companies') failure to pay any amount due and owing under this Agreement; or
(c) under the indemnity in clause 16.8 or the Customer's indemnity under Schedule 2.
18.4 ASV will not be liable to the extent that the Customer or its officers, agents, employees, contractors or representatives have:
(a) acted or omitted to act in a way that causes or contributes to ASV's breach of this Agreement;
(b) given an instruction, direction or Requirement, which would cause or have caused ASV to breach the law, this Agreement or an agreement between ASV and a third party; or
(c) not provided a response or direction to ASV in the timeframe reasonably requested by ASV or that is otherwise agreed between the parties.
18.5 Notwithstanding any other sub-clause in this clause 18, each limitation of liability in this clause 18 will apply only to the extent permitted by applicable law.
18.6 Except for any warranties, conditions or guarantees specified in a Statement of Work, to the extent permitted by law, all warranties, conditions and guarantees are expressly excluded including as to the quality, state or condition of any goods or Services or their appearance, quality, content or fitness for any particular purpose (including the United Nations Convention on Contracts for the International Sale of Goods).
18.7 This clause applies only if the Customer is a consumer as defined under applicable law. If the Products or Services supplied by ASV are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then ASV limits its liability for a breach of any of the conditions, guarantees and warranties implied in this Agreement for the supply of those Products or Services by ASV to:
(a) for Services: re-supplying the services or paying the costs of resupplying the Services; and
(b) for Products: replacing the Products or supplying equivalent Products; repairing the Products; paying the costs of replacing the Products or acquiring equivalent goods; or paying the costs of repairing the Products.
18.8 This clause applies only if the Customer is a consumer as defined under applicable law in Australia. For major failures with the Service, the Customer is entitled to: (i) cancel the service contract with ASV; and (ii) a refund for the unused portion, or compensation for its reduced value. The Customer may also choose a refund or replacement for major failures with Products. If a failure with the Products or a Service is not a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done, the Customer is entitled to a refund for the Products and to cancel the contract for the Services and obtain a refund of any unused portion. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Products or Service.
19. Force Majeure
19.1 Where a party (the Affected Party):
(a) is unable to carry out any obligations in accordance with this Agreement by reason of Force Majeure Event;
(b) the Affected Party gives the other party written notice as soon as reasonably practicable of the nature and expected duration (as known at that time) of, and the obligation affected by, the Force Majeure Event; and
(c) the Affected Party uses all reasonable efforts to:
(i) mitigate the effects of the Force Majeure Event on the Affected Party’s obligations under this Agreement; and
(ii) perform the Affected Party’s obligations under this Agreement despite the Force Majeure Event; and that obligation is suspended for so long as, and to the extent that, the Affected Party is affected by the Force Majeure Event.
19.2 if ASV is the Affected Party, the Customer will continue to pay any Charges relating to obligations not directly affected by the Force Majeure Event.
19.3 If a Force Majeure Event continues for more than 60 continuous days, then either party may terminate the Services subject to the Force Majeure Event, with immediate effect upon giving written notice to the other party.
20. Insurance
20.1 ASV will take out and maintain insurance cover with a reputable insurance provider as would be prudent for persons engaged in business similar to ASV and will include insurance in respect of:
(a) professional indemnity;
(b) public liability;
(c) workers compensation or similar employee protection levies; and(d)any other insurance as required by law, Schedule 1 or a Statement of Work.
20.2 ASV will provide reasonable evidence of its insurance cover at the Customer’s reasonable request.
21. Term and Termination
21.1 The Initial Term will commence on the date the Agreement comes into force in accordance with clause 1.1. This Agreement will continue until terminated in accordance with its terms.
21.2 Each Statement of Work will start on the start date specified in that Statement of Work, and continue until that Statement of Work expires or terminates in accordance with its terms.
21.3 Either party may terminate this Agreement or any Statement of Work:
(a) by giving the other party no less than 180 day’s prior written notice;
(b) if the other party is in material breach of this Agreement or that Statement of Work, the breach is capable of remedy and, within 20 Business Days of receiving written notice of the breach, the other party has not remedied or tabled a
reasonably acceptable plan to remedy the breach;
(c) immediately upon written notice if the other party is in material breach of this Agreement or that Statement of Work and the breach is not capable of remedy; or
(d) immediately by giving written notice if the other party experiences, or looks likely in the reasonable opinion of the party to experience, an Insolvency Event.
