Terms & Conditions

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Technology FX Master Service Agreement 2025 v1.7

(Static Terms Document – Incorporated by Reference)

Parties

This Master Service Agreement (“MSA”) is entered into between:

Technology FX Pty Ltd ACN 674 678 516 (“TECHNOLOGY FX”) of 1/20-30 Stubbs St, Silverwater NSW 2128 and;
the Client as identified in the applicable Services Proposal or Quote that expressly references this MSA.

Background

The Client engages TECHNOLOGY FX to provide information technology products, software and/or services on the terms set out in this MSA, as supplemented and particularised by any Services Proposal, Quote or Work Order that incorporates this MSA by reference.

Composition of this MSA 

This Master Service Agreement comprises: 

• General Key Details (Section A)
• Service Categories & High-Level Descriptions (Section B – Schedules)
• Fees & Payment Schedule (Section C)
• Execution (Section D)
• Fees & Payment Terms & Conditions (Section E)
• SecOps Services Terms & Conditions (Section F) 
• Procurement Services Terms & Conditions (Section G) 
• Support Services Terms & Conditions (Section H) 
• General Terms & Conditions (Section I)
• Dictionary & Interpretation (Section J)

Specific client identity, commencement date, term, detailed scope of services, quantities, fees, SLAs, and any other particulars are defined exclusively in the Services Proposal or Quote that incorporates this MSA by reference.

Section A: General Key Details 

Company:

Technology FX Pty Ltd

ACN:

674 678 516

Address:

1/20-30 Stubbs St, Silverwater NSW 2128

Term:

The Term is the Initial Term together with each succeeding renewal period (if any) of twelve (12) months. The Initial Term is the period of 2 years commencing on the Commencement Date and ending on the agreed expiration date.

Deliverables & Services:

The Deliverables and Services covered by this Agreement are information technology products, software and/or services provided by TECHNOLOGY FX to the CLIENT, as set out in Section B of this Agreement.

Section B: Service Schedules (High-Level Descriptions Only) 

Detailed scope, quantities, pricing and specific SLAs are defined in the Services Proposal or Quote.

Schedule 1 – SEC-OPS Services 

Backup Services 

Fully managed onsite and offsite backup solution for servers that have a TechnologyFX backup agent installed. Utilises Acronis Cyber Protect software. All backups (onsite and offsite) are encrypted. Includes onsite server disk volume backups and onsite and offsite critical business data folder backups, replicated to Acronis Cloud secure storage.

Disaster Recovery & Business Continuity 

Business continuity is provided as per business continuity plan, including restoration test completed every 2 years with evaluation report provided after the test.

Mobile Device Management (MDM) 

Support for MDM platforms (e.g. Microsoft InTune, AirWatch etc). Support may include creation and modification of device policies, enrolment of devices, locking and/or wiping devices, and on-demand reporting.

Monitoring Services 

Specialised monitoring and maintenance of servers and workstation computers via an RMM (Remote Monitoring and Management) tool, including daily monitoring of alerts and logs, review and triage of all alerts/logs, and notification of any security incidents and/or suspected data breaches.

Patching & Upgrade Service 

Fully managed RMM solution for all servers and desktops utilising Ninja RMM. Includes daily or weekly restarts to apply major OS updates, critical and high-risk patching requiring approval by change request, and scheduled Windows updates, security and patching of workstations.

Security Services 

Fully managed IT Security solutions for servers and workstations utilising Acronis Advanced security, CrowdStrike sensors, and Abnormal Security for email. Includes hourly updates, automated system scans, AI detection, virus and malware removal, and management of future IT security applications where appropriate.

Network Security Reporting 

Provision of network security reporting services.

Schedule 2 – Procurement Services

Procurement 

Access to Technology FX service team for product and service consultation, quoting, project management, supply, installation and configuration of software and hardware. All features take current and future requirements, budget and desired business outcomes into account. HaaS model is available upon client request and is dependent on Financing Services.

Financing Service 

Range of financing services through third-party providers and platforms (typically classified as Asset Financing). Servicing and soft costs may be included as part of the finance depending on lender and third-party requirements. Includes monthly review with providers, twice-annual full account review, and annual refresh of full credit limit.

Logistics Management 

Management of incoming and outgoing movement of products to ensure SLA is met/exceeded. Shipping cost added for each delivery.

Warehouse & Storage 

Secure warehousing services for client platforms, peripherals, and agreed items. 24/7 availability (during agreed hours) to image and send in accordance with agreed Service Level Agreements. Includes stocktake, weekly inventory update, monthly inventory report, and monthly stocktake & report.

Schedule 3 – Support Services 

Support Services – Stores 

Full featured managed IT support service including monthly included technical support hours, optional job creation and closure email alerts, 24/7 helpdesk (after hours on-call support agents), remote support, onsite support (travel charges may apply), hardware & software support, service level agreements, job tracking system with client portal access, service management utilising mutually agreed ITIL and ITSM frameworks, incident management by severity, third-party provider support assistance, regular scheduled client liaison and contact, and security breach incident support and remediation using client’s available cybersecurity tools.

Schedule 4 – Talent Services 

Onsite Services 

Onsite support as required to assist with equipment installation, equipment maintenance, electrical works, or data cabling works (charges may apply).

Remote Services 

Remote services defined by client specific requirements, including remote support and client services, dedicated onsite engineers, remote maintenance and contracting staff, and other remote services as specified.

Schedule 5 – Professional Services 

Professional Services 

Services based on client specific requirements including site audits, new stores, store refreshes/upgrades, project management and support, consulting, development and software, research and development, business analysis, and other services as required (fees as quoted per Rate Card).

Section C: Fees & Payment Schedule

Your ongoing costs each month are comprised of all services provided as specified in Section B (Schedule 1 – SecOps Services, Schedule 2 – Procurement Services, Schedule 4 – Talent Services, Schedule 5 – Professional Services); to the extent they are already known. 

Fees & Payment Schedule – Assumptions and Dependencies:

• Quantities and configuration are estimated until an online or on-site audit has been conducted to confirm quantities and configuration requirements.
• It is assumed that a live network and power point will be available and no cabling or electrical work will be required. If required, costs will be quoted and are additional to the above estimates.

Fees & Payment Schedule – Specific Terms & Conditions:

• Our standard Fees & Payment Terms & Conditions relate to these services and are found in Section E at the end of this MSA.
• The General Terms & Conditions of this MSA (outlined in Section I) also apply, to the extent relevant.

Section D: Execution

The Agreement is in effect from the date each Party, by the signatures of its authorised officers, agrees to be bound by the terms comprising the above Section A (Key Details), Section B (Service Schedules), Section C (Fees & Payment Schedule) and the below Sections E to I, along with any Additional Work agreed in accordance with this Agreement.

