MASTER SERVICES AGREEMENT
Last updated: 20th May 2023
Between PSYONYX PTY LIMITED (“PSYONYX”) ACN: 639 170 899 of 2 Ada Avenue, Brookvale, NSW 2100
AND the party which has agreed to purchase the Product and/or Consulting Services subject to this Agreement ("Client").
INTRODUCTION
A. The Client wishes to engage PSYONYX to provide the Services as on the terms and subject to the conditions set out in this Agreement.
B. PSYONYX agrees to provide the Services to the Client on the terms set out in this Agreement.
OPERATIVE PART
1. DEFINITIONS
Agreement means this agreement and all Associated Documents.
Associated Documents means all and any of the following: SOW, Proposal, Engagement Letter, Project Plan, Work Orders or any other document issued by PSYONYX and executed by both parties which describes the Services and/or the Deliverables to be delivered by PSYONYX, as may be varied under the change request process in clause 4.
Project Change Request Form means PSYONYX’s standard Project Change Request Form (PCR).
Charges means the fees and expenses payable by the Client to PSYONYX, as specified in the relevant Associated Document(s).
Commencement Date means the date set out in the relevant Associated Document.
Confidential Information means all information obtained by one party (“the Receiving Party”) from the other under this Agreement or in relation to the Services in any form, but does not include information that is:
a) Already in the Receiving Party’s possession without an obligation of confidentiality at the time of receipt of the information; or
b) Was independently developed by the Receiving Party; or
c) Is generally known or available to the public otherwise than through disclosure by the Receiving Party; or
d) Was disclosed to the Receiving Party by a third party who had the right to make such disclosure without an obligation of confidentiality; or
e) Is required to be disclosed by law.
Change Request has the meaning given in clause 4 b).
Contact Person means a person nominated by each party to be the other party’s point of contact for any matter that arises in relation to the Services.
Defect has the meaning given to that term in clause 7 b).
Deliverable means all or any Services and any other items described as “deliverables” in the relevant Associated Document (and excludes third party software, which is supplied subject to the applicable software licence agreement and also includes network components, which are not supplied under this Agreement).
Detailed Impact Report means a report (by whatever name called) on the impact of a Change Request that is prepared following a detailed scope assessment, provided by PSYONYX to the Client under clause 4b).
Dispute means a dispute arising out of or in connection with this Agreement including a dispute as to breach or termination of this Agreement or as to any claim in tort, in equity or pursuant to any statute.
Engagement Letter means an engagement letter issued by PSYONYX to the Client, which is countersigned by the Client.
Equipment and Resources means the equipment and resources to be provided by the Client as set out in the relevant Associated Document(s).
Force Majeure means an act, event or cause (other than lack of funds) which is beyond the reasonable control of the concerned party, including acts of God, war, sabotage, riot, national emergency, fire, lightening, flood, cyclone, earthquake, landslide, storm, explosion, power shortage, strike or other labour difficulty (whether or not involving the employees of the party concerned).
GST means Australian Goods and Services Tax, payable in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Impact Report means a report (by whatever name called) on the impact of a Change Request, provided by PSYONYX to the Client under clause 4b).
Intellectual Property means, whether or not registered and in any jurisdiction, copyright, trademarks, all rights in relation to inventions (including patents), circuit layouts, designs, business, product and domain names, knowledge, ideas, concepts, know-how, Confidential Information and trade secrets, and all other rights anywhere in the world resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Project Plan means a document entitled “Project Plan” executed by the parties.
Related Body Corporate has the meaning in section 50 of the Corporations Act 2001 (Cth)).
Requirements in relation to any Deliverable means the Client’s business, functional, non-functional, operational, performance and other requirements for that Deliverable as expressly specified in the relevant Associated Document, or the document that includes the relevant requirements will be referenced in the relevant Associated Document as the document that specifies the Client’s requirements for the purposes of that Associated Document;
Services means the services to be provided to the Client by PSYONYX under each Associated Document and includes services requested by way of PSYONYX help desk or directly to PSYONYX consultants under clause 4(c).
SOW or Statement of Work means a document entitled “SOW” or “Statement of Work” executed by the parties.
Warranty Period has the meaning given to that term in clause 7 c).
Work Order means a document entitled “Work Order” executed by the parties.