21.4 Termination or expiry of this Agreement or any Statement of Work will not affect any other Statements of Work which, unless otherwise agreed, will remain in effect (and governed by the terms of this Agreement) in accordance with their terms.
22. Disenagement
22.1 ASV will provide any disengagement Services as set out in a Statement of Work.
23. Effect of Termination
23.1 Unless otherwise specified in a Statement of Work, on termination each party will make available for collection, and will return (or at the other party’s request destroy) any property or Confidential Information in its possession or control that the other party provided or made available, provided that:
(a) a party may retain the other party’s Confidential Information, which is not readily accessible due to normal back-up or archival procedures; and
(b) such Confidential Information is retained in accordance with clause 13.
23.2 A party must not use the other party’s Confidential Information after termination or expiry of this Agreement or the relevant Statement of Work, except in accordance with this Agreement, including for any disengagement Services.
23.3 On termination of this Agreement or a Statement of Work:
(a) the Customer must pay ASV all money owing to ASV under this Agreement or the relevant Statement of Work, including the Charge for Services provided and expenses incurred but which have not been invoiced; and
(b) unless the termination was by the Customer under clause 21.3.3(a), 21.3(b), 21.3(c), or 21.3(d), any fixed or sunk costs (including committed third party costs, set-up costs and redundancy costs or any deferred transition-in costs or
upfront investments made by ASV) that ASV will incur or has incurred in respect of the Services, up to any limit set out in any Statement of Work, subject always to clause 33.
24. Continuing Obligations
24.1 Except as otherwise provided in this Agreement:
(a) expiry or termination of this Agreement will not affect any accrued rights and obligations under this Agreement as at the date of expiry or termination; and
(b) expiry or termination of this Agreement will not affect the continuing rights and obligations of the parties under clauses 13 (Confidential Information), 16 (Intellectual Property Rights), 17 (Dispute Resolution), 18 (Liability), 23 (Effect of
Termination), 24 (Continuing Obligations) or under any other provision of this Agreement which is expressed to survive termination or which is required to give effect to such termination or the consequences of termination.
25. Waiver and Forbearance
25.1 No delay, grant of time, release, compromise or other indulgence by one party in respect of any breach of this Agreement by the other party will:
(a) operate as a waiver or prevent the subsequent enforcement of the obligation; or
(b) be deemed a delay, grant of time, release, compromise or other indulgence in respect of, or a waiver of, any subsequent or other breach.
26. Assignment and Subcontracting
26.1 A party may assign, transfer or novate (whether in whole or part) this Agreement only if it has the other party's prior written consent (such consent not to be unreasonably withheld or delayed). The parties agree that a solvent corporate reorganisation or reconstruction, including an amalgamation or merger, of a party is not deemed to be an assignment for the purposes of this Agreement.
26.2 The Customer agrees that ASV may assign, transfer or novate this Agreement to any of its Related Companies without the Customer's further approval or agreement.
26.3 ASV will not subcontract the performance of all or any of its material obligations under this Agreement, without the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed), provided that ASV may subcontract to its Related Companies without the Customer's prior written consent.
27. No Agency
27.1 Except as expressly provided for in this Agreement, nothing in this Agreement will create or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party will not make any representation that any such relationship exists between the parties.
28. Protection of Business
28.1 Neither party will (and will procure that no associated or Related Company will) approach or solicit for employment, engage or contract any person who is employed or contracted by the other party:
(a) during the term of this Agreement; or
(b) for a period of six months following the expiry or termination of this Agreement, without the other party's prior written consent. Where a party breaches this clause, then that party will pay to the other party on demand, an amount
equivalent to 12 months’ salary or fees payable to that person by the other party, by way of liquidated damages. The parties agree that this amount is fair and reasonable compensation for the loss of that person.
28.2 This clause will not apply in the event a person employed or contracted by a party should:
(a) independently approach the other party for the purpose of that person’s proposed employment, engagement or contracting by the other party; or
(b) respond to a public advertisement of the other party for a role.