Section E: Fees & Payment Terms & Conditions 

Fees & Payment Terms

• All Fees are quoted in AUD and as ex-GST amounts and are valid for 30 days, provided no changes are made to the scope as outlined in Section B. The client must pay GST on top of all Fees.
• For Section B Services that are regular managed services each month, Fees are payable by the CLIENT monthly in advance prior to the commencement of the month of service. Invoices will be issued between the 1st and 15th of the month prior, with payment due in full on or before the last Friday of that month (for Services to be conducted in the following month).
• For Section B Services that are not ongoing monthly managed services (eg. Professional Services) THE CLIENT will pay TFX the Fees in accordance with the payment terms in the Work Order or Schedule, as applicable.
• For Section B Services the subject of a Special Service Request, THE CLIENT will pay TFX the Fees in accordance with agreed payment terms for that Special Service Request with the Fees to be calculated by reference to the Rate Card.
• If the Fees payment terms are not specified in a Work Order, a Schedule to this Agreement or a Special Service Request, TFX must provide a valid tax invoice to THE CLIENT in respect of the relevant Services and/or Deliverables. The payment term is fourteen (14) days from the date of the valid tax invoice.

Urgent Requests

• Any requests by the CLIENT for TECHNOLOGY FX to conduct a Special Service Request or any form of Additional Work (including a Work Order or the provision of additional Talent Services pursuant to Section B Schedule 4) within 48 hours of the request being made will be deemed to be an Urgent Request.
• All Urgent Requests will be subject to additional or higher fees, to be determined and quoted by TECHNOLOGY FX at the time of the request and taking into consideration the business impact on the TECHNOLOGY FX team and any other commercial considerations deemed relevant by TECHNOLOGY FX.

Third-Party Costs

• The cost of any third-party software/tools required for TECHNOLOGY FX to perform any of the Services is additional to any monthly Fees charged for the provision of those Services. This includes, but is not limited to, third party costs such as any sec-ops and/or support monitoring tools, any backup tools, any infrastructure costs and so forth.

Additional & Professional Services

• Any Additional Services requested that are not included in Section B of this MSA will be quoted separately at rates outlined in the Rate Card and charged on terms specified in such quotation or Work Order (as the case may be), or failing such notice, on the standard payment terms contained in this Section.For reference, our Professional Services rates as at the date of this Agreement are as outlined in the Rate Card contained at the end of this Schedule. Unless otherwise stated in any Work Order, payment terms are 75% upfront prior to commencement of the Work Order and 25% on completion of the Work Order. Further roles/functions may be added to the Rate Card during the Term upon written notice to the CLIENT.
• The Rate Card fees will be reviewed at the end of each year of the Term and any changes will be notified in writing to the CLIENT.

Late Payments

• Any late payments by the CLIENT of any Fees shall entitle TECHNOLOGY FX to do any of the following, upon written notice:Impose an initial late payment fee equating to the greater of $250 or 2%+GST of the total amount outstanding, to account for the initial administrative cost;Charge interest on the total amount outstanding at the rate of 12%pa, calculated daily, to account for the ongoing cost of administration and credit management;Charge the full cost of any external debt management or recovery services, should this be deemed necessary in the athe CLIENTlute opinion of TECHNOLOGY FX;Suspend any or all Services being delivered to the CLIENT (including, but not limited to, the Software Services and/or the Support Services) until such time as all outstanding monies are paid in full; and/or
• Terminate the Services and/or this MSA should any amounts remain outstanding for more than 14 days after written notice is provided to the CLIENT by TECHNOLOGY FX.

Rate Card

• Our current Rate Card is provided at the date of the Agreement.
• All Rate Card rates will be reviewed every year and are subject to change by notice in writing, with a minimum CPI increase to occur each year.

Section F: Sec-Ops Service Terms & Conditions 

Service Dependencies & Limitations

The Parties acknowledge and agree that many dependencies and/or limitations exist in relation to the provision of the Services and TECHNOLOGY FX is not liable for any effect that any dependencies or limitations may have on the provision of the Services, including but not limited to, the following:

• Access to the Hosted Server service requires an adequate working network connection;
• restoration of data from offsite (Acronis Cloud) storage is dependent on the bandwidth of the site’s internet connection;
• TECHNOLOGY FX cannot manage any MDM system that we do not have appropriate administrative access to;
• the RMM tool is dependent on the network being available and accessible to setup the monitoring agents;
• the RMM system is currently only available on Windows 7 or newer, MacOSX, Linux machines;
• Ninja RMM must be installed on all windows and Linux based servers and workstations on the CLIENT’s network;
• Apple OSX is not supported;Acronis’ solution must be installed on all servers and workstations on the CLIENT’s network; and
• installing and updating anti-virus and anti-malware requires sufficient bandwidth and data allowance.

Service Exclusions (Out of Scope Items)

The Parties acknowledge and agree that the following items are specifically out of scope and excluded from the provision of the Services (predominantly due to technical and/or commercial considerations):

• Backups of data from machines that are offline;
• backups of data that the CLIENT has not identified as business-critical;
• backups to tape drives;
• backups of data that the CLIENT has not identified to be part of the backup routine;
• monitoring of devices to which the TECHNOLOGY FX nominated monitoring agent is not, or cannot, be installed;
• functional limitations of the TECHNOLOGY FX chosen RMM agent installed on either a Mac and Linux workstation;
• patching of third-party apps, these must be handled by the app’s support/sec-ops team;spam email and/or credential phishing from user interaction;
• reporting on any indicators that are not specifically stated to be monitored in the Services; and/or
• anything not specifically included within this document;

Section G: Procurement Services Terms & Conditions

Service Dependencies & Limitations

The Parties acknowledge and agree that many dependencies and/or limitations exist in relation to the provision of the Services and TECHNOLOGY FX is not liable for any effect that any dependencies or limitations may have on the provision of the Services, including but not limited to, the following:

• The Procurement Service is dependent on the information provided to TECHNOLOGY FX by the CLIENT;
• procurement is limited to stock supplies, by various wholesalers within Australia, and these stock supplies are subject to change without prior notice due to manufacturer and/or distributor supply chain issues;
• the CLIENT’s ability to satisfy nominated financier requirements;
• third-party issues beyond the control of TECHNOLOGY FX, including but not limited to issues involving or related to:
  • external suppliers/manufacturers;
  • availability of local or international inventory/components;
  • local and/or international (external) freight companies;
  • supplier and/or product availability;
  • robust internet connectivity that meets the acceptable minimum standard (in TECHNOLOGY FX’s opinion); and
  • any other CLIENT obligations.

Service Exclusions (Out of Scope Items)

The Parties acknowledge and agree that the following items are specifically out of scope and excluded from the provision of the Services (predominantly due to technical and/or commercial considerations):

• non-standard logistics requests or other items outside the SLA or MSA agreed terms; and/or
• Anything not specifically included within this document;

Hardware Deliverables

• All hardware components as per the items, quantities and specifications listed in ‘Section B Schedule 2 – Procurement Services’ will be delivered to the agreed client site.
• Full delivery will have deemed to have occurred once the CLIENT signs for the receipt of all goods.

Installation

• Unless otherwise specified in ‘Section B Schedule 2 – Procurement Services’, onsite installation and configuration will be performed by TECHNOLOGY FX resources.
• All hardware will be positioned as per the agreed store layout configuration. Any further changes to this by the CLIENT, after store layout has been agreed, may incur additional charges.
• TECHNOLOGY FX will deliver one store training session during the installation.
• Unless otherwise specified in ‘Section B Schedule 2 – Procurement Services, TECHNOLOGY FX will perform initial site system monitoring for a period of 7 days post installation.
• TECHNOLOGY FX will not accept liability for poor workmanship by other third-party trades employed by the CLIENT (e.g. electrical, IT networking, carpentry etc). TECHNOLOGY FX reserves the right to recover any additional costs caused by delays or poor workmanship introduced by third parties.

