1.1 These Terms and Conditions (“T&Cs”) set out the terms upon which Marketsoft Services Pty Ltd (‘MS’) will provide Services from time to time to the party(s) (“Customer”).
1.2 These T&Cs apply to all Services (including, but not limited to, data processing services) performed by MS and are the only terms on which MS will perform the Services.
2. Services Contracts
2.1 MS and the Customer will enter into a contract (“Services Contract”) in either of the following ways:
(a) by the Customer accepting of MS’s statement of work or quotation for Services setting out the Services to be provided by MS, the price and other relevant terms (“Quotation”);
(b) by the Customer requesting MS to commence providing the Services set out in the Quotation; or
(c) by the Customer continuing to instruct MS in relation to any Services.
2.2 The Services Contract will comprise these T&Cs and the Quotation, if MS has provided one for the Services.
2.3 In the case of any inconsistency between the terms of a Quotation and these T&Cs, the terms of the Quotation will prevail.
3.1 Any price quoted by MS (‘Price’) is fixed for 30 days. If the Customer does not enter into a Services Contract within that period, MS may vary the Price.
4. Cancellation and Alteration
4.1 A Services Contract cannot be altered or cancelled except with the written consent of MS.
4.2 If a Services Contract is cancelled or amended the Customer must pay MS for all work performed and materials used or specially obtained by MS for the Customer under the Services Contract
4.3 Notwithstanding clause 3.1, MS shall be entitled to vary the Price in anyway should the Customer make any alteration to the Services Contract subsequent to formation of the agreement between the parties in accordance with clause 2.
5. Customer Warranties
5.1 The Customer warrants it will provide MS with all information, data, documents, specifications and other inputs needed or requested by MS to provide the Services (“Customer Property”).
5.2 The Customer must allow MS reasonable access to any of its premises and systems as required to deliver the Services or Software.
5.3 The Customer warrants that the work to be performed by MS and the Customer Property will not include any material that is defamatory or that infringes any rights of any third party (including any copyright or confidential information).
6. Performance Dates and Delays
6.1 Subject to the Customer fulfilling its obligations under clause 5, MS must provide the Services to the Customer in accordance with any agreed time frame outlined in the Services Contract.
7.1 MS may arrange for the performance by a third party of part or all of it’s obligations under these T&Cs without the Customer’s consent.
7.2 Where MS arranges for the performance of any work by a third party, MS, in arranging that work, will act as an agent for the Customer and, subject to any written directions of the Customer, may bind the Customer to terms and conditions for having the work carried out as MS reasonably sees fit and the Customer will indemnify MS for the full cost of any work so arranged.
7.3 MS will not be responsible for any failure or breach by any third party contractor appointed under this clause 7, but MS must give all assistance at the request and cost of the Customer that is reasonably necessary for the Customer to pursue any claim against and to recover from that third party.
8. Third Party Data
8.1 During the course of delivering Services, MS may from time to time utilise approved third party data to validate or enhance Customer data.
8.2 By accepting MS’s terms, the Customer also accepts any terms associated with any third party data utilised in the course of delivering Services.
8.3 Where MS arranges for use of third party data, MS will act as an agent for the Customer and, subject to any written directions of the Customer, may bind the Customer to terms and conditions for having the work carried out as MS reasonably sees fit and the Customer will indemnify MS for the full cost of any work so arranged.
8.4 MS may provide limited Customer details relating only to the Services provided to the to the third party vendor for the purposes of royalty reporting.
9.1 The Customer must pay MS in accordance with the requirements of each Services Contract.
9.2 Unless otherwise specified in a Services Contract, all amounts payable under a Services Contract will be exclusive of Goods and Services Tax (GST) as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the Customer must pay all amounts on account of GST once the Customer has received a tax invoice.
10. Intellectual Property Rights
10.1 All intellectual property rights in the Software or arising in connection with any name, product, process or method employed in the provision of the Services are and will remain the exclusive property of MS and this agreement does not create or transfer any ownership or licence of intellectual property rights in favour of the Customer. The Customer must do anything reasonably required by MS to perfect any of MS’s rights under this clause, including the prompt execution of any deeds or documents submitted by MS for that purpose.
11. Warranties and Limitation of Liability
11.1 Where conditions, warranties or other rights for the benefit of the Customer are implied or given in respect of a Services Contract by the Competition and Consumer Act 2010 (Cth) or other laws and it is not lawful or possible to exclude them, then such conditions, warranties or other rights will only apply to a Services Contract to the extent required by law.
