Masters Services Agreement

This agreement sets out the terms under which Solutions Plus Partnership Pty Ltd (ABN 87 168 418 602) in Australia or in Solutions Plus Partnership Limited (NZBN 94 290 5179 3098) in New Zealand (Solutions+) provides services to you (the Client). 

You will be taken to have accepted these terms and conditions if you sign these terms and conditions or otherwise indicate your assent, or if you order, accept, or pay for any services provided by Solutions+ after receiving or becoming aware of these terms.

1. SALES ORDER

   1. These terms will apply to all the Client’s dealings with Solutions+, including being incorporated in all agreements, quotations or orders under which Solutions+ is to provide services to the Client (each a Sales Order) together with any additional terms included in such Sales Order (provided such additional terms are recorded in writing).

   2. In the event of any inconsistency between these terms and conditions and any Sales Order, the clauses of these terms and conditions will prevail to the extent of such inconsistency, except that any Special Conditions, which are explicitly set out and described as such in a Sales Order, will prevail over the other terms of this agreement to the extent of any inconsistency.

   3. All Solutions+ Sales Orders are estimates, unless explicitly stated otherwise on the Sales Order. Where Solutions+ work effort exceeds estimates, the cost of the Sales Order is subject to increase on a time and materials basis.

 

2. TERM OF AGREEMENT

   1. This agreement commences on the Commencement Date specified in a Sales Order and will continue for an initial period of 48 months (Initial Term) and any Renewal Terms pursuant to clause 2b (Term of Agreement), unless terminated earlier in accordance with its terms (the Term).

   2. Upon expiration of the Initial Term, this agreement will automatically renew for successive one-year terms (each a Renewal Term) unless either party provides notice that the agreement will not automatically renew with three months’ written notice prior to the expiration of the Initial Term or the then-current Renewal Term.

 

3. SERVICES

   1. In consideration for the payment of the Fees, Solutions+ will provide the Client with the services set out in a Sales Order (Services). Solutions+ will use its best endeavours to provide the Services in accordance with the Sales Order. 

   2. The Services provided under a Sales Order may include any of the following:

      1. Providing an enterprise IT software and other relevant software (the Software), either as a licensed or purchased product.

      2. Implementation of the Software.

      3. Support for the Software.

      4. General business support and consulting services. 

   3. Where a Sales Order includes a licence to the Software, Solutions+ grants to the Customer a non-exclusive, non-transferable licence to use the Software during the Term. 

   4. Unless otherwise agreed, Solutions+ may, in its discretion:

      1. Not commence work on any Services until the Client has paid any fees or deposit payable in respect of such Services.

      2. Withhold delivery of Services until the Client has paid the invoice in respect of such Services.

   5. Solutions+ does not represent, warrant, or guarantee that the Services will provide the Customer with the intended benefit to its business. 

 

4. OUT OF HOURS WORK

   1. The Client must pay additional charges for implementation and support services outside the hours of 8:30am to 5:30pm Adelaide Time, Monday to Friday for Australian based customers, and 8:30am to 5:30pm Auckland Time for New Zealand based customers (Out of Hours Work) These excludes Public Holidays in Adelaide and New Zealand respectively.

   2. Unless otherwise agreed in writing prior to the Out of Hours Work being required, Out of Hours Work will be provided on a time and materials basis, at 1.5 times Solutions+’s standard hourly rate set out in a Sales Order.

 

5. HOSTED SERVICES

If the Services to be provided by Solutions+ include services to host the Client’s Software installation, other applications or other information or data (Hosted Services), the following terms apply unless otherwise specifically agreed in writing:

1. (HOSTING LOCATION) The Client acknowledges that Solutions+ uses storage servers that are located in Australia or New Zealand and may from time to time be located in other locations, including outside Australia and New Zealand..

2. (SERVICE QUALITY) While Solutions+ will use its best efforts to select an appropriate hosting provider, it does not guarantee that:

   1. The Hosting Services will be free from errors or defects.

   2. The Hosting Services will be accessible or available at all times.

3. (SECURITY) Solutions+ will use its best efforts to ensure that the Client’s application or other information or data (Client Data) is stored securely, however Solutions+ does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

4. (BACKUPS & DISASTER RECOVERY) Solutions+ will use its best efforts to create scheduled daily backups of Client Data stored by Solutions+. In the event that Client Data is lost due to a system failure (e.g. a database, hardware or webserver crash), Solutions+ will attempt to restore the Client Data from the latest available backup but cannot guarantee that this backup will be free from errors or defects.

