The MSA provides the standard terms of business applicable to the delivery of any engagement of technology professional services. When services are provided by MUNIvers, they are done so under a 'Statement of Work' which imports the terms of the MSA set out below.
Jurisdiction: Canada Australia England and Wales
In the Agreement, unless the context explicitly provides otherwise:
references to an agreement means the Agreement and includes any schedules, annexures or attachments, references to a party means a party to the Agreement, references to a party includes that party’s successors, permitted substitutes or permitted assigns, and references to a clause is to a clause in the Agreement (and includes any subclause or subparagraph);
words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders, the singular includes its plural and vice versa, varying grammatical forms of defined words or phrases have their corresponding meanings, and words such as ‘including’ or ‘for example’ do not limit the meaning of the words preceding or following them;
references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation, and references to any agreement or document is to the agreement or document as amended, supplemented, novated or replaced from time to time;
if the day on (or by which) anything is to be done or the day on which something occurs, is not a Business Day, then it must only be done, or it is deemed to have occurred, on the next Business Day, and a reference to time is to the time in Sydney, New South Wales;
references to a currency are references to Australian dollars;
obligations, representations, warranties and indemnities under the Agreement by or in favour of two or more parties bind or benefit them jointly and each of them severally; and
nothing in the Agreement is to be interpreted against a party solely on the ground that the party or its advisers drafted it, and headings, or a reference to a clause by its heading, are used for convenience only and the wording of the heading does not affect interpretation.
Capitalised words and phrases in the Agreement have their meaning as set out below, unless the contrary intention appears.
Agreement means the agreement between MUNIvers and the Customer(s), created by executing a Statement of Work which incorporates this Master Services Agreement by reference, and including any other documents incorporated by reference into that Statement of Work.
Customer(s) means the counterpart(y/ies) to MUNIvers specified in a Statement of Work.
Related Body Corporate means, in relation to a party, a Related Body Corporate within the meaning of section 50 of the Corporations Act 2001 (Cth) (or, in any other jurisdiction, the term that most closely corresponds to that meaning under the law of the jurisdiction in which the party is incorporated).
Commencement Date means the date the last party to execute the Statement of Work does so, unless the Statement of Work expressly provides for a different Commencement Date.
Change Request or Variation means a written variation to the Agreement executed by the parties.
Software System means a software system and all its constituent Material which is the subject of any Services provided by MUNIvers under a Statement of Work, usually the MUNIvers software itself but also may include peripheral software.
Material means any data, records, database entries, information, software, source code, documentation, manuals, guides, designs, drawings, specifications, reports, notes, calculations, photographs, audio-visual materials or recordings, in any form (whether tangible or intangible, and whether held in soft or hard copy).
Customer Data means data, records, database entries or information constituting operational records of the Customer’s business (for example, ratepayer records, transaction records, address registers, integration payloads or production extracts) that is provided to, or accessed by, MUNIvers for the purpose of being loaded into, migrated to, configured against or tested with a Software System.
MUNIvers Materials means Material owned or controlled by MUNIvers (or its licensors), including any Material that MUNIvers brings to, develops independently of, or uses in connection with the Services, but excluding Customer Materials and Deliverable Materials.
Customer Materials means Material owned or controlled by the Customer (or its Related Bodies Corporate or licensors) that is provided or made available to MUNIvers in connection with the Services, and includes Customer Data.
Deliverable Materials means Material produced by MUNIvers in the course of performing the Services, including where it forms part of, or is created for the purpose of, a Deliverable.
Confidential Information of a party means any non-public information disclosed by or on behalf of that party to another party in connection with the Agreement that is identified as confidential at the time of disclosure, or that by its nature or the circumstances of disclosure ought reasonably to be treated as confidential. It includes (without limitation) business plans and strategies, financial and pricing information, methodologies, technical information and know-how, designs, source code, trade secrets, personnel information, the identity of customers and suppliers, and the terms of the Agreement. Confidential Information does not include Customer Data.