Project Management

• If specified in ‘Section B Schedule 2 – Procurement Services’, TECHNOLOGY FX will project manage the implementation and will produce a basic project schedule to support the deployment.
• TECHNOLOGY FX will then liaise with both the CLIENT and their IT/POS provider and manage all project resources, timelines and deliverables as per the solution design.

Product Warranty

• Unless otherwise specified in ‘Section B Schedule 2 – Procurement Services’, the standard warranty on all products is the manufacturers ‘return-to-base’ warranty from receipt of the product (commonly a 12-months warranty).

Client Obligations

• The CLIENT will provide the TECHNOLOGY FX installation team unimpeded access to the store to complete the deployment.
• The CLIENT will ensure adequate & suitably located network & electrical points are available prior to installation.
• The CLIENT should ensure TECHNOLOGY FX are made fully aware of any OH&S policies or procedures prior to the installation date.

Section H: Support Services Terms & Conditions

Service Dependencies & Limitations

The Parties acknowledge and agree that many dependencies and/or limitations exist in relation to the provision of the Services and TECHNOLOGY FX is not liable for any effect that any dependencies or limitations may have on the provision of the Services, including but not limited to, the following:

• TECHNOLOGY FX support is dependent on the CLIENT Environment and the CLIENT’s POS environment and internet connection being available, accessible and in normal working order;
• support services is in line with monitoring and patching & upgrade schedules;
• support included technical support hours are available to support existing IT equipment. New hardware configuration costs are separate and quoted accordingly;
• the CLIENT portal displays time stamps next to job updates. The CLIENT understands that these time stamps may not accurately reflect when work was done, or the length of time spent on a job;
• support may be limited in non-standard or non-Windows environments;
• support may not extend to directly supporting 3rd party software unless stipulated in this MSA;
• support includes a warranty of 5 business days for support of a new machine. The following caveats apply:
  • the machine must be supplied, configured and installed by TECHNOLOGY FX; and
  • TECHNOLOGY FX will provide complimentary support for a period of up to 5 business days from the time of shipping or installation, if the configuration as supplied is not in accordance with specific instructions provided by the CLIENT to TECHNOLOGY FX at the time of purchase.
• the Support 5 business day warranty does not cover any issues arising from any anomalies in the CLIENT’s IT environment as identified by TECHNOLOGY FX;
• issues based on 3rd party software, for instance, where software exists with no licenced media or TECHNOLOGY FX have not been adequately advised of particular 3^rd party software requirements or have been given incorrect information (as deemed by TECHNOLOGY FX); and
• TECHNOLOGY FX cannot manage any email system that it does not have appropriate administrative access to.

Service Exclusions (Out of Scope Items)

The Parties acknowledge and agree that the following items are specifically out of scope and excluded from the provision of the Services (predominantly due to technical and/or commercial considerations):

• Included support hours may be used to support existing equipment only. Configuration or support for any new equipment will be quoted and charged separately;
• support does not extend to the direct support of phone systems, public address systems or security systems. In the case that support is required, TECHNOLOGY FX will deploy contractors and pass on costs accordingly;
• the installation or modification of any physical fittings are outside of the scope of this service. This includes the use of power tools, modification of building cabling, etc;
• additional system configuration changes (e.g. template changes) are not considered break-fix support issues and would be charged at TECHNOLOGY FX rates per the Rate Card at the time;
• TECHNOLOGY FX does not extend to the direct support of a CLIENT’s network and internet infrastructure. Any support calls found to be related to underlying network/internet issues will incur additional charges at TECHNOLOGY FX rates per the Rate Card at the time;
• support does not extend to the direct support of foot traffic counters, robot troubleshooting, medical dispensing equipment maintenance or any other 3rd party software or device not covered by supported services; and/or
• anything not specifically included within this document.

Support Service Description

Unless otherwise specified in ‘Schedule 3 – Support Services’, TECHNOLOGY FX will provide base support services with the following terms:

• Phone and email support;
• support ticket tracking system;
• remote support – any onsite support required may warrant additional cost; and
• hardware & software support.

Hours of Availability

Support hours are between 8:30am – 5:30pm (AEST) on Monday to Friday, business days only. Custom support arrangements outside of these hours can be made for additional quoted and agreed fees.

Client Obligations

• The CLIENT must not use third party providers to modify any network, service or platform without TECHNOLOGY FX’s prior engagement and approval.
• The CLIENT understands that if a hardware warranty claim is made, then any shipping costs incurred between the store and a TECHNOLOGY FX base location will be at the CLIENTS expense.

Maintenance Notification

• From time-to-time, TECHNOLOGY FX will schedule maintenance windows to perform system updates. These will typically be out of hours and CLIENTS will usually receive a minimum of 5 business days prior notice of these events.
• In the case of any emergency maintenance being required, TECHNOLOGY FX will use best endeavours to provide the maximum amount of notice to the CLIENT and will keep them regularly informed of system status. 

