DEFINITIONS & INTERPRETATION

1. Definitions

In this Agreement, unless the contrary intention applies:

Affiliate in the case of Koda means any entity that, from time to time, is directly or indirectly controlling, controlled by or under common control of Koda. “Control” means the power to direct or cause the direction of the management or policies of such an entity, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” shall be construed accordingly. An Affiliate includes a Related Body Corporate.

Agreement means this Master Services Agreement and includes the Service Schedule.

Authorisation means:

1. an authorisation, consent, declaration, exemption, notarisation or waiver, however it is described; and

2. in relation to anything that could be prohibited or restricted by law if a government agency acts in any way within a specified period, the expiry of that period without that action being taken,

including any renewal or amendment;

Authorised Representative means a person appointed as a representative of the Client in accordance with section 916A and 916B of the Corporations Act;

Authorised User means the persons nominated by the Client to access and use the Services as set out in the Schedule (as applicable) and as varied in accordance with the Special Condition.

Business Day means a day other than a Saturday, Sunday or public holiday in the capital city of any open Australian State or Territory.

Client means the person or entity named in this Agreement and that enters a Service Schedule with the Service Provider.

Confidential Information means the terms of this Agreement and any information in any form, whether oral, written or otherwise including without limitation, information relating to the business, clients, finances, strategy, methods, records, correspondence, reports, processes, data, Intellectual Property, products, services or other affairs of the Disclosing Party, which by its nature, the Receiving Party reasonably should know is confidential whether disclosed before or after the Start Date, but excludes information which:

1. is or becomes public knowledge other than by breach of this Agreement or any other confidentiality obligation;

2. the Receiving Party obtains from a source other than the Disclosing Party which source is entitled to disclose it; or

3. the Receiving Party developed or acquired    independently before the Start Date.

Consumer Price Index or CPI will be determined based on the most recently published CPI for the Insurance and Financial Services group from the Australian Bureau of Statistics, based on the weighted average of eight capital cities, utilizing the percentage for annual quarter on quarter change.

Corporations Act means the Corporations Act 2001 (Cth).

Dispute Notice means a notice of dispute under clause 18 of this Agreement.

Effective Date means the date of these Master Terms.

Fees mean the fees and charges for the Services as set out in Item 6 of each Service Schedule.

Fee Review means the terms for review of the Fees for the Services as set out in Item 7 of the Service Schedule.

GST means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth.

GST Act means the A New Tax System (Services and Services Tax) Act 1999 (Cth), as amended from time to time.

Initial Term in relation to each Service Schedule means the period commencing from the Start Date and continuing for the term as set out in Item 4 of the relevant Service Schedule. 

Disclosing Party means the Party disclosing the Confidential Information.

Insolvency Event means, where a Party:

1. is unable to pay its debts as they fall due, makes or commences negotiations with a view to making a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors;

1. takes any corporate action, or any steps are taken, or legal proceedings are started for:

   1. is winding up, in dissolution, liquidation, or re-organisation, other than to reconstruct, merge or amalgamate while solvent; or

   2. appoints a controller, receiver, administrator, official manager, trustee, or other similar officer, of it or of any of its revenues or assets; or

   3. seeks or is granted protection from its creditors under any applicable legislation; or

2. shall have a petition in bankruptcy filed for or against it.

Intellectual Property Rights means copyright and neighbouring rights (including moral rights), all rights in relation to inventions (including patents), registered and unregistered trade-marks, business names, domain names, registered and unregistered designs, circuit layouts, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Koda  means Lauren A Summerfield and Ricardo Vega and Annabelle Thomas, both jointly and severally.

Master Terms means the terms of this Master Services Agreement  as amended from time to time.

Payment Terms means the terms for the payment of Fees as set out in Item 8 of the Service Schedule.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is received or disclosed by a Party from any source as a consequence of the performance of its rights and obligations under this Agreement.

Personnel means any person who is involved in providing the Services to the Client under this Agreement or any Service Schedule.

Pre-existing IP has the meaning given in clause 17.1 of this Agreement.

Privacy Law means the Privacy Act 1988 (Cth) and any legislation (to the extent that such legislation applies to the Client or Koda or any other recipient of Personal Information) from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of personal data.

Receiving Party means the Party receiving the Confidential Information.

Related Body Corporate has the meaning it has in the Corporations Act.

Renewed Term in relation to a Service Schedule, means the renewal term as set out in Item 5 of the Service Schedule.

Representative of a Party means an employee, officer, director, auditor, advisor, or sub-contractor of that Party.