Deliverables means an agreed outcome or item specified on an Statement of Work to be achieved or provided as a result of the Services subject to any inputs, instructions or Materials to be provided by the Customer.
Intellectual Property Rights means all rights in patents, trade marks, copyright, designs, trade secrets, know-how, confidential information, database rights and analogous rights, whether registered or unregistered, in any jurisdiction, including any ‘Moral Rights’ such as the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work and the right not to have authorship of a work falsely attributed, if such Moral Rights are available in the jurisdiction.
Services means the MUNIvers services particularised on the Statement of Work and performed pursuant to the Agreement.
Professional Services Rates means the hourly and/or daily rates for Services outlined in a Statement of Work.
Statement of Work means a written document by that name executed by MUNIvers and a/the Customer(s) which incorporates this Master Services Agreement by reference.
The following provisions, along with any others which by their nature are intended to survive, survive termination or expiry of the Agreement: Intellectual Property Rights, Payment and Cancellation Terms; Liability; Confidentiality; Data Protection; Incident Response; Non-solicitation and Sales Taxes.
MUNIvers will prepare a Statement of Work encapsulating the terms of the Services to be provided to the Customer as well as any Deliverables. Once the Statement of Work is agreed between the parties, the Customer and MUNIvers will execute it. The executed Statement of Work creates the Agreement between the parties importing the terms of this Master Services Agreement as well as any other terms expressed on the Statement of Work and any documents incorporated by reference. Each Statement of Work creates a discrete contractual agreement (unless expressly provided otherwise) and changes to an existing Statement of Work are handled only by Variation.
The following order of precedence shall apply to documents incorporated by reference into the Agreement, where terms further down in the list are superseded by earlier ones to the extent of any inconsistency:
terms on the Statement of Work expressed to specifically replace/supplement those in the Master Services Agreement;
the terms on this Master Services Agreement;
any other terms on the Statement of Work; and
documents incorporated by reference.
The terms set out in the Agreement documents (the Statement of Work, this Master Services Agreement and any other terms incorporated by reference) are the whole and entire agreement in relation to its subject matter and supersede all oral and written communications by or on behalf of the parties leading up to its creation and execution. This includes any pre-contractual representations of any form, including a Customer’s request for proposal/quote/information (RFx) issued prior to the creation of the Agreement. In other words, the parties intend that the terms of the Agreement capture all of the terms and representations made in the RFx that are intended to have contractual force.
Unless expressly modified in a Statement of Work, the warranties and obligations in this clause apply to each party throughout the term of the Agreement.
Each party must perform its obligations under the Agreement in a skilful, diligent, responsive and professional manner following good industry practice where applicable. This applies whether it is MUNIvers delivering the Services, or the Customer producing any inputs, providing any approvals, paying any amounts due or making other contributions on which MUNIvers’ performance is contingent.
Each party must provide the other party with full and frank disclosure of material matters within its knowledge that may affect the timely performance of the Agreement.
At any premises or facilities under its control, each party must ensure a safe working environment for the other party’s personnel and comply with applicable workplace health, safety and security laws. When attending the other party’s premises or facilities, each party must comply with that party’s reasonable directions and procedures relating to workplace health, safety and security.
The Customer must provide MUNIvers and its subcontractors with appropriate access to its property, premises, systems and personnel reasonably required for the performance of the Service.
Each party must comply with all laws applicable to it in connection with the Agreement. In MUNIvers’ case, this includes its obligations as an employer in respect of minimum employment conditions, industrial relations and anti-discrimination, and workplace health, safety and workers compensation legislation.
In the Statement of Work, MUNIvers may set out assumptions, as well as any inputs and responsibilities of the Customer in connection with the delivery of the services or production of Deliverables (each being a Dependency). If the Customer fails to produce any inputs, discharge its responsibilities or if an assumption proves not to be true (a Dependency Failure), then:
MUNIvers will not be responsible for any failure to perform obligations under the Agreement in connection with the Dependency Failure;
the Customer will not unreasonably withhold its approval to a Change Request to the extent reasonably required to reflect the impact of the Dependency Failure (including on any agreed timeframes and fees or expenses); and
MUNIvers may terminate the Agreement giving 5 Business Days’ notice if a suitable Change Request is not entered into between the parties to address the Dependency Failure.