Section I: General Terms & Conditions

1. Scope
   1. This Agreement is a master services agreement under which TECHNOLOGY FX will provide the Services and Deliverables to the CLIENT.
   2. This Agreement supersedes and replaces any prior agreements entered into by the Parties relating to the subject matter of this Agreement.
   3. This Agreement is not exclusive, and nothing in this Agreement prevents TECHNOLOGY FX from delivering its Services (including services or deliverables similar to the Services or Deliverables) to any other person. 
2. Term
   1. This Agreement begins on the Commencement Date and continues for the Initial Term and will automatically renew on each subsequent Anniversary Date for further periods of twelve (12) months duration unless either party gives written notice to the other party at least ninety (90) days prior to the end of:
      1. the Initial Term; or
      2. a subsequent further twelve (12) month period, or
      3. unless terminated earlier in accordance with the terms and conditions of this Agreement.
   2. Each Work Order commences on the Work Order Commencement Date and continues until all project Services and Deliverables specified in that Work Order have been provided, unless terminated earlier in accordance with this Agreement or the terms of the relevant Work Order.
3. Additional Work / Work Orders
   1. If the CLIENT wishes to acquire any new product, project, software and/or services from TECHNOLOGY FX (“Additional Work”), it may notify TECHNOLOGY FX of its requirements to be supplied by preparing and submitting a detailed Work Order Request. The CLIENT must notify TECHNOLOGY FX in the Work Order Request of all its material requirements for the project services and deliverables to be supplied (including a specific notation regarding the intended ownership of IP in relation to that Work Order), including desired timeframes for supply.
   2. Should TECHNOLOGY FX wish to provide the Additional Work requested under any particular Work Order Request, TECHNOLOGY FX must submit a draft Work Order to the CLIENT as soon as reasonably practicable. Each draft Work Order must:
      1. be substantially in the form set out inthe currentWork Order Template;
      2. be generally consistent with any requirements notified by the CLIENT under the Work Order Request;
      3. be consistent with the terms of this Agreement; and
      4. include such other information as required to perform the Additional Work.
   3. TECHNOLOGY FX must calculate all fees for Additional Work included in a draft Work Order in accordance with the rates specified in the Rate Card.
   4. TECHNOLOGY FX must participate in such negotiations with THE CLIENT regarding the draft Work Order as THE CLIENT reasonably requires.
   5. If THE CLIENT wishes to proceed with the purchase of the Additional Work, it must issue the final version of the Work Order (executed by THE CLIENT) to TECHNOLOGY FX.
   6. If TECHNOLOGY FX is willing to accept the final version of the Work Order issued by THE CLIENT, it must execute and return the Work Order to THE CLIENT within ten Business Days of the date of issue.
   7. If TECHNOLOGY FX is under no obligation to accept any particular Work Order and should it not be willing to accept the final version of the Work Order issued by THE CLIENT, it must:
      1. notify THE CLIENT accordingly, specifying the reasons for its decision; and
      2. participate in such further negotiations with THE CLIENT regarding the Work Order as TECHNOLOGY FX deems reasonably necessary to attempt to revise the Work Order into an acceptable version.
   8. Should a Work Order be fully executed, it:
      1. constitutes a binding contract between the Parties; and
      2. incorporates and is governed by the terms of this Agreement (unless explicitly stated otherwise and to what extent).
   9. Should any Work Order Request be particularly detailed, complex or time consuming, TECHNOLOGY FX may charge THE CLIENT in accordance with the Rate Card for negotiating and preparing that Work Order but must notify the CLIENT of such intended charges in writing prior to commencing work on the preparation of the draft Work Order and obtain the CLIENT’s approval of such charges.
   10. TECHNOLOGY FX is not required to supply, and THE CLIENT is not required to pay for, any Additional Work under a Work Order unless and until the Work Order has been signed by an authorised representative of each Party.
   11. To the extent reasonably practicable, the Parties acknowledge that all Additional Work should incorporate the terms and conditions of this MSA, however this is not essential and the Parties are free to negotiate and agree terms for any Additional Work as they deem appropriate in each instance.
4. Services and Deliverables
   1. TECHNOLOGY FX must:
      1. supply the Services and Deliverables to CLIENT in accordance with any applicable Work Order and this Agreement;
      2. ensure that the Services and Deliverables comply with their Specifications, as set out in this MSA and the applicable Work Order;
      3. provide the Services and Deliverables using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent and experienced provider of services and deliverables that are similar to the Services and Deliverables.
   2. Where THE CLIENT has a Special Service Request, THE CLIENT will provide written notice to TECHNOLOGY FX which includes details of the Special Service Request. TECHNOLOGY FX will then provide written confirmation to THE CLIENT if the scope of the Special Service Request is agreed. Fees for the Special Service Request will be in accordance with the Rate Card.
5. CLIENT Obligations
   1. The CLIENT must nominate an Operational Representative in the Key Details section of this Agreement. This person must meet the following minimum characteristics:
      1. be a full-time employee or at least work full-time hours and have access to all of the CLIENT’s staff, including the Contract Representative;
      2. be IT literate and have full access to the CLIENT Environment (including physical access as required);
      3. is authorised by the CLIENT to lodge support jobs with TECHNOLOGY FX; and
      4. be capable of performing simple tasks as directed by TECHNOLOGY FX from time to time.
   2. The CLIENT must provide contact details to TECHNOLOGY FX for all their relevant IT and POS providers to enable TECHNOLOGY FX to provide the Deliverables and/or Services as outlined in this MSA.
   3. The CLIENT must ensure TECHNOLOGY FX is informed of any major changes to their IT and POS environments prior to installation and provide TECHNOLOGY FX with the necessary access/support to configure the solution.
   4. The CLIENT will permit TECHNOLOGY FX and TECHNOLOGY FX Personnel to access the CLIENT Environment, and the relevant Sites, in accordance with this Agreement but only to the extent reasonably required for TECHNOLOGY FX to provide the Services and Deliverables or in accordance with any Additional Work.
   5. All TECHNOLOGY FX Personnel must comply with the conditions of access notified to it by the CLIENT.
   6. TECHNOLOGY FX will be excused from any inability to perform its obligations under this Agreement or any Additional Work to the extent that it is prevented from doing so because it or any TECHNOLOGY FX Personnel are unable to access a Site or the CLIENT Environment provided that:
      1. TECHNOLOGY FX must notify the CLIENT as soon as possible of its inability to access the Site or the CLIENT Environment, including details of what is preventing access and how this is preventing performance of TECHNOLOGY FX’s obligations;
      2. TECHNOLOGY FX must continue to perform any unaffected part of the Services and must re-schedule work and use best endeavours to re-deploy resources as may be reasonably required by the CLIENT to work around any inability to access the CLIENT Environment or the Site;
      3. where TECHNOLOGY FX is required by the CLIENT to re-schedule work and re-deploy resources, TECHNOLOGY FX will not be liable for any subsequent breach of this Agreement or any Additional Work or resultant failure to provide the Services or Deliverables in accordance with the timeframe specified that is the direct result of such re-scheduling or re-deployment; and
      4. TECHNOLOGY FX shall not be relieved from liability for any inability to perform its obligations under this Agreement or any Additional Work to the extent that the CLIENT suspends permission for TECHNOLOGY FX, or specified TECHNOLOGY FX Personnel, to access the Site or the CLIENT Environment due to TECHNOLOGY FX’s material breach of any of its obligations under this MSA or any Additional Work.
   7. The CLIENT will supply the CLIENT Supplied Items to TECHNOLOGY FX as specified, subject to any reasonable terms and conditions as agreed.
   8. The CLIENT provides the CLIENT Supplied Items to TECHNOLOGY FX “as is” and TECHNOLOGY FX is responsible for inspecting and satisfying itself that the CLIENT Supplied Items are fit for the intended purpose and for use by TECHNOLOGY FX in provision of the Services or Deliverables to the CLIENT.
   9. TECHNOLOGY FX must ensure that, after it has been supplied with any CLIENT Supplied Items, the CLIENT Supplied Items are maintained in the same state as they are supplied and that no defects or errors are introduced into the CLIENT Supplied Items by or on behalf of TECHNOLOGY FX.
6. Time for Performance and Delays
   1. Where a delay in the provision of the Services or Deliverables occurs, or is reasonably likely to occur, then TECHNOLOGY FX must immediately notify the CLIENT Contract Representative of:
      1. the length of the delay, or likely delay, and the causes of the delay; and
      2. a plan for, where reasonably possible, avoiding or mitigating against the effects of the delay or likely delay (including by accelerating delivery of other work from TECHNOLOGY FX and providing more resources to perform its obligations under the relevant Additional Work or this Agreement).
7. Acceptance
   1. Once TECHNOLOGY FX notifies the CLIENT that a Deliverable is completed, TECHNOLOGY FX must carry out the relevant Acceptance Tests for that Deliverable at the CLIENT’s cost (outlined in Section C, if any).