11.2 To the extent that MS may limit its liability for breach of implied conditions and warranties, MS’s liability for any breach of any such condition or warranty will be limited:
(a) in the case of goods supplied, to MS’s choice of:
(i) the replacement of goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring or hiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services supplied, to MS’s choice of:
(i) the supplying of the services again, or
(ii) the payment of the cost of having the services supplied again.
(c) Subject to this clause and despite any implications arising from any other provisions of these T&Cs or any Services Contract, the total liability of MS in contract, in tort (including negligence), under statute (to the extent permitted by law) or otherwise for, or in respect of, any loss or damage arising out of any breach or other act or omission in connection with the Services, the Software or a Services Contract, together with any amounts payable under obligations of indemnity, restitution or other entitlements, of the Customer to compensation, will not exceed the amount of fees paid by the Customer to MS under the relevant Services Contract. In no circumstances will MS be liable for any loss of data or loss of profits, revenues, business goodwill or any indirect, consequential or economic loss, howsoever arising, in relation to or otherwise in connection with the Services, the Software, a Services Contract, or any act or omission of MS in relation to any of them.
12.1 In this clause, “confidential information” means information disclosed by or on behalf of one party (Discloser) to the other party (Recipient) or of which the Recipient becomes aware, during the term of a Services Contract or in prior discussions between the parties in anticipation of a Services Contract, including:
(a) information designated as confidential by the Discloser; and
(b) any other information which by its nature should reasonably be considered to be confidential information of the Discloser or of a person to whom the Discloser owes a duty of confidence.
12.2 Confidential information does not include any information which the Recipient can prove either was in the public domain or was known by the Recipient at the time of disclosure, other than through a breach of its confidentiality obligations.
12.3 The Recipient must keep all confidential information confidential and may only disclose it to a third party with the prior written consent of the Discloser. The Recipient may disclose confidential information to its employees, agents or contractors to the extent such disclosure is necessary for the Recipient to carry out its obligations under a Services Contract and provided that its employees, agents or contractors are bound by obligations of confidentiality that reflect the Customer’s obligations under this clause 11.
12.1 The parties must not do any act or thing which causes the other party to be in breach of the Privacy Act 1988 (Cth) (the Privacy Act).
12.2 Each party must immediately notify the other party if it becomes aware of any complaint, unauthorised use or disclosure (Complaint) in respect of any use or disclosure of personal information (as defined in the Privacy Act) under or in connection with a Services Contract, and provide reasonable assistance to the other party to enable the Complaint to be promptly resolved.
14.1 Either party may terminate a Services Contract without cause by giving the other party 60 days written notice.
14.2 Either party may immediately terminate a Services Contract by giving written notice to the other party if:
(a) a receiver, receiver and manager, administrator, trustee or inspector, or other person with similar powers, is appointed in respect of the other party or over all or any part of the other party’s assets;
(b) winding up proceedings are commenced in respect of the other party or the other party ceases to carry on business;
(c) the other party enters into a compromise or arrangement with its creditors; or
(d) the other party is unable to pay all of its debts as and when they become due and payable or is deemed to be insolvent under any provision of the Corporations Act or any statute or any other law.
14.3 If either party is in material breach of its obligations under a Services Contract and:
(a) that breach is incapable of rectification; or
(b) that breach is capable of rectification, but is not rectified by the party in default within 30 days after receiving notice in writing from the other party requiring that it be rectified, then the other party is entitled to terminate the Services Contract by giving written notice to the party in default of the termination, which will be effective immediately unless otherwise stated in the notice.
14.4 On the termination of a Services Contract for any reason the Customer must:
(a) immediately cease to use the Software and destroy or return to MS (at MS’s option) all copies of the Software and any of MS’s materials containing confidential information in the Customer’s possession or control; and
(b) certify in writing to MS that the Customer has complied with its obligations under this clause.
15. Conflicts of Interest
15.1 The Customer warrants that it and its Related Persons have no vested commercial, personal or other interests that would likely impact the performance of its obligations under this Agreement (Conflict). If any Conflict arises, the Customer will immediately notify MS in writing of that Conflict and take steps to avoid or mitigate that Conflict as required by MS.
16.1 This agreement is governed by the laws of New South Wales and the parties submit to the jurisdiction of its courts.
17.1 The following words have the following meanings within these T&Cs, unless the context requires otherwise:
“Services” means the services to be supplied by MS to the Customer under a Services Contract as described in the relevant Quotation.
“Software” means any software to which access is provided by MS or which is used by MS in providing Services.