Except as expressly provided in the Agreement, MUNIvers makes no representation or warranty of any kind whether express, implied, statutory or otherwise, and specifically disclaims all implied representations and warranties, including any implied warranty of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
This clause governs Intellectual Property Rights and licensing of Materials produced or provided in connection with the Services. It does not confer any right or licence in respect of the Software System itself, any licence to which is purchasable under a separate agreement.
Each party retains all Intellectual Property Rights in its own Materials, together with the rights of its licensors. Nothing in the Agreement transfers, assigns or grants ownership of those rights, except as expressly provided.
Subject to the Agreement, each party grants the other an irrevocable, perpetual, non-exclusive, worldwide, paid-up licence to hold, reproduce, adapt and otherwise use the granting party’s Materials, on the following terms:
The Customer and its Related Bodies Corporate may use the MUNIvers Materials and Deliverable Materials for the Customer’s internal business purposes only. Any commercial use (such as resale) is prohibited; and
MUNIvers may use the Customer Materials to the extent required to perform the Agreement (including incorporation into any Deliverable or Deliverable Material) or to perform any other agreement between the parties (such as a separate support agreement). This licence is revocable, but only after expiry or termination of the Agreement or any other agreement the Customer Materials are being used in connection with.
Each party warrants that it has the rights necessary to grant the licences it grants under the Agreement, and that the other party’s use of its Materials in accordance with the Agreement will not infringe the Intellectual Property Rights of any person.
Where MUNIvers Materials or Deliverable Materials are made available to, or used by, a Related Body Corporate of the Customer under the licence in this clause, the Customer must ensure that the licence terms are enforceable by MUNIvers directly against that Related Body Corporate as a third-party beneficiary.
Where the Customer requires MUNIvers to use any Materials owned or controlled by a Related Body Corporate of the Customer, the Customer must, before MUNIvers’ use of those Materials, procure a licence from that Related Body Corporate to MUNIvers on terms equivalent to those granted by the Customer under the Agreement.
Subject to the Customer’s compliance with this clause, MUNIvers will indemnify the Customer against all liability, losses, damages, costs and expenses suffered or incurred as a result of any claim alleging that any MUNIvers Materials or Deliverable Materials, or the Customer’s use or possession of them, infringe the Intellectual Property Rights of a third party (an IP Claim). This indemnity does not extend to Materials provided by a third party (for example, third-party software).
Upon becoming aware of any actual or anticipated IP Claim the Customer must promptly notify MUNIvers in writing, allow MUNIvers to take control of the conduct and settlement of the IP Claim (with MUNIvers keeping the Customer informed), and at the Customer’s own cost co-operate with MUNIvers and make its employees available to give statements, information and evidence as MUNIvers reasonably requests.
If MUNIvers reasonably considers that an IP Claim is likely to result in any Loss or Liability, the Customer must allow MUNIvers, at MUNIvers’ cost, to either obtain for the Customer the right to continue to use any infringing Material, or modify or replace the Material so that it becomes non-infringing without causing a material diminution in performance or function.
All fees payable under this Agreement will be invoiced by MUNIvers as set out in the Statement of Work (for instance, in advance or in arrears) and will be due and payable by the Customer within thirty (30) days from the date of the invoice. Charges for applicable taxes, duties or other sales charges will be added to the invoice.
In addition to the fees payable under the Agreement, MUNIvers will be reimbursed, by the Customer for all MUNIvers staff travel time at half the Professional Services Rates plus all out-of-pocket expenses, plus applicable taxes. These expenses will be invoiced on a monthly-in-arrears basis and are only payable where MUNIvers staff are required to travel outside of their regular metropolitan area of work.