2. TERM
This Agreement will commence when executed by both parties and will remain in effect until terminated in accordance with the terms of this Agreement.
3. NATURE OF AGREEMENT
a) Contract for Services
The parties acknowledge and agree that this Agreement is a contract for services and that nothing in this Agreement is to be construed as establishing a contract of employment between the parties or creating a partnership, joint venture or other relationship between the parties. Neither party has the right, power or authority to bind the other in any manner.
b) Non-exclusivity
This Agreement is not an exclusive arrangement between PSYONYX and the Client. PSYONYX may provide services the same as or similar to the Services to any other person or entity during the term of this Agreement.
c) Co-Operation
The Client may, from time to time, require other suppliers to provide it products and/or services in relation to this Agreement. Without limiting clause 3d), PSYONYX is not responsible for the performance of other suppliers engaged by the Client.
Where the Client engages external consultants to undertake activities or obligations of the Client (such as but not limited to project management, data conversion, testing and end user training) in relation to the provision of Services by PSYONYX, PSYONYX may charge for all additional time spent in dealing with such consultants, provided that any such costs are agreed by the Client in writing prior to being incurred
d) Where, under an Associated Document, PSYONYX is engaged to provide a solution to the Client and:
a. the Associated Document specifies third party products and/or services that are required as part of that solution; and
b. the Associated Document specifies (or the relevant third party supplier requires) that the Client is required to enter into an agreement directly with the third party supplier for supply of those products and services required for that solution,
PSYONYX remains responsible for provision of the solution in accordance with the requirements of the relevant Associated Document provided that nothing in this clause 3d) operates to make PSYONYX responsible for performance of the third party products or services in accordance with the specifications, warranties or other performance standards included in the third party’s agreement with the Client or published or otherwise represented by the third party supplier. Any warranty claim or other remedy for the Client in respect of any defect in or failure of third party products and services, or breach or misrepresentation by the third party supplier, is pursuant to the Client’s agreement with the relevant third party supplier.
4. THE SERVICES
a) Provision of Services
PSYONYX will provide the Deliverables to the Client as specified in the Associated Documents, subject to the Client meeting all applicable Client obligations in accordance with the required timeframes.
b) Variations Requested by the Client
If the Client wishes to vary any of the Deliverables specified in the Associated Documents, it will submit a written request on a Project Change Request Form to PSYONYX (“the Change Request”). PSYONYX will assess the Change Request and provide an ‘Impact Report’ to the Client within 7 days after receiving the Change Request which contains the following information:
i. the Change Request (or a reference to the Change Request);
ii. whether PSYONYX agrees in principle to the Change Request; and
iii. the estimated price (subject to iv. below) to implement the Change Request (and the changes (if any) to the existing Charges) and timing for supply of the relevant Deliverables and any other required changes to this Agreement; and
iv. whether the Change Request requires a detailed scope assessment before a price estimate, revised pricing and other relevant details can be provided to the Client.
All work undertaken by PSYONYX in assessing a Change Request and preparing an Impact Report will be charged to the Client at the relevant rate specified in the applicable Associated Document or if the Associated Document does not specify an applicable rate, will be charged at PSYONYX’s standard rate.
Where a detailed scope assessment is required under clause 4b)iv above, and the Client wishes to proceed with that assessment, a Work Order will be prepared and signed by both parties before the assessment commences. The outcome of any detailed scope assessment will be a ‘Detailed Impact Report’ which contains the same details as required for an Impact Report.
When an Impact Report (or where applicable a Detailed Impact Report) is issued to the Client, the relevant Associated Document will be varied:
i. if both parties agree and sign the Impact Report or Detailed Impact Report (as applicable); or
ii. if the Client confirms to PSYONYX in writing (including by email) that it wishes PSYONYX to proceed in accordance with the Impact Report or Detailed Impact Report (as applicable).
iii. if the Client gives verbal confirmation to PSYONYX that it wishes PSYONYX to proceed in accordance with the Impact Report or Detailed Impact Report (as applicable) and PSYONYX records that confirmation given by the Client back to the Client in writing (including by email).