5. (TROUBLESHOOTING) Solutions+’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.

 

6. HARDWARE

Where a Sales Order provides that the Services will include hardware, Solutions+ may need to install certain hardware or devices on the Client’s premises (Hardware). The Client acknowledges and agrees the following:

1. (OWNERSHIP) The Hardware is, and will at all times be and remain, the property of Solutions+, notwithstanding delivery of the Hardware to the Client or the possession and use of the Hardware by the Client.

2. (ENCUMBRANCES) The Client will not cause any security interest, encumbrance, charge, or lien of any kind to arise or remain on the Hardware arising or resulting from any act of the Client.

3. (POSSESSION) The Client must not, without Solutions+’s prior written consent, part with possession of the Hardware.

4. (RE-POSSESSION) If the Client breaches any term of this agreement or a Sales Order, or if this agreement is terminated or expires, the Client authorises Solutions+ or its employees and agents to enter any premises occupied by the Client or any other place where the Hardware is located and retake possession of the Hardware without liability for trespass or damage. Solutions+ may at its option keep or resell Hardware retaken from the Client.

5. (SALE IN BREACH) If the Client sells the Hardware or sells items into which the Hardware are incorporated, the Client acknowledges that such sale is made by the Client as bailee for and on behalf of Solutions+, to hold the proceeds of sale on trust for Solutions+, in an account in the name of Solutions+, and must pay that amount to Solutions+ on demand.

6. (DAMAGE TO HARDWARE) The Client will be fully responsible to Solutions+ for:

   1. Any loss or damage to the Hardware while in the Client’s possession and must give reasonable notice to Solutions+ in writing of any such loss or damage.

   2. All damage to the property of any person which is caused or contributed to by the Hardware while in the Client’s possession.

 

7. CLIENT OBLIGATIONS

   1. AUDIT

Solutions+ or the involved software vendor, including but not limited to SAP, Microsoft, Wiise, or Pay Solutions may conduct audits of the Client’s usage of the Services (Audit). The Client undertakes to support Solutions+ or the vendor to undertake Audits by allowing the Software to transmit necessary information to the vendor and allowing the vendor to remotely access the Software and equipment on which it is installed.

2. PROVIDE ASSISTANCE AND INFORMATION

The Client will provide all reasonable and necessary assistance as reasonably required from time to time to enable Solutions+ to perform the Services. The Client must provide Solutions+ with all documentation, information and assistance reasonably required for Solutions+ to perform the Services or conduct an Audit. The Client acknowledges and accepts that Solutions+ has only put forwarded estimated and provisional costs and unless expressed explicitly, there are no fixed cost service estimates. Therefore, as more information becomes available there may be additional costs which adjusted by a variation or change request.

3. ACCESS TO CLIENT PREMISES AND SYSTEMS

The Client agrees to provide Solutions+ with access (including login details and passwords) to any premises, online or offline systems and/or third-party accounts used by the Client as reasonably required by Solutions+ to perform the Services or conduct an Audit.

4. CLIENT SYSTEMS AND DATA

The Client is responsible for:

1. All Client systems including compute processing, storage, network and internet connectivity, communication links, back-ups and managing user access and cybersecurity.

2. Configuration of systems required to support Services and Deliverables.

3. Performing updates and routine maintenance of Client systems.

4. Undertaking necessary capacity planning and management of databases required for Services and Deliverables.

5. Ensuring the validity and accuracy of data input and processing by the Client’s users.

6. Providing training for the use of Client systems and Deliverables.

7. Putting in such measures as are required to protect against data security breach.

8. Ensuring the security and maintenance of the physical environment for client systems.

5. BACKUP SERVICE 

The Client will be solely responsible for all Client Data that the Client transmit, stores, views or restore through Backup Services. 

The Client agrees that it will not by using or receiving the Backup Services:

1. Breach any applicable laws, rules, and regulations (including any applicable privacy laws).

2. Transmit, store, view or restore Client Data that contains any malware, ransomware, viruses, malicious computer code or other forms of interference.

3. Infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.

 

8. CONDITIONS OF USE

When accessing and using the Solutions+ system or Service, you must:

1. Not attempt to undermine the security or integrity of Solutions+’s computing systems or networks or, where the Service is hosted by a third party, that third party’s computing systems and networks.

2. Not use, or misuse, the Service in any way which may impair the functionality of the Service or impair the ability of any other user to use the Service.