If the Customer should fail to pay any invoice within thirty (30) days from the date of the invoice, MUNIvers may charge the Customer interest and recovery costs for the overdue period, calculated at the Commonwealth Bank of Australia’s Corporate Overdraft Reference Rate (CORR) for a Business Overdraft plus 5% per annum, subject always to applicable law.
On each anniversary of the Commencement Date, the Professional Services Rates provided in a Statement of Work will increase in line with the percentage change in the Australian Consumer Price Index (weighted average eight capital cities, all groups index), as published by the Australian Bureau of Statistics for the preceding 12 months, plus 2%, unless the Statement of Work expressly provides otherwise. The increase will be calculated as at the date of MUNIvers’ invoice for the next payment.
If the Customer cancels professional services scheduled under a Statement of Work, MUNIvers may charge a cancellation fee equal to 50% of the fees that would otherwise have been payable for those services where 4 to 7 Business Days’ notice is given, or 100% of those fees where 3 or fewer Business Days’ notice is given. MUNIvers will use reasonable efforts to reassign the affected personnel and will reduce the cancellation fee to the extent it is able to do so. Regardless of notice given, the Customer must reimburse MUNIvers for any incidental costs (such as pre-booked travel or accommodation) that cannot be defrayed.
MUNIvers must, unless specified otherwise in a Statement of Work, have and maintain valid and enforceable insurance policies to levels specified in a Statements of Work. Within 5 Business Days of a request by the Customer, MUNIvers will provide proof of the currency of the insurances, in the form of a valid insurance certificate.
Subject to the Data Protection Super Cap and the Exclusions from the Liability Cap subclause below, the total aggregate liability of MUNIvers (whether under statute, in contract or in tort, including for negligence, or otherwise) for all loss, damage, costs and expenses suffered or incurred by the Customer under or in connection with the Agreement is limited to an amount equal to the total fees paid or payable by the Customer pursuant to the Agreement (the Liability Cap).
The Liability Cap does not apply to MUNIvers’ liability arising from a breach of its obligations under the Data Protection clause. Instead, MUNIvers’ total aggregate liability for all claims arising from a breach of its obligations under that clause is limited to three hundred thousand dollars ($300,000) (the Data Protection Super Cap).
Unless specified otherwise in a Statement of Work, neither the Liability Cap nor the Data Protection Super Cap applies to any liability arising out of:
a material breach of the Confidentiality clause;
personal injury (including sickness or death of a person);
loss of, or damage to, tangible property; or
any fraud or any wilfully unlawful act or omission.
Nothing in this clause limits or excludes any liability that cannot be limited or excluded under applicable law.
To the extent permitted by law, neither party is liable to the other (whether in tort, contract, statute or otherwise) for any indirect, special, incidental or consequential loss or damage. The parties agree that loss of goodwill, profits, revenue, future contracts, opportunity, anticipated savings, and (except to the extent the loss arises from a breach by MUNIvers of its obligations under the Data Protection clause, in which case MUNIvers’ liability is subject to the Data Protection Super Cap) loss or corruption of data, are excluded as consequential loss, whether or not the parties had knowledge of, or contemplated, those losses at the time the Agreement was made.
Each party must take reasonable steps to mitigate any losses, damages, costs or expenses sustained or incurred as a result of any act or omission (including any breach or default of the Agreement) by the other party.
MUNIvers may suspend the performance of all or any part of the Services by written notice to the Customer if:
the Customer fails to pay any undisputed amount within 5 Business Days after receiving notice that the amount is overdue;
MUNIvers reasonably believes that continued performance would expose either party to a security, regulatory or legal risk that cannot be adequately addressed without suspension;
an Input Failure or Assumption Failure has materially impeded performance and the parties have not, within a reasonable time, agreed a Change Request to address it; or
MUNIvers is prevented or delayed in performing by an event beyond its reasonable control that was not reasonably foreseeable and could not have been avoided by reasonable contingency planning (a Force Majeure Event), provided MUNIvers promptly notifies the Customer of the event and its expected duration and uses commercially reasonable efforts to mitigate and resume performance.