Except where the nature of a Change Request means that provision of all or any of the Services needs to be suspended pending agreement on any Change Request, PSYONYX will continue to provide the agreed Services unless and until varied in accordance with this clause 4b) unless agreed otherwise in writing between the parties.
c) Services Requested through Helpdesk or directly from consultant
If PSYONYX carries out Services (whether set out in the Associated Documents or otherwise) as a result of a request made by the Client calling a help desk operated by PSYONYX or by contacting a PSYONYX consultant directly with the request:
i. PSYONYX will make a record of the requested Services in its help desk system or in the case of a direct request made to a consultant, the request will be confirmed by email to the Client representative that made the request;
ii. PSYONYX will carry out those services as specified in the help desk system record or email confirmation;
iii. PSYONYX may issue an invoice to the Client for the requested Services under this clause 4(c) and such invoice will form part of the Charges.
Where a request made under this clause will or is likely to require three hours work or more, PSYONYX may issue a Work Order in respect of the work. Where PSYONYX issues a Work Order, PSYONYX will require the Client’s confirmation to proceed with the Work Order prior to proceeding, which can be given by the Client signing and returning the Work Order, providing written conformation to proceed to PSYONYX (including by email) or by verbal confirmation (in which case PSYONYX will confirm by email). By not issuing a Work Order on commencing work on a request under this clause, PSYONYX does not in any way represent that the request can be met with less than three hours work and PSYONYX may, at any time during the course of undertaking work on the request, issue a Work Order for the work required including work to date on meeting that request.
5. CLIENT’S OBLIGATIONS
a) The Client will:
i. in all matters in relation to this Agreement act reasonably and make reasonable decisions bearing in mind the time constraints imposed on PSYONYX in each Associated Document;
ii. perform its obligations as specified in each Associated Document and otherwise specified in this Agreement and make all decisions required of the Client, provide all sign-offs required of the Client, and run acceptance testing (where applicable) in accordance with the specified timing;
iii. make available to PSYONYX in a timely manner (and in accordance with any timeframes which the Client has agreed to) all assistance, including personnel, information, facilities, services and equipment reasonably required by PSYONYX;
iv. where the Client is required to provide data to PSYONYX, provide the data in a data format suitable for import and otherwise as reasonably requested by PSYONYX;
v. undertake frequent and adequate backups of the application data. The Client should ensure that backups are always completed, as well as ensuring the backups are secure and checking that they can be successfully restored; and
vi. provide PSYONYX with such access to its systems as reasonably required by PSYONYX.
6. DELAY, CHANGE AND COST IMPACTS
a) Unless expressly agreed otherwise in writing, timing for completion of work under an Associated Document is extended by delays by the Client in meeting its obligations under clause 5, in respect of which the extension period matches the duration of the delay by the Client.
b) Where clause 6a) applies (“Delay Event”) and the Delay Event results in additional costs to PSYONYX in performing PSYONYX’s obligations under this Agreement, PSYONYX may notify the Client and the parties will then discuss and agree an amendment to the charges payable by the Client to reflect the actual, additional costs incurred by PSYONYX as a result of the Delay Event.
7. DELIVERABLES WARRANTY
a) PSYONYX provides a limited warranty to Clients on the terms set out in this clause 7. The warranty is given in respect of the Deliverables that result from supply of certain limited Services, being only software development and configuration services (Warranted Deliverables). The warranty in this clause 7 does not apply to any other Services or other Deliverables provided by PSYONYX.
b) What PSYONYX warrants: PSYONYX warrants that, subject to the operation of the balance of this clause 7 and clause 8, the Warranted Deliverables will meet the Requirements for that Deliverable and be free of ‘Defects’ (see definition below) for the Warranty Period (see definition in c) below). Note that ‘Deliverables’ does not include any third party software or network components whether supplied by PSYONYX or not.
For the purposes of this clause 7, a ‘Defect’ is an error or fault in a Deliverable that causes it to produce an incorrect result or to behave in unintended ways.
c) Warranty Period: The ‘Warranty Period’ is thirty (30) days commencing on:
i. the date specified in the relevant Associated Document as the commencing date of the Warranty Period; or
ii. where no such date is specified, the date of the first deployment of the Deliverable to the Production environment
d) Condition to making a valid warranty claim: Without limiting any other provision of this clause 7, in order to make a valid warranty claim, the Client must:
iii. have performed acceptance testing on the relevant Deliverable under clause 10 based on an agreed set of test cases; and
iv. prior to making a warranty claim provide to PSYONYX evidence of a scoped and agreed requirement (and that requirement must be part of the defined ‘Requirements’) and a successful test case being executed,
v. Provide evidence confirming acceptance of the testing outcomes of the relevant scenario by both the Client and PSYONYX.