   2. If the Acceptance Tests demonstrate to the CLIENT’s reasonable satisfaction that the relevant Deliverable has been supplied in accordance with the Additional Work and meets its Specification, the CLIENT must issue a signed Acceptance Certificate for that Deliverable. 
   3. The CLIENT will not unreasonably withhold or delay the issue of an Acceptance Certificate.
8. Warranties
   1. TECHNOLOGY FX represents and warrants to the CLIENT that:
      1. it has the full legal capacity and power to enter into, and to exercise its rights and perform its obligations under this Agreement and under each item of Additional Work; and
      2. it is a duly incorporated corporation and is not subject to an Insolvency Event;
      3. the Services will be provided with due care and skill and any Deliverables, Developed Materials or other Materials supplied or developed for the CLIENT in connection with this Agreement or any Additional Work will be fit for the purpose for which they are supplied or developed;
      4. to the best of its knowledge and belief, the provision of the Services and any Deliverables, Material or Developed Material provided to the CLIENT and its use by the CLIENT in accordance with this Agreement, will not infringe the rights of any third party (including any Intellectual Property Rights) or breach any applicable Law;
      5. to the best of its knowledge and belief, it is entitled to assign or grant the rights in any intellectual property it assigns to the CLIENT under this Agreement (including under any Additional Work);
      6. the Services and Deliverables will until the end of the relevant Warranty Period (if any) comply with their Specifications and be free from any material errors or defects; and
      7. it will take all reasonable steps to adequately protect the CLIENT Environment and Data against unauthorised access and viruses and other malicious or destructive code.
   2. Without limiting any other right or remedy of the CLIENT, in the event of any breach of the warranty in clause 6.1.6 reported by the CLIENT to TECHNOLOGY FX, TECHNOLOGY FX must repair or rectify the relevant Deliverable (including resolving issues arising during the Warranty Period) at no cost to CLIENT.
   3. The CLIENT represents and warrants to TECHNOLOGY FX that:
      1. it has the full legal capacity and power to enter into, and to exercise its rights and perform its obligations under, this Agreement; and
      2. it is a duly incorporated corporation and is not subject to an Insolvency Event;the CLIENT Supplied Items to be provided by the CLIENT to TECHNOLOGY FX in order for TECHNOLOGY FX to complete any Additional Work and/or provide the Services or any Deliverables or Developed Materials will be provided promptly and with a reasonably sufficient lead time;
      3. to the best of its knowledge and belief, it owns or otherwise has the right to use the Intellectual Property Rights in the CLIENT Materials; and
      4. the exercise by TECHNOLOGY FX of its rights under this Agreement in respect of the CLIENT Materials will not infringe the Intellectual Property Rights of any third party.
9. TECHNOLOGY FX Personnel
   1. TECHNOLOGY FX must ensure that:
      1. there are a sufficient number of appropriately trained and qualified TECHNOLOGY FX Personnel to allow TECHNOLOGY FX to fulfil its obligations under this Agreement and all Additional Work at all times;
      2. TECHNOLOGY FX Personnel are properly qualified, skilled, experienced and trained for the tasks they are to perform and will act at all times in a fit and proper manner.
10. Changes and Improvements
    1. Any Change must be dealt with by the Parties in accordance with the Change Management Procedure and does not become effective or alter the scope of this Agreement or any Additional Work unless dealt with and agreed in accordance with the Change Management Procedure.
11. Third-Party Services
    1. If any Third-Party Services are used as part of the delivery of the Services, the CLIENT acknowledges and agrees (unless otherwise agreed by TECHNOLOGY FX):
    2. Third-Party Services are supplied to the CLIENT on third party terms. The CLIENT may be required to sign or execute further documentation in respect of such Third-Party Services;the CLIENT is solely responsible for the use of the Third-Party Services and any damage that may arise from the use of such Third-Party Services;
    3. the CLIENT is responsible for all fees payable in respect of Third-Party Services, save that where TECHNOLOGY FX has invoiced CLIENT for such fees, TECHNOLOGY FX will pay those fees on behalf of the CLIENT; and
    4. TECHNOLOGY FX is not responsible for any delay or failure to provide Third Party Services and will not be liable for any damage suffered by the CLIENT in connection with such delays or failures.
12. Materials
    1. TECHNOLOGY FX acknowledges and agrees that title to, and Intellectual Property Rights in, all CLIENT Material remains vested in CLIENT.
    2. CLIENT acknowledges and agrees that title to, and Intellectual Property Rights in, all TECHNOLOGY FX Material remains vested in TECHNOLOGY FX.
    3. The CLIENT hereby grants to TECHNOLOGY FX and its Related Bodies Corporate a non-exclusive, royalty free, non-transferable licence to use the CLIENT’s Background Intellectual Property Rights and any CLIENT Material supplied to it by the CLIENT in connection with this Agreement or any Additional Work solely for the purpose of performing its obligations under this Agreement or any Additional Work during the term of this Agreement or the Additional Work.
    4. TECHNOLOGY FX hereby grants to the CLIENT and its Related Bodies Corporate a non-exclusive, royalty free, licence to use any TECHNOLOGY FX Background Intellectual Property Rights and TECHNOLOGY FX Material as may be supplied to the CLIENT and required by the CLIENT for the purpose of being able to receive the full benefit of the Services, Deliverables and any Developed Materials produced by TECHNOLOGY FX pursuant to this Agreement during the term of this Agreement or any Additional Work.
    5. Upon the termination or expiry of this Agreement or any Additional Work, TECHNOLOGY FX must on request, promptly provide to the CLIENT copies of all CLIENT Material which it then holds and then, unless otherwise permitted by the CLIENT, permanently delete and dispose of all other copies of CLIENT Material in its possession and, if requested by the CLIENT, certify that such deletion and disposal has occurred.
13. Data
    1. To the extent that any Intellectual Property Rights vest in or are created in the Data, or any compilation comprising the Data, TECHNOLOGY FX assigns to the CLIENT immediately upon their creation any such rights that may from time-to-time vest in TECHNOLOGY FX or any of the TECHNOLOGY FX Personnel.
    2. TECHNOLOGY FX must:
       1. not assert that there exists any charge or lien over or including any part of the Data;
       2. not assert any other right to payment (however levied) in respect of access to, or other use of, the Data; and
       3. ensure that the CLIENT has and is granted access to the Data as and when required by the CLIENT.
14. Intellectual Property
    1. Notwithstanding anything to the contrary in this Agreement, each Party retains ownership to its Background Intellectual Property Rights.
    2. Unless specified otherwise, all Intellectual Property Rights in Developed Materials shall, immediately on and from their creation, vest in TECHNOLOGY FX automatically and without further act or authority.
    3. The CLIENT grants to TECHNOLOGY FX a non-exclusive, perpetual, royalty free, non-transferable licence to use specific Developed Materials.
    4. The CLIENT acknowledges that any TECHNOLOGY FX Material provided by TECHNOLOGY FX to the CLIENT as part of the development of any Developed Material, and all Intellectual Property Rights in such TECHNOLOGY FX Material, will remain the property of TECHNOLOGY FX or its licensors irrespective of whether or not that material is incorporated in, or used in the development of, the Developed Material.
    5. TECHNOLOGY FX acknowledges that any CLIENT Material provided by the CLIENT to TECHNOLOGY FX to assist in the development of any Developed Material, and all Intellectual Property Rights in such CLIENT Material, will remain the property of CLIENT or its licensors irrespective of whether or not that material is incorporated in, or used in the development of, the Developed Material.
15. Liability
    1. Neither Party will be liable to the other Party under or in respect of this Agreement or any Additional Work (including under an indemnity) for any Consequential Loss, whether in contract, in tort (including negligence), under statute or otherwise.
    2. TECHNOLOGY FX’s maximum liability in connection with this Agreement and any Additional Work, whether in contract, tort (including negligence), under statute or otherwise, is limited to the maximum estimated Fees payable under this Agreement by the CLIENT to TECHNOLOGY FX in any year of the initial Term.
16. Indemnity
    1. The CLIENT must at all times indemnify, hold harmless and defend TECHNOLOGY FX and its Related Bodies Corporate and their respective officers, employees and agents (in this clause referred to as “those indemnified”) from and against any Loss reasonably incurred or suffered by any of those indemnified arising from any suit, action or proceeding by any person against any of those indemnified where such Loss was caused by:
       1. any material breach of this Agreement or any Additional Work by the CLIENT; 
       2. any wilful or negligent act or omission of the CLIENT or the CLIENT Personnel in connection with this Agreement or any Additional Work;
       3. any damage to any real or personal property or illness or death of any person that was caused or contributed to by the CLIENT or the CLIENT Personnel; and/orany material breach of any Privacy Law or confidentiality by the CLIENT or the CLIENT Personnel.
    2. The CLIENT’s liability under this clause will be reduced by the extent to which any Loss arises out of the negligent act or omission of TECHNOLOGY FX, its employees or its permitted subcontractors.