Services means the services the Service Provider agrees to supply to the Client and the Client agrees to accept from the Service Provider as specified in Item 2 of the Service Schedule, including any variations, modifications, updates, enhancements and new releases to the Services (as applicable).

Start Date means the date a Services commences as set out in Item 1 the Service Schedule.

Service Provider means Lauren A Summerfield and Ricardo Vega trading as Koda Support Solutions who are  providing the Services and who have entered  into the Service Schedule with the Client.

Service Schedule means a separate and binding contract relating to the Services that is formed between the Service Provider and the Client in accordance with clauses 4 and 5 of this Agreement including any Special Conditions and annexures to it.

Special Conditions mean the special terms and conditions specific to a particular Service as may be applicable and set out in Item 12 of the Service Schedule.

Tax Invoice has the meaning given in the GST Act.

Taxable Supplies has the meaning given in the GST Act.

Term means the Initial Term and any Renewed Term under a Service Schedule.

Third Party Provider means a third party (other than a Party and its Related Body Corporates) whose information, materials or services are included or used in a Service.

1. Interpretation

Unless otherwise stated:

1. headings are for convenience only and do not affect interpretation; 

2. words importing:

   1. the singular includes the plural and vice versa;

   2. any gender includes the other gender;

3. if a word is defined, cognate words have the corresponding meaning.

4. a reference to:

   1. this Agreement or any other document includes the Agreement or document as varied or replaced and notwithstanding any change in the identity of the parties;  

   2. a “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any government agency and any executor, administrator or successor in law of the person;

   3. a “Party” refers to a party to this Agreement 

   4. “person” or “party” includes a permitted substitute or a permitted assign of that Party; 

   5. a statute, ordinance, code, or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

   6. time is to local Sydney time;

   7. “$” or “dollars” is a reference to the lawful currency of Australia;

   8. anything (including without limitation any amount) is a reference to the whole and each part of it;

   9. writing includes any mode of representation in tangible and permanently visible form and includes electronic transmission.

5. where time is to be reckoned by reference to a day or event, that day or the day of the event is excluded.

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GENERAL

1. Agreement

1. The parties  may enter into one or more Service Schedules which will be governed by these Master Terms. 

2. All Service Schedules together with this Master Terms, collectively comprise a single Agreement between the parties. Accordingly, one or more Agreements may be created, each governed by the same Master Terms.

 

1. Inconsistency

Unless otherwise stated, if there is any inconsistency between the Master Terms and a Service Schedule or any attachment, the following shall prevail (in descending order): 

1. the Service Schedule and its Annexures (if any), 

2. the Master Terms, and

3. and any other attachment to this Agreement.

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TERM

1.  Agreement

The Master Terms commence on the Effective Date and remains in force unless terminated:

1. earlier by agreement between the Parties;

2. by either Party giving at least 14 days prior written notice to the other; or

3. in accordance with the terms of this Agreement.

 

3.2 Initial Term 

In relation to each Service Schedule, each Service will commence from the Start Date and will continue for the Initial Term unless terminated earlier by agreement or in accordance with the terms of this Agreement. 

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SERVICES

1. Details of Service Schedule

A Service Schedule must include all details required or contemplated by this Agreement together with any Special Conditions applicable to the Services to be provided by the Service Provider as set out in the Service Schedule.

1. Supply of Services

1. Koda will supply the Services to the Client after Koda accepts the Client’s request for the particular Services. 

2. All Services are supplied by Koda on the basis that the advice is provided to the Client and not to any other person. 

3. Unless otherwise agreed, Koda shall bear all ancillary costs associated with the provision of the Services.

4. The Services shall be performed at the Client’s premises, Koda’s premises, online, or at such other places as agreed by the parties.

5. Where Koda supplies the Services to the Client online:

   1. the Services are supplied over communication links and other networks and the availability of the Services rely on the availability of those links and networks. Koda will use reasonable endeavours to ensure the online information services are available. 

   2. Koda will not be responsible if the links or networks are unavailable at any time, and Koda does not guarantee or warrant that Services supplied online will be continuously available.

6.  The Client may require Koda to schedule and co-ordinate its performance of the Services with the work of others, including the Client’s employees and contractors. The Consultant shall use all reasonable efforts to comply with such scheduling. 

1. Supply to Other Client Related Bodies Corporate

1. The Client acknowledges and agrees that these Master Terms and any Service Schedule formed under this Agreement are particular to the Client.

2. The Client enters into these Master Terms and each Service Schedule on their own behalf and as agent for each one of their Related Body Corporates and Authorised Users. 

3. The Client will act in their own right and as the agent of each one of the Client’s Related Bodies Corporate and its Authorised Users with respect to the obligations of each Related Body Corporate under this Agreement.