Suspension does not relieve the Customer of any obligation to pay fees that have accrued, or that would have accrued for Services that the Customer has prevented MUNIvers from performing. MUNIvers will resume the Services promptly once the cause of suspension has been resolved, and the Customer is responsible for the reasonable costs of resumption (including any re-mobilisation costs) where the suspension was caused by Customer non-payment, breach or input failure.
The rights of suspension in this clause are without prejudice to MUNIvers’ right to terminate the Agreement.
The Agreement begins on the Commencement Date and continues until terminated in accordance with its terms.
MUNIvers may terminate the Agreement:
immediately by written notice if the Customer fails to pay any fees and does not remedy the failure within 20 Business Days of written notice from MUNIvers; and/or;
as set out in the ‘Dependency Failure’ clause.
Either party may terminate the Agreement:
immediately by written notice if the other party: ceases to carry on business as a going concern; ceases to be able to pay its debts as they fall due; or becomes the subject of any application, proceeding or action (in its domestic jurisdiction or overseas) relating to bankruptcy, insolvency, administration, receivership, liquidation or an assignment for the benefit of creditors. A party must notify the other in writing immediately on becoming aware that any of the aforementioned has occurred or is proposed in respect of itself; or
if a suspension on the grounds of a Force Majeure Event continues for more than 60 consecutive days, by written notice without liability for the termination itself, without prejudice to accrued rights.
The rights of termination in this clause are without prejudice to any other rights or remedies a party may have under the Agreement.
A party that receives Confidential Information (the Receiving Party) from the other (the Disclosing Party) must use it only for the purposes of the Agreement, disclose it only to those of its employees, agents, Related Bodies Corporate and contractors who reasonably need it for those purposes and are bound by confidentiality obligations at least as protective as those in this clause, and take reasonably practicable steps to keep it secure and under the Receiving Party’s control.
These obligations do not apply to Confidential Information that:
exists only in the form of Customer Data (which is instead subject only to the obligations under the ‘Data Protection’ clause);
was already in the Receiving Party’s possession without confidentiality obligations before disclosure by the Disclosing Party; is independently developed or acquired by the Receiving Party without use of the Disclosing Party’s Confidential Information;
is disclosed to the Receiving Party by a third party not bound (directly or indirectly) by confidentiality obligations to the Disclosing Party; and/or
is or becomes publicly available other than by breach of this clause; or is required to be disclosed by law, court order, or to a government, regulatory or financial authority.
MUNIvers will use Customer Data only for the purposes of performing the Services and discharging its obligations under the Agreement, and will not wilfully disclose Customer Data to any third party except as necessary for those purposes or as required by law, court order, or a lawful request from a government, regulatory or financial authority.
MUNIvers will implement and maintain administrative, technical and physical systems, processes and controls that are designed to protect Customer Data from unauthorised access, use, disclosure, loss, alteration or destruction, having regard to the nature and sensitivity of the Customer Data, the state of the art, and the cost of implementation.
If MUNIvers becomes aware of any event that it reasonably believes constitutes unauthorised access to, disclosure of, use of, or damage to Customer Data (a Security Breach), MUNIvers will:
notify the Customer of the Security Breach without undue delay and in any event within seventy-two (72) hours of becoming aware of it, providing all relevant details available at the time (except details that could compromise the security of data belonging to other customers or the integrity of an ongoing investigation); and
use commercially reasonable efforts to mitigate any harmful effect of the Security Breach.
The Customer is solely responsible for the following matters, insofar as they pertain to the performance of Services:
the accuracy, quality and legality of Customer Data, the means by which the Customer acquired Customer Data; and
protecting the security of usernames, passwords and any other access credentials required in the course of performance of the Services, including implementing policies and procedures to prevent unauthorised use of those credentials, and adherence to the principle of least privilege insofar as the Customer supplies the credentials to MUNIvers.