17. Confidentiality
    1. Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party. Each Party undertakes to keep the Confidential Information of the other Party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other Party.
    2. A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under this Agreement or any Additional Work agreed pursuant to this Agreement.
    3. A Recipient may not disclose Confidential Information of the Discloser to any person except:
       1. Representatives of the Recipient who require it for the purposes of the Recipient performing its obligations or exercising its rights under this Agreement (or any Additional Work) or as part of any internal review processes and then only on a need-to-know basis;
       2. with the prior written consent of the Discloser;
       3. if the Recipient is required to do so by law or a stock exchange; or
       4. if the Recipient is required to do so in connection with legal proceedings relating to this Agreement or any Additional Work.
    4. A Recipient disclosing information under this MSA must ensure that persons receiving Confidential Information from it are aware it is the other party’s Confidential Information and do not disclose the information except in the circumstances permitted in this clause.
    5. Subject to clauses 17.3.3 and 17.3.4, on the Discloser’s request, the Recipient must, immediately deliver to the Discloser all documents or other materials containing or referring to the Discloser’s Confidential Information which are:
       1. in the Recipient’s possession, power or control; or
       2. in the possession, power or control of persons who have received Confidential Information from the Recipient under clause 17.3.1 or 17.3.2.
    6. The obligation in clause 17.5 does not apply to Confidential Information of the Discloser that the Recipient requires to perform its obligations under this MSA or is otherwise entitled under any applicable law to retain.
18. Privacy
    1. When handling Personal and/or Sensitive Information as defined in the Privacy Act 1988 (Cth) (Privacy Act), each of the Parties will at all times comply with:
       1. the Privacy Laws in relation to such Personal and/or Sensitive Information; and
       2. any reasonable directions of the other Party in relation to any Personal and/or Sensitive Information received from that Party.
    2. TECHNOLOGY FX will take all reasonable steps to protect Personal information and Sensitive Information that is provided to it under or in connection with the Services against misuse, interference and loss, and from unauthorised access, modification or disclosure.
19. Dispute Resolution
    1. A Party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement or any Additional Work unless that Party has complied with this clause.
    2. A Party claiming that a dispute has arisen in respect of this Agreement or any Additional Work must notify the other Party’s Contract Representative.
    3. During the 10-day period after notice is given under this clause (or such longer period as agreed to in writing by the Contract Representative) the Parties must use all reasonable endeavours to resolve the dispute.
    4. A Party who has complied with this clause may terminate the dispute resolution process by giving notice to the other Party, and on such termination, may institute such legal proceedings as the Party deems appropriate.
20. Insurance
    1. TECHNOLOGY FX must procure and maintain, for the duration of this Agreement and any applicable Additional Work, insurance policies with reputable insurers of the type and to the level of cover reasonably required for the purposes of providing insurance cover for TECHNOLOGY FX’s liabilities under this Agreement.
21. GST
    1. Unless otherwise expressly stated in this Agreement, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
    2. If a party makes a taxable supply under or in connection with this Agreement, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.
    3. The supplier must, as a precondition to the payment of GST, give the other party a tax invoice.
    4. If an adjustment event arises in connection with a supply made under this Agreement, the supplier must give the other party an adjustment note.
    5. If this Agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable.
22. Termination
    1. Either party may terminate this Agreement immediately by giving written notice to the other party if:
       1. the other party has committed a material breach of this Agreement and the breach is incapable of remedy, including a breach of confidentiality, privacy or security requirements provided for under this Agreement;
       2. the other party has committed a material breach of this Agreement that is capable of remedy and does not rectify that breach within 10 Business Days of being given a written notice of the breach; or
       3. subject to sections 415D, 434J and 451E of the Corporations Act, the other party suffers an Insolvency Event.
    2. Upon any termination or expiry of this Agreement:
       1. as soon as practicable, a party must either return or destroy the other party’s Confidential Information, without retaining copies (unless necessary to retain for legal, accounting or other record-keeping purposes and having notified the other party of the specific Confidential Information that will be retained for these purposes);
       2. TECHNOLOGY FX will provide reasonable assistance to CLIENT for a period of sixty (60) days from the date of expiry or termination of the Agreement to enable and facilitate an orderly transition of the Services to another vendor and CLIENT shall pay TECHNOLOGY FX for the provision of this reasonable assistance pursuant to the rates on the Rate Card; and
       3. the parties must co-operate with each other to bring this Agreement to an end in such as a manner so as to minimise any losses or costs to either or both parties.
    3. Termination of this Agreement for any reason does not extinguish or otherwise affect any rights or remedies of either party which arose prior to the time of termination, or the provisions of this Agreement which by their nature survive termination.
23. Force Majeure
    1. Neither Party will be liable for any delay or failure to perform its obligations under this Agreement (or any Additional Work) if such delay or failure is due to a Force Majeure Event. A Party affected by a Force Majeure Event will notify the other Party of the Force Majeure Event as soon as reasonably practicable and will take reasonable steps to mitigate the effects of the Force Majeure Event.
    2. If a delay or failure is caused or anticipated due to Force Majeure, the affected Party’s obligations under this Agreement or the applicable Additional Work will be suspended. If a delay or failure by the affected Party to perform its obligations due to a Force Majeure Event exceeds 60 days, either Party may terminate the Agreement or the applicable Additional Work on providing written notice to the other.
24. Notices
    1. Any formal notice, demand, consent, approval or communication under this Agreement (Notice):
       1. must be in writing or via electronic delivery method and in English directed to the Contract Representative’s email address specified in the Key Details (as varied by any Notice);
       2. must be hand delivered, left at or sent by prepaid post or email to the recipient’s address or email address specified in the Key Details (as varied by any Notice); and
       3. may be given by an agent of the sender.
    2. A Notice given in accordance with this clause takes effect when received (or at a later time specified in it), and is taken to be received:
       1. if hand delivered or left at the recipient’s address, on delivery;
       2. if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia; and
       3. if sent by email, when received by the recipient’s email server (whether or not classified as spam) unless the sender receives an automated message that delivery of the email has failed;
       4. but if the delivery or transmission under paragraph (a) or (c) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours on the next Business Day.
    3. Any operational or day to day notification or communication between the Parties should be conducted via phone and/or text, chat platform or email between each Party’s Operational Representative. Any such communication is not considered to be a formal Notice as outlined in the clauses above.
    4. Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this MSA may be served by any method contemplated by this clause in addition to any means authorised by law.
25. General
    1. This Agreement is governed by the law in force in New South Wales, Australia. Each Party submits to the non-exclusive jurisdiction of the courts of that State.
    2. If a Party does not exercise a right or remedy fully or at a given time, the Party may still exercise it later.
    3. By giving its approval or consent, a Party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
    4. The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.
    5. A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
    6. The indemnities in this Agreement are continuing obligations, independent from the other obligations of a Party under this Agreement and continue after this Agreement ends. It is not necessary for a Party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
    7. TECHNOLOGY FX may assign, transfer, novate or otherwise deal with all or part of its rights or obligations under this Agreement without the other Party’s prior written consent.
    8. This Agreement constitutes the entire agreement between the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter, whether oral or written.
    9. If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
    10. Nothing in this MSA will construe TECHNOLOGY FX as an agent, partner or joint venturer of the CLIENT nor is TECHNOLOGY FX authorised to represent itself as acting, or to incur any obligation, on behalf of the CLIENT.