Without limiting this clause 7d), the warranty under this clause 7 does not apply to performance issues or Defects that either:
vi. should have been identified by the Client (and would have been identified by a prudent and experienced tester) during the Client’s acceptance testing, but that were missed or overlooked; or
vii. would have been identified during acceptance testing if the Client had undertaken the expected acceptance testing,
viii. Defects that were present and accepted during the Client’s acceptance testing
(‘Non-Warranty Items’). Non-Warranty Items will be addressed by PSYONYX on a time and materials basis and at the Client’s cost.
A failure to perform the acceptance testing as required in this clause 7d) will void the warranty given under this clause 7 in respect of the relevant Deliverables.
e) Making a warranty claim: The Client must notify PSYONYX in writing of the warranty claim, giving complete details of the Defects and the relevant Deliverable, within the Warranty Period.
f) Remedy for breach of warranty (what PSYONYX will do): On receipt of a valid warranty claim, PSYONYX will repair or replace the relevant Deliverable, determined by PSYONYX in its discretion, at no charge to the Client. Without limiting the condition in clause 7d) or any other part of this clause 7, nothing in this clause 7 requires PSYONYX to undertake any work under the warranty in this clause 7 where the Deliverable meets the Requirements and does not contain Defects.
The Client’s remedy for breach of the warranty in this clause 7 is the Client’s sole and exclusive remedy for breach of the warranty under this Agreement.
Any Defects notified to PSYONYX after expiry of the Warranty Period, and any issues which do not constitute a breach of the warranty (including Non-Warranty Items and the exceptions detailed at clause 7g)), will be remedied by PSYONYX at the Client’s cost, on a time and materials basis.
g) Exceptions to the warranty applying: Without limiting any other part of this clause 7 or clause 8, the warranty in this clause 7 does not apply if the Client:
A. modifies the Deliverables without PSYONYX's written approval; or
B. uses the Deliverables with products that have not been approved by PSYONYX; or
D. to any Defects that arise or are occasioned from continued use of the Deliverables after a Defect was detected or ought to reasonably have been detected.
h) With the exception of the warranties given under clause 7 and 8, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
8. ADDITIONAL WARRANTIES
a) Each party represents and warrants to the other party that:
i. It has full legal capacity and power to enter into this Agreement;
ii. It has taken all corporate action necessary or desirable to authorise its entry into this Agreement and to carry out the transactions and grant the rights contemplated in this Agreement;
iii. Its entry into this Agreement does not breach any existing agreement or arrangement between it and any other person, or infringe the rights of a third party; and
iv. It will comply with all applicable laws, codes of conduct and industry standards when exercising its rights or complying with its obligations under this Agreement.
b) PSYONYX represents and warrants to the Client that:
i. It has and will provide all personnel, equipment and resources necessary for it to perform its obligation under this Agreement except to the extent that the Client is to provide Equipment and Resources under this Agreement;
ii. the Deliverables conform to Australian industry best practice for such Deliverables, provided that the warranties in this clause 8b)ii do not apply if the Client:
A. modifies the Deliverables without PSYONYX's written approval; or
B. uses the Deliverables with products that have not been approved by PSYONYX
c) Diligence Skill and Care
PSYONYX warrants that it will provide the Services and the Deliverables:
i. Within the timeframes set out in the Associated Documents, and where no timeframes have been agreed, in a timely manner, having regard to permitted delays;
ii. With professional standards of diligence, care and attention using personnel with suitable skills, education and experience; and
iii. In accordance with applicable industry standards.
9. CLIENT RESPONSIBILITIES
The Client will:
a) Provide PSYONYX with all of the access, facilities, information, cooperation and assistance that PSYONYX may reasonably require in order for it to properly perform its obligations under this Agreement.
b) Ensure that it maintains a Contact Person with an understanding of the Client’s Service requirements to contact and assist PSYONYX.
c) Comply with all PSYONYX’s reasonable directions and restrictions regarding Deliverables.
d) Ensure that all information provided to PSYONYX in connection with the Deliverables is true and correct, to the best of the Client’s knowledge.
e) Immediately notify PSYONYX of any circumstances which may suggest a breach of this Agreement.