During the term of the Agreement and for 12 months after its termination or expiry, the Customer must not, directly or indirectly, solicit, induce, encourage or cause any person engaged by MUNIvers (whether as an employee, contractor, subcontractor, supplier or otherwise) to cease, reduce or alter that engagement.
The Customer must pay MUNIvers liquidated damages for any breach of the above restriction equal to 25% of the gross annual salary or fees payable to that person within the next 12 months, as at the date of the breach. The parties agree this is a genuine pre-estimate of MUNIvers’ loss in having to replace the previous arrangement and for the damage and/or disruption to its business operations. The Customer acknowledges that damages alone may not be an adequate remedy and that MUNIvers may seek injunctive or other equitable relief, without prejudice to any other rights or remedies.
All Fees are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added (VAT), goods and services (GST), sales, use, or withholding taxes, assessable by any jurisdiction (collectively, ‘Taxes’).
The Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If MUNIvers has a legal obligation to pay or collect Taxes for which Customer is responsible under this Clause, MUNIvers will invoice Customer and Customer will pay that amount unless Customer provides MUNIvers with a valid tax exemption certificate authorised by the appropriate taxing authority.
All payments by Customer shall be made free and clear of, and without reduction for, any withholding taxes. If Customer is required by law to withhold any Taxes from its payments to MUNIvers, Customer shall (i) make such deductions and (ii) pay such additional amounts to MUNIvers as are necessary to ensure that MUNIvers receives the full amount that it would have received had no such deduction been made.
For the purposes of calculating Taxes, MUNIvers will rely on the billing address provided by the Customer. Customer must notify MUNIvers immediately of any changes to its tax status or registration numbers (e.g., GST/HST number, PST number, QST number, or Business Number).
If the Customer is required to reimburse MUNIvers for any expenses, the amount payable will be the actual cost incurred by MUNIvers less any input tax credits or similar recoveries MUNIvers is entitled to claim. If the reimbursement is itself subject to Taxes, the Customer shall pay an additional amount equal to those Taxes.
The Agreement is the whole and entire agreement between the parties in relation to its subject matter and supersedes all prior oral and written communications by or on behalf of any party.
No party may assign its rights or obligations under the Agreement without the prior written consent of the other parties, which may be given, withheld or made conditional in their absolute discretion.
A failure or delay in exercising a power or right does not operate as a waiver, and the exercise of a power or right does not preclude its future exercise or the exercise of any other power or right. No variation, waiver or consent to a departure from the Agreement is effective unless in writing and executed by the parties.
A Statement of Work (and any Change Request or Variation or other document executed under the Agreement) may be executed in any number of counterparts, each of which is an original and which together constitute one instrument. The parties consent to execution by electronic signature (including via a digital e-signature platform or by signing a printed copy and returning a scanned or photographed image), and an electronically executed counterpart has the same effect as an original signed in wet ink.
Any provision of the Agreement that is prohibited, void, illegal or unenforceable in a jurisdiction is ineffective in that jurisdiction only to that extent and is severable, without affecting the validity or enforceability of that provision in any other jurisdiction or of the remaining provisions of the Agreement.
Each party will do, sign, execute and deliver all agreements, documents, instruments and acts reasonably required of it by notice from another party to give full effect to the Agreement and the rights and obligations of the parties under it.
A notice or other communication in connection with the Agreement must be in English and delivered: (a) personally, against a receipt signed by a person employed by the intended recipient; (b) by post to the recipient’s physical address, deemed received on the third Business Day after posting; or (c) by email to the address nominated by that party in the Statement of Work (or as updated by notice), deemed received when it enters the recipient’s information system, unless the sender receives an automated non-delivery or bounce-back response.
Before pursuing any legal rights (other than urgent interlocutory relief), the aggrieved party must give written notice of the dispute to the CEO or Managing Director (or equivalent) of the other party, and the parties must use all reasonable endeavours to resolve it within 30 days of that notice. If unresolved, the aggrieved party may pursue its legal rights.
The Agreement is governed by and must be construed in accordance with the laws of the State of New South Wales, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts hearing appeals from them.