28.3 Notwithstanding, in the event that the Customer hires a ASV employee who has been dedicated to provide services to the Customer for at least 6 months, the Customer will pay to ASV on demand, an amount equivalent to 15% of that employee’s annual salary by way of liquidated damages. The parties agree that this amount is fair and reasonable compensation for the loss of that person, and is based on industry standard recruitment fees.
29. Entire Agreement
29.1 This Agreement constitutes the entire agreement between the parties in relation to the Services and Deliverables, and supersedes all previous agreements, understandings and negotiations on that subject matter. The Customer confirms that it is not relying on any representations made by ASV except as expressly set out in this Agreement.
29.2 This Agreement can only be changed or modified by the parties' prior written consent.
29.3 No third party consent is required for any variation to this Agreement.
30. Severability
30.1 If any provision of this Agreement will be declared invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject, that provision may be severed and such invalidity, unenforceability or illegality will not prejudice or affect the validity, enforceability and legality of the rest of this Agreement.
31. Costs and Expenses
31.1 Each party is responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement and, subject to clause 12.6, any Statement of Work.
32. Counterparts
32.1 This Agreement may be executed in any number of counterparts (including PDF emailed copies) and, provided that each party has executed a counterpart of this Agreement and provided it to the other party, the counterparts together will constitute a binding and enforceable agreement between the parties.
33. Mitigation
33.1 Each party will take all reasonable steps to minimise and mitigate any Loss for which that party is entitled to bring a claim against the other under this Agreement.
34. Notices
34.1 Any notice given under this Agreement will be validly given if it is in writing and delivered or sent by email, prepaid post or courier to the other party at the address in the Details or as otherwise notified from time to time.
34.2 Any notice or delivery sent to the last known address of the addressee will be deemed to have been given 7 Business Days after posting, by courier on receipt, or by email when the message enters the recipient’s mail server.
35. Govrning Law and Jurisdiction
35.1 This Agreement is subject to the laws of the jurisdiction described in Schedule 1.
35.2 Subject to clause 17, the parties agree that the courts of the jurisdiction described in Schedule 1 will have non-exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute in connection with this Agreement and irrevocably submit to the jurisdiction of those courts.
AA. Definitions and Interpretation
Agreement means this Master Services Agreement, and (unless the context requires otherwise) any Statement of Work.
Background IP means the Intellectual Property Rights which:
(a) a party owned prior to the date of the relevant Statement of Work;
(b) are developed independently of this Agreement;
(c) are licensed from a third party and embedded in a Deliverable; or
(d) exist in any outputs generated by AI tools or models used in connection with the Services or Deliverables, unless expressly agreed otherwise in a Statement of Work, and includes any modifications to those Intellectual Property
Rights or derivative works but excludes any Reseller IP and any Customer-Provided IP.
Business Day means any day other than a Saturday, Sunday or statutory holiday in the time zone described in Schedule 1.
Change Request has the meaning set out in clause 12.2.
Charge means the charges for the Services as set out in the relevant Statement of Work.
Confidential Information of a party means any information that is:
(a) confidential in nature or ought reasonably to be treated by the other party as confidential; and
(b) obtained by or made available to the other party in connection with this Agreement, whether before or after the date of this Agreement and includes:
(i) the subject-matter and the terms of this Agreement; and
(ii) all analyses, compilations, studies and other documents which contain or otherwise reflect or are derived from the information referred to in paragraphs (a) and (b) of this definition.
Customer-Provided IP means the Intellectual Property Rights in any materials or software that the Customer is required to provide or is not ASV’s responsibility under a Statement of Work to provide, and excludes ASV-provided Background IP and the Reseller IP.
Deliverable means any item identified as a deliverable in a Statement of Work.
Draft SOW has the meaning set out in clause 12.2.