10. ACCEPTANCE
a) This clause 10 only applies where an Associated Document specifies that acceptance testing is to be undertaken in respect of Deliverables to be provided under that Associated Document. Where acceptance testing applies, the acceptance testing process (including details of acceptance criteria, acceptance test period and acceptance test plan) will be included or referenced in the relevant Associated Document or the process for agreeing those details will be included in the relevant Associated Document. If an Associated Document references an acceptance testing process but details of the acceptance criteria are not subsequently agreed in writing as anticipated, the warranty condition in clause 7d) cannot be met and so the warranty in clause 7b) does not apply. The purpose of the acceptance testing will be to determine whether the Deliverable meets the relevant Requirements for that Deliverable (relevant Requirements are as described or referenced in the relevant Associated Document).
b) PSYONYX will notify the Client when the relevant Deliverables are ready for acceptance testing by the Client. On receipt of notice under this clause 10b), the Client will undertake acceptance testing in accordance with the agreed acceptance test plan.
c) Subject to clause 10d) and unless agreed otherwise in an Associated Document, the Client will, within the agreed acceptance testing period (or if no period has been agreed, within ten days of PSYONYX’s notification under clause 10b):
i. confirm in writing to PSYONYX that the Deliverable(s) meet the Requirements; or
ii. notify PSYONYX in writing if the Deliverable(s) do not meet the Requirements in which case the Client’s notice must identify the defect by reference to the specific part of the Requirements that is not met. PSYONYX will then consult with the Client to agree a process and time frame for gaining acceptance for the Deliverables.
d) Unless agreed otherwise in an Associated Document, the Deliverables will be deemed accepted if:
i. the Client fails to commence acceptance testing within the agreed acceptance test period (or if no period is agreed, within seven days of notification from PSYONYX that the Deliverable is ready for acceptance testing); or
ii. notice is not received in accordance with clause 10c); or
iii. if the Client makes any use of the relevant Deliverable(s) for productive and/or commercial purposes (except for testing purposes); or
iv. the Client or any third party makes any modifications to the Deliverables without PSYONYX’s agreement in writing.
11. FEES
a) Payment of Charges
The Client shall pay PSYONYX the Charges specified in the Associated Documents without set off or deduction.
b) Invoicing and Payment
Unless otherwise specified in the Associated Documents PSYONYX shall send the Client a valid tax invoice specifying the Charges payable by the Client and the method of payment required.
All invoices are payable 30 days from the date of the invoice issued, with the exception of discounted pre-paid engagements, which are payable on receipt.
Invoices are payable without withholding, deduction or setoff of any kind except in the case of a genuinely disputed invoice, in which case the Client may withhold the amount disputed provided it gives notice to PSYONYX that the invoice is disputed within 14 days of receipt of that invoice. Any dispute arising as to the payment of the Charges must be dealt with in accordance with clause 17 of this Agreement. Once the disputed payment is resolved the Client shall pay all outstanding amounts to PSYONYX within 14 days of resolution.
c) Disbursements and travel time
Disbursements and expenses will be charged to the Client as follows:
i. accommodation, travel and other expenses incurred in performing the Services and supplying the Deliverables, provided that such expenses are identified and agreed in the relevant Associated Document or the Client’s pre-approval of the expense has otherwise been obtained (not to be unreasonably withheld).
ii. all costs incurred in travelling to and from Client’s premises or travel otherwise required in the performance of the Services (including for example travel to and from third party’s premises), including:
a. Mileage, at the current recommended rate, will be charged for the return trip from the PSYONYX office (the PSYONYX office that is nearest to the destination) to the destination;
b. Travel time at 50% of standard rates for work performed over 25kms from nearest PSYONYX office to the Client’s site.