3. Not use, or misuse, the Service for any unlawful or illegitimate purpose.

4. Not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Service is hosted.

5. Not transmit, or input into the Service, any files that may damage any others’ computing devices or software, content that may be offensive, or material or data in violation of any law, including data or other material protected by copyright or trade secrets which you do not have the right to use.

6. Not modify, copy, adapt, reproduce, disassemble, decompile, or reverse engineer the Service except where it is for normal operation.

 

9. USER ACCEPTANCE TESTING

   1. TESTING AND ACCEPTANCE

The Client will undertake User Acceptance Testing (UAT) as per the relevant UAT process documentation. The UAT will be undertaken within the specified timeframes and in accordance with the documented testing procedures, business operations and acceptance criteria.

The Client will undertake UAT:

1. Within 5 business days (or as agreed) after Solutions+ notifies the Client that a Deliverable is ready for testing.

2. Within 5 business days of completing UAT, the Client will notify Solutions+ of the outcomes of the UAT: Acceptance of the Deliverable, acceptance with changes needed, or non-acceptance. 

2. ACCEPTANCE WITH CHANGES AND NON-ACCEPTANCE

If after UAT the Client cannot accept the Deliverable, the Client will provide Solutions+ with the UAT results and/or demonstrate the claimed defects. Solutions+ will rectify confirmed defects and re-submit the Deliverable for re-testing.

3. DEEMED ACCEPTANCE

A Deliverable will be deemed to have been accepted and successfully completed if no notice of non-acceptance is issued to Solutions+ within the timeframes detailed in clause 9.1 (Testing and Acceptance).

4. COMPLETION

A Sales Order will be deemed completed once all Services and Deliverables under the Sales Order are accepted.

 

5. CHANGE REQUESTS

Change requests, support enhancements and variations (Change Request) will be raised if:

1. The Client requests that a Sales Order or Services be varied, including the provision of new or additional Deliverables or Services.

2. The Client changes the project scope or timeframes or requires that project stages be repeated.

3. Solutions+ identifies that a Sales Order or Service does not meet Client requirements and a variation must be raised to meet the requirements.

4. Any of the underlying assumptions made in a Sales Order are incorrect and changes are needed to deliver the Service or Deliverable.

Solutions+ will submit a proposed variation to the Client, including any cost impact to the original Services or Sales Order.

After the Client agrees to a Change Request, the Sales Order will be deemed to include the agreed Services or Deliverables within the Change Request.

10. VENDOR AGREEMENTS AND TERMS & CONDITIONS

    1. VENDOR AGREEMENT

If the Services involve Solutions+ providing products from a third-party vendor, including but not limited to SAP, Microsoft, Wiise, Pay Solutions (the Vendor), the Client must agree to the vendor agreement (as provided with a Sales Order and as may be amended from time to time) prior to Solutions+ providing the vendor products. The Client must comply with the vendor agreement at all times and indemnifies Solutions+ for any breach of the vendor agreement that may occur as a result of or in connection with the Client’s use of the vendor’s products.

2. THIRD PARTY TERMS & CONDITIONS

Without limiting or otherwise affecting clause 6 (Hardware), if the Services involve Solutions+ acquiring goods and services supplied by a third party, which may include add-on software, on the Client’s behalf, the Client acknowledges that third party terms & conditions (Third Party Terms) may apply. The Client agrees to any Third-Party Terms applicable to any third-party goods and services that are used in performing the Services or providing the Deliverables, and Solutions+ will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

 

11. TIMING

As part of the Sales Order or in the course of Solutions+ performing the Services, the parties may agree a schedule for providing certain Services and Deliverables, including estimated dates of completion, deadlines, or schedules (Schedules).

Solutions+ will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, Solutions+ will use its best efforts to minimise the impact of such changes.

Solutions+ reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to provide timely feedback or other information reasonably requested by Solutions+ in order to perform the Services. 

 

12. SERVICE LEVELS 

    1. If the Services include support, during 8:30am to 5:30pm Adelaide time for Australian based customers and 8.30am to 5.30pm Auckland time for New Zealand based customers, Solutions+ will use its best endeavours to provide the support services in accordance with the Service Levels outlined in the Sales Order.

    2. The Client is responsible for lodging any issues with Solutions+’s help desk system. Solutions+ will not bear the costs of lodging an issue with the help desk. 

    3. If Solutions+ is not able to meet a Service Level set out in this clause 12 (Service Levels), for any reason, the Client will not have any claim for delay and Solutions+ will use its best endeavours to respond to or resolve the relevant issue as soon as possible. 