Force Majeure Event means, in relation to a party:
(a) an act of God;
(b) an act of public enemy, or declared or undeclared war or threat of war;
(c) a terrorist act, sabotage, blockade, revolution, riot, insurrection, civil commotion, strike (other than a strike of that party’s workers), or public demonstration (other than one caused by that party);
(d) earthquake, fire, explosion, flood, storm or other adverse event;
(e) unpredictable and unpreventable delays in delivery of materials, equipment or services necessary for the compliance by that party with any obligation under this Agreement;
(f) governmental action, restraint, direction or embargo;
(g) epidemic or pandemic disease, quarantine, movement restrictions or other government or state intervention; or
(h) any fault, failure or interruption in any utility or the network supplying telecommunications services to the Customer or ASV;
(i) any cyber operation or event where reasonable grounds exist to attribute the operation or event to a state, state actors or individuals sponsored or tacitly encouraged by any state, against either ASV or the Customer (this includes a
disruption, denial, unauthorised access, theft, vandalism or other damage, locking up or encryption, of any data or systems); or
(j) any other event or circumstance beyond the reasonable control of that party, but does not include a failure to pay Charges under this Agreement.
Good Practice means the exercise of the degree of skill, care, diligence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person who provides services (in the case of ASV) or receives services (in the case of the Customer) similar to the Services in similar circumstances.
Initial Term means the initial term set out in Schedule 1.
Insolvency Event means any of the following events (whether actual or threatened) in any jurisdiction:
(a) a party’s insolvency, winding up, dissolution, entry into an arrangement with creditors or reorganisation (except for purposes of amalgamation, or solvent reconstruction on terms previously approved by the other party);
(b) a receiver, liquidator or administrator is appointed over the assets of a party;
(c) a party suspends payment of its debts or is unable to pay its debts when they fall due;
(d) a creditor or encumbrancer of a party attaches or takes possession of (or other such process) the whole or any part of a party’s assets; or
(e) any analogous event to the above.
Intellectual Property Rights or IP means all rights in respect of patents, copyrights, designs, circuit layouts, trademarks, trade secrets, know-how and all other intellectual and industrial property rights throughout the world, including all moral rights.
Loss means a loss, claim, action, damage, liability, cost, charge, expense, penalty, compensation, fine or outgoing suffered, paid or incurred.
Privacy Breach means any unauthorised or accidental access to, or disclosure, alteration, loss or destruction of, personal information processed under this Agreement, or any action that prevents the Customer or ASV from accessing such personal information on either a temporary or permanent basis.
Privacy Law means the Privacy Act 1988 (Cth) and the Australian Privacy Principles in the Privacy Act 1988 (Cth).
Products means all third-party hardware, and, where relevant, related software, goods and services, provided by a third-party manufacturer, distributor or licensor and which are sold to the Customer (or any of the Customer's Related Companies) by ASV as a reseller or distributor.
Related Company means a related body corporate as that term is defined in the Corporations Act 2001 (Cth).
Requirements means the functional requirements and specifications set out in a Statement of Work, as those requirements may be elaborated from time to time by the written agreement of the parties or otherwise in accordance with this Agreement.
Reseller IP means the third party Intellectual Property Rights that ASV (as a reseller) provides or is to provide to the Customer under the relevant Statement of Work, and excludes ASV’s Background IP and the Customer-Provided IP.
Service Levels means any service levels set out in the Aryaka Service Level Agreement available at https://www.aryaka.com/aryaka-service-level-agreement/.
Services means the services and/or Deliverables provided or to be provided by ASV under or in relation to this Agreement, as set out in a Statement of Work, and excludes any services or deliverables which a Statement of Work states are the Customer’s or another person’s responsibility or are out of scope for that Statement of Work.
Statement of Work means a statement of work, work order, service schedule, quote, order form or other document (however described) that expressly relates to this Agreement, is signed by each party (or a Related Company of a party) and includes any schedule attached to or expressly incorporated into that Statement of Work.
Third Party Content means third party software, technology, services data or other content or material that the Customer or any of its Related Companies or end users may have access to or use through, in connection with, or as part of, the Services.
In this Agreement unless the context otherwise requires, a reference to:
(a) a party will include that party’s executors, administrators, successors and permitted assigns;
(b) a statute or regulation will include all amendments, substitutions and re-enactments of that statute or regulation and any subordinate legislation made under that statute or regulation;
(c) a document is a reference to that document as amended, replaced or substituted from time to time;
(d) a clause or a schedule is to a clause of or a schedule to this Agreement; and
(e) the term “includes” means “includes without limitation” and other grammatical forms of “includes” will be interpreted accordingly.