4. If the Client acts as the agent of a Related Body Corporate or its Authorised Users, the Client:

   1. warrants that the Client has the authority to act as agent for that Related Body Corporate or its Authorised User;

   2. will continue to be liable under this Agreement for the obligations of that Related Body Corporate and its Authorised Users, despite the relationship of agency. 

1. Timing of Services

1. As Koda has given the Client a timetable or time estimate for providing the Services, Koda will use best endeavours to meet that timetable or time estimate.

2. Koda will notify the Client if Koda relies on the Client to do anything in order for Koda to meet the timetable or time estimate and the Client agrees to cooperate with Koda in this regard..

3. Subject to any extension of time agreed to in writing by the parties for the provision of the Services, in the event that Koda is unable to meet the timetable or time estimate for providing the Services, then the parties agree that Koda will not be entitled to the fee for the services, and any payment that has been made in respect to those Services shall be refunded by Koda to the Client.  

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NEW SERVICES

From time to time during the Term of this Agreement, the parties may enter into Service Schedules relating to new or additional Services which Koda agrees to supply to the Client and the Client agrees to accept from Koda based on these Master Terms and any Special Conditions. 

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KODA OBLIGATIONS AND WARRANTIES

1. Services and Warranties

Koda will provide the Services to the Client and warrants to the Client that it shall:

1. perform the Services in accordance with its obligations under this Agreement and in compliance with all relevant laws and standards

2. perform the Services with due care, competence and skill and by appropriately qualified and trained Personnel

3. act in good faith.

1. Personnel

Koda acknowledges that all Personnel are and will remain at all times principals, partners, employees or contractors of Koda and will not be or be deemed to be the Client’s employees or contractors.

1. Other Requirements

1. Koda must provide the Client with written reports in accordance with the requirements specified in any Service Schedule under this Agreement.

2. Koda must provide appropriate information to the Client to enable the Client to have access to the Services electronically, including any log-in or subscriber codes, or other information as is reasonably required.

1. Sub-Contracting

Koda may not sub-contract all or part of the Services unless otherwise approved by the Client and on terms consistent with all relevant terms of this Agreement or the applicable Service Schedule.

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CLIENT OBLIGATIONS

1. Access 

If access is required, the Client will provide Koda and the Personnel with such access to the Client’s premises and facilities as may be reasonably required to allow Koda to perform the Services in accordance with the terms of the applicable Service Schedule.

1. Provision of Information and Assistance

The Client will provide such information, assistance and decisions as may be reasonably required by Koda to assist Koda to provide the Services in accordance with the terms of the applicable Service Schedule and this Agreement.

1. Use of Services 

   1. The Client may provide the Services and information to its Related Bodies Corporate or Authorised Representatives. 

   2. If Koda delivers the Services electronically, the Client may save the content onto the Client’s system or print it for the Client’s file. 

   3. If the Client accesses the Services by direct link and Koda delivers information to the Client by a stream of data, the Client may copy the information onto the Client’s system and reprocess it. 

   4. The Client agrees to  follow any procedures and other reasonable instructions Koda provides when the Client uses the Services. 

   5. If Koda changes any of its procedures or instructions or introduces new ones and the Client  is of the view that those changes have affected or will affect the Client, Koda shall advise the Client of the changes in reasonable time, taking into account the nature of those changes.

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FEES 

1. Payment of Fees

The Client will pay Koda the Fees in accordance with the Payment Terms.

1. Invoicing

Koda will provide the Client with valid tax invoices for all Fees due and payable by the Client.

 

GST

1. Fees 

For customers billed out of Australia, all Fees payable under or in connection with this Agreement are not inclusive of GST, unless specified otherwise.

1. Costs and Expenses

Without limiting clause 9.1 of this Agreement, if either Party is entitled under the Master Terms or a Service Schedule to be reimbursed or indemnified by the other Party, the reimbursement or indemnity will be net of any input tax credits which may be claimed by the Party being reimbursed or indemnified.

1. Tax Invoice

The Party that makes the supply must provide to the recipient of that supply a valid Tax Invoice.

1. GST Rate Change

1. In relation to any consideration payable or to be provided under or in connection with this Agreement that is not inclusive of GST (existing GST inclusive consideration) in the event of an increase in the GST rate, the Party making the supply may, subject to issuing a Tax Invoice or Adjustment Note, as appropriate, recover from the Party receiving the supply an additional amount on account of the increase in the GST rate. 

 

TERMINATION

1. Termination by Client 

The Client may, at the Client’s option and by notice in writing to Koda, terminate with immediate effect the relevant Service Schedule/s and/or this Agreement in the event that the relevant milestone/s has not been reached within the time limited in the relevant Service Schedule/s. 