13. PAYMENT

    1. FEES

       1. The Client must pay to Solutions+ fees in the amounts set out in the Sales Order or as otherwise agreed in writing.

       2. If a Sales Order specifies that a Service applies, the Client must pay for that Services in the time and manner specified in the table below. 

       3. The Client must continue to pay the fees until the Client otherwise notifies Solutions+ of its intention to stop the Services.

2. ADJUSTMENTS

   1. Solutions+ may, in its absolute discretion at any time, increase the fees by providing thirty days’ written notice to the Client. 

   2. The first fee increase shall not exceed the percentage by which the Index has increased (calculated on a cumulative year-over-year basis) compared to the value of the Index as of the Commencement Date of the Sales Order. 

   3. Any subsequent fee increase shall be limited to the percentage by which the Index has increased (calculated on a cumulative year-over-year basis) compared to the value of the Index that was used as the basis for the then-prior fee increase for the Client.

3. TIME FOR PAYMENT

Unless otherwise agreed in a Sales Order:

1. if Solutions+ issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and

2. in all other circumstances, the Client must pay for all goods and services within 14 days of receiving an invoice for amounts payable.

3. If the Client disputes an amount or item in an invoice or any other amount to be paid, notice must be provided to Solutions+ in writing prior to the due date of payment. The notice must state what the disputed item or amount is and the reasons for the dispute. The Client must pay all undisputed amounts by the due date. The Client shall not be entitled to dispute liability to pay an amount, whether under an invoice or otherwise, unless notice has been provided in accordance with this clause 13 (Time for Payment).

4. If the Client fails to pay an undisputed part of any invoice or otherwise by the due date (and not more than 14 days from the date of the invoice), with written notice, Solutions+ may suspend the provision of Services (including but not limited to helpdesk support and Vendor licences) until all outstanding amounts are paid. If such failure to pay is not rectified within 60 days of the due date for payment of an invoice, Solutions+ shall have the right to require payment for all services be paid in-advanced or terminate the relevant Sales Order.

5. Solutions+ reserves the right at any time, with notice to the client, to charge interest on unpaid amounts of undisputed invoices, at the rate of 10% per annum, or such other rate as permitted by law, accruing daily from the date that the invoice is due date for payment.

4. EXPENSES

Unless otherwise agreed:

1. The Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Solutions+ in connection with a Sales Order.

2. The Client will bear the cost that it takes a consultant to travel between Service Provider premises and Client premises and a minimum of 30 minutes will be charged at Service Provider’s standard consulting rate.

3. Any third-party costs incurred by Solutions+ in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Sales Order.

5. GST

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

6. CARD SURCHARGES

Solutions+ reserves the right to charge credit card or other payment surcharges in the event payments are made using a credit, debit or charge card (including but not limited to Visa, MasterCard, American Express or Diners Club) or if Solutions+ has to make international wire transfers for the services or licenses.

 

14. ACCREDITATIONS

Unless otherwise agreed:

1. All displays or publications of any Deliverables provided to the Client as part of the Services (Deliverables) must, if requested by Solutions+, bear an accreditation and/or a copyright notice including Solutions+’s name in the form, size and location as directed by Solutions+.

2. Solutions+ retains the right to describe the Services and reproduce, publish and display the Deliverables in Solutions+’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.

 

15. CONFIDENTIALITY & RESTRAINT

    1. CONFIDENTIALITY

Except as contemplated by this agreement or a Sales Order, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any confidential information disclosed to it by the other party without its prior written consent. 

This clause does not apply to:

1. Information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence).

2. Information required to be disclosed by any law.

3. Information disclosed by Solutions+ to its subcontractors, employees, or agents for the purposes of performing the Services or its obligations under this agreement.

2. PROTECTION OF CONFIDENTIAL INFORMATION

Both the client and Solutions+ will appropriately protect and secure the other party’s confidential information in a manner consistent with how each party protects their own confidential information and at the standard that is reasonable for the security and protection of confidential information.

3. NO TRANSFER OF RIGHTS

The confidential information of each party is the property of that party. Each party obtains no right, interest or licence in or to the other party’s confidential Information.

 

16. RESTRAINT

For the Term, and for 6 months thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Solutions+ with which the Client had contact during the course of a Service Agreement.

 

17. PRIVACY

    1. Each party will meet the obligations under the Privacy Act 1988 (Cth) (Privacy Act) and obtain consents in relation to personal information where required. 