Disbursements and expenses will be invoiced on a monthly basis for payment by the Client by the 30th of the month following the date of the invoice:
d) Late Payment
If the Client does not pay the fees and expenses on the due date (other than in the case of a genuinely disputed invoice as provide for in clause 11(b) above) it must pay on demand from PSYONYX interest for late payment at the lesser of the maximum amount permitted by law or 2% above the overdraft interest rate charged by PSYONYX’s primary bank in Australia on the first business day of the month during which the payment falls due, from the due date for payment until payment has been made.
e) PSYONYX may Suspend Services
Unless an invoice is disputed in accordance with clause 11(b) above PSYONYX reserves the right to suspend work on the Services until all invoices are paid in full.
f) Material Breach
Unless an invoice is validly disputed in accordance with clause 11(b) above non-payment of an invoice validly issued by PSYONYX will constitute a material breach for the purposes of clause 14(a)(i).
g) Taxes
All amounts set out in this Agreement are exclusive of GST (if any), unless otherwise expressly stated. PSYONYX may invoice the Client for applicable GST amounts and such invoices must be paid in accordance with clause 11(b). Amounts payable are inclusive of all other government taxes, value added taxes, withholding taxes, duties, imposts and levies of a similar nature however designated, assessed or levied on PSYONYX in relation to this Agreement.
12. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
a) Right to provide Intellectual Property
PSYONYX represents and warrants that use of the Deliverables by the Client in accordance with this Agreement will not infringe the rights (including Intellectual Property rights) of any third party.
b) Right to use Intellectual Property in Client Materials
The Client warrants that use by PSYONYX of the Client Materials in the provision by PSYONYX of the Services and/or Deliverables will not infringe the rights (including intellectual property rights) of any third party. In this clause 12b), ‘Client Materials’ means any software code, documentation, information and other things owned by the Client or owned or licensed to the Client by the Client's suppliers and provided to PSYONYX by the Client.
c) Ownership of Intellectual Property
PSYONYX and/or its third party licensors (as the case may be) own and shall retain all Intellectual Property in the Deliverables and anything else supplied or made available by PSYONYX under this Agreement (“PSYONYX Intellectual Property”).
d) Enhancements
Except to the extent that the SOW provides otherwise (and subject to clause 12(a)) exclusive ownership of, and title to, any Intellectual Property:
i. developed by PSYONYX under or in connection to this Agreement; and
ii. in any other changes, additions or improvements to PSYONYX Intellectual Property (“the Enhancements”) will immediately and directly vest in PSYONYX upon their creation. The Client retains no rights, title or interest in or to the PSYONYX Intellectual Property or the Enhancements and will not dispute PSYONYX’s ownership of the same. The Client shall do all acts and things necessary to give effect to this clause 12.
a) Confidentiality Obligations
The party receiving Confidential Information (Receiving Party) of the other party (Owner) will:
i. Not (except with the Owner’s prior written approval) disclose the Confidential Information to anyone other than its:
a. Personnel or affiliates who have a need-to-know for the purposes of fulfilling the Receiving Party’s obligations under this Agreement or, in the case of the Client, to obtain the full intended benefit of this Agreement;
b. Professional advisors, upon obtaining a similar undertaking of confidentiality from such advisors.
ii. Ensure that its relevant personnel and subcontractors are made aware and owe to the Receiving Party, (by written agreement with the Receiving Party), a corresponding duty of confidence to that owed by the Receiving Party to the Owner;
iii. On discovery of any beach of this clause by the Receiving Party or any person in possession of Confidential Information through the Receiving Party, immediately notify the Owner of such breach and co-operate with the Owner in every reasonable way to help the Owner regain possession of the confidential information and prevent its further unauthorised use or disclosure.
b) Return
Each party will on termination of this Agreement, on demand, deliver to the other party all Confidential Information and any other documents or information supplied by or obtained from the other party.
14. TERMINATION
a) Termination for Default
Either party may on written notice to the other party terminate this Agreement immediately if the other party:
i) Has materially breached any of its obligations under this Agreement and the breach:
a. If capable of being remedied, is not remedied within fifteen (15) working days of receiving written notice specifying the breach and that the notifying party has the right to terminate under this clause if the breach is not remedied; or
b. Is not capable of being remedied;
ii) Commits four or more of the same or similar non-material breaches of this Agreement in any three month period (with written notice of the breach having been given in each case, and the written notice specifying that it is a ‘non-material breach’ for the purposes of this clause);
iii) Ceases to carry on its business or threatens to cease trading in a normal manner;
iv) Is subject to anything analogous or having substantially similar effect to any of the events specified above under the law of any applicable jurisdiction; or
v) Is bankrupt, placed in receivership, voluntary administration or liquidation (other than for the purposes of solvent reorganisation) or is unable or unwilling to pay its debts as they fall due.