Section J: Dictionary & Interpretation

1. Definitions

In this Agreement, the following definitions apply unless the context requires otherwise:

• Acceptance Certificate means a written certificate issued by CLIENT to TECHNOLOGY FX in which CLIENT confirms that a Deliverable has successfully passed Acceptance Testing.
• Acceptance Tests means the tests to be conducted by the CLIENT or TECHNOLOGY FX to test whether the Deliverables meet their Specifications as set out in this Agreement or the applicable Additional Work or, if no tests are specified in the Additional Work, such tests that CLIENT reasonably requires.
• Additional Work means any new product, project, software and/or services the CLIENT wishes to acquire from TECHNOLOGY FX as agreed by the Parties in accordance with this Agreement, whether pursuant to a Work Order or via a fully executed amendment to any of the schedules contained in this Agreement.
• Agreement means this agreement comprising all attached Sections and Schedules.
• Anniversary Date means each anniversary of the Commencement Date of this Agreement.
• Background Intellectual Property means all Intellectual Property Rights that were pre-existing and belonging to one Party, whether by ownership, license to use or otherwise, prior to entering into this Agreement, and includes any goodwill associated with or attached to such Intellectual Property Rights.
• CLIENT Environment means CLIENT’s computing environment (consisting of hardware, software and telecommunications networks) whether operated, maintained or utilised by or on behalf of CLIENT.
• CLIENT Material means any Material in which the rights (including Intellectual Property Rights) are owned by, or otherwise licensed from a third party to, CLIENT (including the Data).
• CLIENT Supplied Items means any software, equipment, Data, office facilities, consumables or other items, to be made available by CLIENT for use by TECHNOLOGY FX in supply of the Services or Deliverables to the CLIENT, as set out and agreed in this Agreement or in any Additional Work.
• Business Day means a day that is not a Saturday, Sunday, a bank holiday or a public holiday in Sydney, NSW.
• Business Hours means 9.00am to 5.00pm on a Business Day.
• Change means a modification of, or alteration to, the scope of the Services or Deliverables to be provided under this Agreement including a change to the Fees, the Deliverables, the manner in which the Services are to be delivered or the Specifications.
• Change Management Procedure means the TECHNOLOGY FX procedure for initiating and implementing Changes as annexed to this Agreement (as amended from time to time).
• Claim includes any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature however arising:
  • whether present or future, fixed or unascertained, actual or contingent; and
  • whether at law, in equity, under statute, or otherwise.
• Commencement Date means the commencement date specified in the Key Details.
• Confidential Information means, in relation to the Discloser, all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties or their Representatives before, on or after the Commencement Date relating to the business, technology or other affairs of the Discloser, including the details of the Software and the Products, but does not include information:
  • which is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed to the Discloser;
  • which the Recipient can prove by contemporaneous written documentation was:
    • already known to it at the time of disclosure by the Discloser (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
    • independently developed by the Recipient without reference to the Confidential Information of the Discloser; or
    • which the Recipient acquires from a source other than the Discloser or any of its Representatives where such source is entitled to disclose it on a non-confidential basis.
• Consequential Loss means any indirect or consequential loss or damage which, although in the contemplation of the parties at the time they entered into this Agreement, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach including, but not limited to, loss of profits, loss of data, loss of revenue, loss of opportunity or loss of goodwill.
• Contract Representative means, in respect of the relevant Party, a person appointed by that Party to be its representative for the purpose of managing this Agreement and any disputes arising under it, as specified in the Key Details or as otherwise notified by a Party to the other Party in writing.
• Corporations Act means the Corporations Act 2001 (Cth).
• Data means:
  • all of the information, documents and other data provided by CLIENT to TECHNOLOGY FX to allow TECHNOLOGY FX to produce the Deliverables and perform the Services and its obligations under this Agreement and any Additional Work (including Personal Information and Sensitive Information); and
  • all information, documents, reports and other data accessed, stored, processed or generated in the performance of the Services or the delivery of the Deliverables from time to time, including all information stored in the CLIENT Environment.
• Deliverables means the deliverables (including hardware, software, services or documentation) that TECHNOLOGY FX is required to deliver to CLIENT as described in this Agreement or any Additional Work and any items that are reasonably necessary or incidental to any of those deliverables.
• Developed Material means any Material created, modified or enhanced by or on behalf of TECHNOLOGY FX  in connection with this Agreement or any Additional Work, including any Deliverables.
• Discloser means the party disclosing Confidential Information.
• ESL means any of the electronic shelf labels or similar digital shelf edge products supplied by TECHNOLOGY FX.
• ESL Cloud means the online cloud platform that interfaces with the ESL products, but for clarity, this does not include Middle X or X Content.
• Expiration Date means the expiration date specified in the Key Details.
• Fees means the fees payable by the CLIENT to TECHNOLOGY FX under this Agreement for the provision of any Deliverables, Products, Software and/or Services, including those identified in Section C of this Agreement or pursuant to any Additional Work.
• Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party, including (but not limited to):
  • pandemic, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, drought or meteor;
  • war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;
  • act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
  • confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority;
  • a government order or decree; or
  • any faults, defects, incorrect operation of or other circumstances affecting telecommunications, networks, systems and any other facilities used or required by or on behalf of CLIENT for accessing and making use of the Products and Deliverables (other than the Products or Deliverables themselves).
• TECHNOLOGY FX Material means any pre-existing Material that was created prior to, and not in connection with, this Agreement or any Additional Work (or any other agreement entered into previously by the Parties), in which the Intellectual Property Rights are owned by TECHNOLOGY FX.
• TECHNOLOGY FX Personnel means the individual persons employed or engaged by TECHNOLOGY FX to assist TECHNOLOGY FX in the performance of any of the Services or delivery of the Deliverables.
• Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi- judicial body, department, commission, authority, tribunal, agency or entity.
• GST means any goods and services or value added tax.
• Initial Term means the initial period as specified in the Key Details ending on the Expiration Date.
• Insolvency Event means any of the following events:
  • an application is made to a court for an order or an order is made that a body corporate be wound up;
  • an application is made to a court for an order appointing an Insolvency Official or one of them is appointed, whether or not under an order;