    2. Each party will comply with the requirements of the other party’s privacy policy concerning the storage, use, disclosure, treatment of personal information, handling information and meeting the notification requirements in the case of data breach.

 

18. INTELLECTUAL PROPERTY

    1. CLIENT CONTENT

The Client grants to Solutions+ (and its subcontractors, employees, or agents) a non-exclusive, royalty free, non-transferable, worldwide, and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.

The Client:

1. Warrants that Solutions+’s use of Client Content as contemplated by a Sales Order will not infringe any third-party Intellectual Property Rights.

2. Will indemnify Solutions+ from and against all losses, claims, expenses, damages, and liabilities (including but not limited to any taxes, fees, or costs) which arise out of such infringement.

 

2. SOLUTIONS+’S IP

Unless otherwise expressly agreed in a Sales Order, the Client will not under these terms, or any Sales Order acquire Intellectual Property Rights in any Solutions+ IP. Any Developed IP will be solely and exclusively owned by Solutions+.

Solutions+ grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Solutions+ IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables. The source code shall remain the exclusive property of Solutions+, and the source code will not be provided to the Client unless explicitly stated in a separate, mutually agreed-upon document.

 

3. IP DEFINITIONS

For the purposes of clause 18 (Intellectual Property):

1. ”Client Content” means any documents or materials supplied by the Client to Solutions+ under or in connection with this agreement or a Sales Order, including any Intellectual Property Rights attaching to those materials.

2. “Developed IP” means any materials produced by Solutions+ in the course of providing Services or Deliverables including but not limited to source code, documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials. 

3. “Solutions+ IP” means all materials owned or licensed by Solutions+ that is not Developed IP and any Intellectual Property Rights attaching to those materials.

4. “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including but not limited to copyright, trademarks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered.

 

19. WARRANTIES

To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or a Sales Order are excluded. 

Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Solutions+’s liability for breach of that non-excludable condition, warranty or guarantee will, at Solutions+’s option, be limited to:

1. In the case of goods, their replacement or the supply or equivalent goods or their repair.

2. In the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

The warranties under this agreement exclude:

3. Solutions+ does not warranty that software, Deliverables or Hosted Services will operate uninterrupted or be error free.

4. Solutions+ is not liable for defects or errors cause by incorrect data entry or use by Client’s users or third parties, or from third party services, equipment or software not supplied by Solutions+. 

5. The Client acknowledges Solutions+ and third party Hosted Services providers cannot provide total system security.

6. Except were stated in this agreement, all other express or implied warranties, including for merchantability, fitness for purpose and non-infringement, are excluded to the full extent permitted by law.

 

20. LIMITATION OF LIABILITY

Solutions+’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement or a Sales Order:

1. Is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, profits, goodwill or reputation, business opportunity, staff, staff or management time, savings, production, use, loss or corruption of data or business interruption, regardless of a party being made aware of the possibility of any such loss or damage and including without limitation where such loss relates to the hosted services described in clause 5 (Hosted Services).

2. Is limited, insofar as concerns other liability, to the total money paid to Solutions+ under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).

 

21. INDEMNITY

The Client indemnifies Solutions+ from and against all losses, claims, expenses, damages, and liabilities (including but not limited to any taxes, fees, or costs) which arise out of:

1. Any breach of this agreement by the Client.

2. Any negligent, fraudulent, or criminal act or omission of the Client or its personnel.

 

22. SUBSCRIPTIONS

    1. Subscription payments must be made in advance for whole renewal periods, consistent with the vendor agreements. 

    2. Refunds and credits cannot be provided where licences are unutilised, are decreased or are terminated within the subscription period.

    3. Where subscription commits have been made, if the Client choses to terminate or novate to another partner, the full subscription commit must be paid in full.

    4. Third party services and software licensed on a subscription basis will terminate on the expiration of the subscription. 

    5. If the Client fails to pay subscription fees by the due date, Solutions+ has the right to suspend the subscription until payment is received. If subscription payments remain unpaid for 60 days beyond a due date, Solutions+ has the right to terminate the subscription rights.

 

23. TERMINATION

    1. TERMINATION BY SOLUTIONS+

Solutions+ may terminate these terms or any Sales Order in whole or in part immediately by written notice to the Client if:

1. The Client has committed a material breach is in breach of any term of these terms or a Sales Order and has failed to remedy the breach within 30 days written notice by Solutions+.