b) Termination Without Cause
Either party may on 30 days’ written notice to the other party terminate this Agreement without cause provided that the Client may terminate the Agreement or an Associated Document with less than 30 days written notice if the Client pays to PSYONYX an amount equal to the charges that PSYONYX would have been paid if the Client had given 30 days’ written notice, such amount to be calculated by reference to the relevant Project Plan or Associated Document(s). Any termination of this Agreement by the Client under this clause 14b) does not relieve the Client from the obligation to pay for any software or other products ordered by PSYONYX for the Client (including software or other products ordered separately to this Agreement) except where the Client notifies PSYONYX that it no longer requires that software or other products and PSYONYX is able to cancel the order without charge.
c) Effect of Termination
Termination or cancellation of this Agreement shall not:
i) Relieve either party from any right, liability or claim that has accrued before the date of termination or cancellation; or
ii) Affect the provisions of this Agreement which expressly, or by their nature, survive termination or cancellation. Clauses 12, 14, 16 and 17 shall survive the termination or cancellation of this Agreement.
d) Consequences of Termination
Following termination of all or any part of this Agreement:
i) All charges, monies retained and payable to PSYONYX, and other payments outstanding or incurred prior to the date of expiry or termination under the expired or terminated part of the Agreement will become immediately due and payable; and
ii) Each party will either promptly deliver to the other or, at the other party’s option, destroy and certify the destruction of all of the other party’s property and Confidential Information (in any reasonable format requested by the other party) under the expired or terminated part of this Agreement, as and when reasonably requested in writing by the other party.
e) General Consequences
On termination or expiry of this Agreement, all rights and obligations under this Agreement cease, other than those accrued up to and including the date of termination or expiry.
a) Exclusion
Neither party will be liable to the other party for any:
i) Loss or damage to any information or data from any cause; or
ii) Loss of business, profit, revenue, goodwill, opportunity or anticipated saving; or
iii) Incidental, indirect, special or consequential loss or damage.
b) Limitation
The total aggregate liability of a party arising under, out of, or in connection with this Agreement (including in connection with the Deliverables) will not exceed the amount paid under the Associated Document in respect of which the claim arose.
c) Application of Limitation and Exclusions
The total aggregate liability under clause 15 and any other limitations and exclusions of liability in this Agreement shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty, via an indemnity or otherwise.
d) Force Majeure
Neither party will be liable to the other for any failure or delay to perform its obligations by reason of Force Majeure. In the event that a party cannot perform its obligations under this Agreement as a result of Force Majeure, that party shall:
i) Notify the other party as soon as reasonably practicable of full particulars of the Force Majeure; and
ii) Use all reasonable endeavours to overcome, avoid and mitigate the Force Majeure; and
iii) Use all reasonable endeavours to mitigate the effects or consequences of the Force Majeure.
If the party cannot perform its obligations due to Force Majeure for more than 90 days then the other party may terminate this Agreement on one week’s written notice.
16. NON-SOLICITATION
a) The Client agrees that during the period for which PSYONYX is providing Services under an Associated Document or series of related Associated Documents and for a period of six (6) months following completion of the relevant Services, it shall not solicit or engage or employ any staff member or contractor of PSYONYX engaged to perform those Services, and will use its best endeavours to ensure that no ‘Restricted Person’ does so either. For the purposes of this clause 16, a ‘Restricted Person’ is a) is one or more shareholders of the Client
b) one or more directors of the Client; or c) a Related Body Corporate of the Client (‘Related Body Corporate’ having the meaning in section 50 of the Corporations Act 2001 (Cth)).
c) The parties agree that a breach of this clause 16 constitutes a material breach for the purposes of clause 14(a)(i).