  • except to reconstruct or amalgamate while solvent on terms approved by an Insolvency Official, a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or compromise or assignment for the benefit of all or any class of its creditors or members or it proposes a reorganisation, moratorium or other administration involving any of them;
  • a body corporate resolves to wind itself up or otherwise dissolve itself or gives notice of intention to do so, except to reconstruct or amalgamate while solvent and on terms approved by an Insolvency Official;
  • a body corporate is or states that it is unable to pay its debts as and when they fall due;
  • a body corporate fails (in accordance with the terms of section 459F of the Corporations Act) to comply with any statutory demand served pursuant to section 459E of the Corporations Act;
  • a body corporate is or makes a statement from which it may be reasonably deduced by an Insolvency Official that the body corporate is, the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act;
  • a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation;
  • execution or other process issued on a judgment, decree or order of a court in favour of a creditor of a body corporate is returned wholly or partly unsatisfied;
  • any steps are taken by the ASIC to dissolve a body corporate or a body corporate is dissolved;
  • a person becomes an insolvent under administration as defined in section 9 of the Corporations Act or action is taken which could result in that event;
  • a body corporate becomes insolvent as defined in section 95A of the Corporations Act or Regulation 7.5.02(1) of the Corporations Regulations; and/or
  • anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
• Insolvency Official means any one of a liquidator, provisional liquidator, administrator, controller, managing controller, receiver, receiver and manager or similar officer in respect of a body corporate.
• Intellectual Property Rights means all intellectual property rights including, without limitation, copyright, designs, trade marks (whether registered or not), trade names, trade secrets, know-how, patents, invention, discoveries and any other rights of proprietary nature in, or the results of, intellectual activity in the industrial, commercial, scientific, literary or artistic field, whether registrable or not and wherever existing in the world.
• Key Details means the key details set out in Section A (Key Details) of this Agreement.
• Laws means all local, federal and state laws (as the same may be amended from time to time) including rules of common law and equity, statutes, regulations, determinations, by-laws, ministerial directions, subordinate legislation, ordinances, mandatory codes, standards (including Australian Standards) and guidelines, writs, orders, injunctions and judgements.
• Loss means any losses, liabilities, damages, costs and expenses (including without limitation reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) incurred by a party.
• Material includes any document, report, specification, diagram, drawing, software, data, database, prototype, machine, equipment, tool, part or any item or thing whatsoever including in a physical or in an electronic form.
• Middle X means the middleware software that integrates the with the ESL Cloud platform.
• Operational Representative means the person nominated by the CLIENT, who meets the characteristics as outlined in Section I, as the primary point of contact for liaising with TECHNOLOGY FX in relation to this MSA.
• Parties means CLIENT and TECHNOLOGY FX and Party means either one of them as the context dictates.
• Personal Information has the meaning given to that term under the Privacy Act 1988 (Cth).
• Privacy Laws means all laws which regulate the access to or the use, disclosure, retention or processing of Personal Information, including the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act 2014 (Vic), the Health Records and Information Privacy Act 2002 (NSW) and the Spam Act 2003 (Cth).
• Products means the products listed in any Schedule of this Agreement or identified in any Additional Work.
• Rate Card means the standard professional services hourly rates for TECHNOLOGY FX, as outlined initially in Section E, and as amended from time to time.
• Recipient means the party receiving Confidential Information.
• Related Bodies Corporate has the meaning given in the Corporations Act 2001 (Cth).
• Sensitive Information has the meaning given to that term under the Privacy Act 1988 (Cth).
• Services means the services that TECHNOLOGY FX is required to supply to the CLIENT under this Agreement or any Additional Work and any other services that are reasonably necessary or incidental to those services.
• Site means any location or facility owned, controlled or occupied by CLIENT or operated on behalf of CLIENT that TECHNOLOGY FX and TECHNOLOGY FX Personnel will be required to access in order to provide any of the Services, or Deliverables including those locations specified in any Additional Work.
• Software means the software listed in any Schedule of this Agreement or identified in any Additional Work.
• Special Service Request means an ad hoc request for minor additional services, which concern or relate to one or more Services included in Section B of this Agreement and which will be invoiced in accordance with the Rate Card;
• Specification means the functional and technical requirements for the Deliverables, Products, Services and/or Software as set out in this Agreement or in any Additional Work.
• Term means the term of this Agreement, as specified in the Key Details, as extended if applicable, unless terminated earlier in accordance with this Agreement.
• Third Party Services means any services provided by a third party in the provision of the Services, including subscription-based or cloud-based services or infrastructure.
• Warranty Period in relation to a Service or Deliverable, means the period specified as such for that Service or Deliverable in this Agreement or the relevant Additional Work.
• Work Order means a written agreement between the Parties, substantially in the form of the Work Order Template, for TECHNOLOGY FX to complete Additional Work for the CLIENT as per the CLIENT’s Work Order Request;
• Work Order Request means the work order request form set out in Annexure 1 to this Agreement (or as amended from time to time by TECHNOLOGY FX) containing the base set of information required to request a Work Order;
• Work Order Template means the work order form set out in Annexure 1 to this Agreement (or as amended from time to time by TECHNOLOGY FX) containing the base set of information required to complete a Work Order;
• X Content means the proprietary content software platform that designs and sends content to ESL products.

2. Interpretation

• Unless the contrary intention appears, a reference in this Agreement to:
  • a document (including this Agreement) includes any variation or replacement of it;
  • a clause, Section or Schedule is a reference to a clause, section or schedule in this Agreement;
  • a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  • law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
  • the singular includes the plural and vice versa;
  • the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
  • a particular person includes a reference to the person’s executors, administrators, successors and substitutes (including, persons taking by novation) and assigns;
  • a group of persons or things is a reference to any two or more of them jointly and to each of them individually; and
  • the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind.
• No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
• In the event of any ambiguity, discrepancy or inconsistency arising between any clauses, Sections or Schedules of this Agreement or of any Additional Work, the order of precedence that applies is as set out in the Schedules contained in Section B of this Agreement.
• Headings are included for convenience only and are not to affect the interpretation of this Agreement.