2. The Client fails to pay any fees set out in a Sales Order.

3. The Client becomes subject to any form of insolvency or bankruptcy administration.

2. TERMINATION BY CLIENT

The Client may terminate this agreement: 

1. If Solutions+ has committed a material breach of this agreement or a Sales Order and has failed to remedy the breach within 30 days written notice by the Client.

2. If Solutions+ consents to such termination, subject to the Client’s fulfilment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees).

3. Solutions+ becomes subject to any form of insolvency or bankruptcy administration.

3. EFFECT OF TERMINATION

Upon termination of this agreement, the Client must promptly pay (at Solutions+’ request):

1. Solutions+’s expenses to date.

2. Payments required by Solutions+’s suppliers to discontinue their work.

3. Usual time charges for the work of Solutions+’s staff to date.

4. Solutions+’s standard fees in relation to work already performed.

5. Fees related to the Software for the remaining Initial Term or Renewal Term of the Sales Order.

6. If subscription commits have been made, the full subscription commit cost must be paid in full.

7. An equitable amount by way of profit margin on the preceding items.

8. The Client acknowledges and agrees that, upon termination within the Initial Term or any purported termination without 30 days’ notice during any Renewal Term, it is fair and reasonable for the Client to be required to pay the Fees in accordance with the sales order to cover Solutions+’s liabilities to third-party software providers. 

9. Upon termination of this agreement, Solutions+ must return or destroy any documents or materials supplied by the Client under or in connection with this agreement or a Sales Order (Client Data) as required by the Client.

4. TERMINATION AND CLIENT DATA

Solutions+ has no obligation to maintain or provide access to any data stored in Solutions+ implemented systems after termination. Data stored in the system may be deleted/removed after the account termination date and Solutions+ will not be liable for any losses incurred, directly or indirectly, from loss of data.

5. SURVIVAL

Any provision of these terms (including in a Sales Order) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination, including without limitation clauses 10 (Vendor Agreements and Terms & Conditions), 12 (Service Levels), 13 (Payment), 14 (Accreditation), 15 (Confidentiality & Restraint), 19 (Warranties) and 20 (Limitation of Liability).

 

24. DISPUTE RESOLUTION

    1. The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) Australia and Disputes Tribunal of New Zealand in New Zealand before having recourse to arbitration or litigation.

    2. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC for Australia and Disputes Tribunal Rules for New Zealand (Guidelines).

    3. The terms of the Guidelines are hereby deemed incorporated into this agreement.

 

25. NOTICES

    1. FORM OF NOTICE

A notice or other communication to a party under this agreement must be:

1. In writing and in English; and

2. Addressed to that party to:

   1. The postal address of that party.

   2. The email address of that party that has been regularly used by the parties to correspond during the term of this agreement (unless such email address is known to be inactive by the party giving notice).

2. HOW NOTICE MUST BE GIVEN

A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.

 

26. FORCE MAJEURE

    1. If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement or a Sales Order (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), the Affected Party must give to the other party prompt written notice of:

       1. reasonable details of the Force Majeure; and

       2. Insofar as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation. 

    2. Subject to compliance with clause 25 (Notices), the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.

    3. The Affected Party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.

 

27. GENERAL

    1. GOVERNING LAW AND JURISDICTION

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

2. ASSIGNMENT

A party cannot assign, novate, or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).

3. AMENDMENTS

A Sales Order agreement may only be amended by a document signed by each party.

4. WAIVER

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

5. SEVERANCE

If any part of this agreement is or becomes invalid, that part is severed from this agreement and that severance does not limit or otherwise affect the remaining provisions of this agreement. 

6. FURTHER ACTS AND DOCUMENTS

Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement. 

7. ENTIRE AGREEMENT

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

8. THIRD PARTY BENEFIT

A third party who is not a party to the Sales Order has no right to benefit under or to enforce any of these terms.

9. REVISION

Solutions+ reserves the right to revise or update this Master Services Agreement at their discretion.

10. PREVAILING MASTER SERVICES AGREEMENTS AND CLIENT SPECIFIC TERMS

Where a Master Services Agreement is contained within a signed Sales Order, the version of the Master Services Agreement referred to in the most recently issued invoice will prevail.

Where client specific terms have been added to the Master Services Agreement contained within the signed Sales Order, those terms will be considered a section 28 Special Condition under the prevailing Master Services Agreement

 

28. SPECIAL CONDITIONS

    1. Nil

Revision 21 March 2024