17. DISPUTE RESOLUTION
a) No Court Proceedings
Except in the case of urgent interlocutory relief, unless a party has first complied with this clause 17 it may not commence legal proceedings.
b) Notice of Dispute
If a Dispute arises between the parties in relation to this Agreement either party may give written notice to the other party’s Contact Person requiring the dispute to be determined in accordance with this clause 17 (“Dispute Notice”). The Dispute Notice must specify:
i) The nature of the Dispute; and
ii) How that party suggests the Dispute should be settled.
c) Response to Dispute Notice
The party receiving the Dispute Notice must reply to the other party within fourteen (14) days by notice in writing (“Dispute Notice Response”) specifying:
i) Whether it agrees with the other party’s suggestions for settling the dispute as contained in the Dispute Notice; and
ii) If it does not agree with the suggestions contained in the Dispute Notice, its own suggestions for settling the dispute.
d) Negotiations
The parties will enter into negotiations to resolve the Dispute within fourteen (14) days of the date of the giving of the Dispute Notice.
e) Mediation
If the Dispute is not resolved within one (1) month of the giving of the Dispute Notice either party may refer the Dispute to mediation by written notice to the other party (“Mediation Notice”). The Mediation will be conducted as soon as reasonably possible within Australia. If the parties cannot agree on a mediator within seven (7) days of the giving of the Mediation Notice [the mediator will be selected at the request of either party by the president for the time being of the Law Society of Queensland or selected by the Australian Commercial Disputes Centre Limited or their successors. The terms of reference for the Mediation if not agreed between the parties within seven (7) days of the giving of the Mediation Notice will be the model mediation terms suggested by the Law Society of Queensland or selected by the Australian Commercial Disputes Centre Limited. Each party must pay their own costs in connection with the dispute resolution procedure].
f) Good Faith and Continuity
Pending resolution of any dispute, each party will:
i) Make all reasonable efforts in good faith to resolve the Dispute promptly and in a manner which minimises the impact on the Services and each party’s business.
ii) Continue to perform its obligations under this Agreement, provided that the other party is complying with this clause 17 in all material respects.
a) Use of Sub-contractors
PSYONYX may contract with third parties for the performance of its obligations under this Agreement provided that it remains liable for the performance of its obligations under this Agreement and shall take all reasonable care in the contracting of appropriately skilled and qualified contractors, with the prior written consent of the Client .
b) Variations to the Agreement
Except as expressly permitted by this Agreement, any variation to this Agreement will be effective only if it is agreed in writing and signed by authorised representatives of both parties.
c) Entire Agreement
This Agreement contains the entire understanding between the Client and PSYONYX and supersedes all previous Agreements between the Client and PSYONYX on its subject matter.
d) Waiver
A failure or delay by either the Client or PSYONYX to enforce this Agreement will not be taken as a waiver of any rights under this Agreement.
e) Assignment
Neither party may assign any or all of its rights and/or obligations under this Agreement without the other party’s prior written consent which shall not be unreasonably withheld or delayed.
f) Severability
If at any time any provision of this Agreement is or becomes illegal or unenforceable it shall be deemed to be amended so that it accomplishes the original purpose of that provision as far as possible. The legality, validity or unenforceability of the remaining clauses shall not in any way be affected or impaired.
g) Interpretation
In this Agreement:
i) Where the context permits, the singular includes the plural and vice versa.
ii) References to any "party", means a party to this Agreement and includes that party’s respective successors and permitted assignees (as the case may be).
iii) Reference to clauses and schedules are to the clauses in, and attachments to, this Agreement, unless stated otherwise. Each such schedule forms part of this Agreement.
iv) References to "months" are to calendar months, unless stated otherwise.
v) References to individuals include companies and other corporations and vice versa.
vi) “includes” means includes without limitation;
vii) No rule of construction will apply to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.
viii) All references to dollars or $ are references to Australian Dollars unless otherwise stated;
ix) A party’s obligation not to do something is also an obligation not to cause or permit that thing to be done; and
x) Reference to a statute includes all regulations and amendments to that statute or incorporating any of its provisions to the extent that they are incorporated.
h) Counterparts
This Agreement may be signed in any number of counterparts (including facsimile and email counterparts) all of which, when taken together shall constitute one and the same instrument.
i) Law
This Agreement is governed by the Laws of Australia and the parties submit to the non-exclusive jurisdiction of the Australia courts. The jurisdiction will New South Wales, Australia.
j) Further Assurances
Each party will, at its own expense and when requested by the other party, promptly do, sign and deliver everything reasonably required for the purposes of and to give full effect to this Agreement, its provisions and any transactions contemplated by it.