1. Termination by Koda 

1. Where Fees remain outstanding for a period of more than 45 days from the invoice, Koda may immediately terminate the affected Service(s) and where applicable the Agreement, by notifying the Client.

2. The Client acknowledges and agrees that Koda may, at Koda’s option and by notice in writing to the Client, suspend the provision of the Services, terminate the relevant Service Schedule or terminate this Agreement if:

1. the requirements of any law, render (or are likely to render) the provision of the Services contrary to that or any other law; 

2. any regulatory policy or published view of a regulator renders (or is likely to render) the provision of the Services contrary to the established regulatory position;

3. a Third-Party Provider ceases to supply the necessary component services or data for Koda to provide the Services; or

4. a Third-Party Provider makes changes to terms on which it supplies the necessary component services or data such that it is unreasonably onerous for Koda, to comply with those terms to provide the Services. 

1. Termination for Breach

Either Party may terminate this Agreement immediately upon notice, if the other Party materially breaches the Agreement and the breach: 

1. remains unremedied for 30 days after the date the breaching Party receives a notice from the other Party describing the breach and requiring it to be cured, or is incapable of being cured.

2. However, if the material breach relates solely to one or more of the Services (but not all the Services), the non-breaching Party only may terminate the relevant Service(s).

1. Termination for Insolvency Event 

Either Party may by notice in writing to the other Party, terminate the Agreement immediately in an Insolvency Event.

1. Suspension of Services

Where Koda determines, acting reasonably, that it cannot continue to provide one or more of the Services under this Agreement or under any Service Schedule, then Koda may suspend the provision of that Service, without any further obligation accruing to the Client under this Agreement.

1. Force Majeure

Neither party will  be responsible or liable to the other for any delays or interruptions in or any failures of its performance under this Agreement beyond its reasonable control, including but not limited to, acts of God, acts of governmental authority, fire, acts of war, terrorism, health epidemic and/or pandemic, flood, strikes, server to adverse weather conditions, power failures or communications line or network failures. If such circumstances cause material deficiencies in the provision of the Services, then either Party may terminate the relevant Service upon notice to the other Party.

1.  Consequences of Expiry or Termination 

   1. Upon expiry or termination of this Agreement:

1. each Party must continue to perform its obligations in relation to any outstanding Service Schedule which has not been terminated;

2. as soon as reasonably practicable, each Party must deliver to the other Party, or at the option of the other Party, destroy or delete all documents and materials containing the other Party’s Confidential Information which are in its possession, custody or control (which are not required to perform obligations in relation to any outstanding Service Schedule which has not been terminated); or

3. the Client must pay to Koda all amounts due and payable under the Agreement at the date of termination, save for any amounts otherwise due under a Service Schedule that has not been terminated and continue pursuant to  clause 10.7a)i of this Agreement.

1. On termination of any Service Schedule:

1. the parties must continue to perform their other obligations under the Agreement and any outstanding or any future Service Schedule, except to the extent that they have also been terminated; and

2. the Client must pay to Koda subject to any set off  or deduction of all undisputed amounts due and payable to Koda under the Service Schedule at the date of termination.

 

SURVIVAL

Clauses 7 (Client Obligations), , 8 (Fees), 12 (Representations and Warranties), 13 (Liability), 14 (Client Indemnity), 15 (Confidentiality), 16 (Privacy) and 17 (Intellectual Property Rights) survive any termination of this Agreement.

1. REPRESENTATIONS AND WARRANTIES

   1. Each Party represents and warrants to the other that:

      1. (Authorisations) it holds each Authorisation that is necessary or desirable to:

1. enable it to properly execute this Agreement and to carry out the transactions that this Agreement contemplates;

2. ensure that this Agreement is legal, valid, binding; or

3. enable it to properly carry on its business,

and it is complying with any conditions to which any of these Authorisations is subject.

1. (Agreement effective) this Agreement constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms;

2. (No contravention) neither its execution of this Agreement nor the carrying out by it of the transactions that this Agreement contemplates, does or will:

1. contravene any law or regulation;

2. contravene any Authorisation;

3. contravene any undertaking or instrument binding on it or any of its property; or

4. contravene its constitution.

1. it has full capacity and  power to execute, deliver and perform its obligations under the Master Terms and each Service Schedule; and

2. execution of this Agreement has been properly authorised.

1. Under the Competition and Consumer Act 2010 (Cth) otherwise known as “Australian Consumer Law” (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services. Nothing in this Agreement will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified.

2. Koda warrants to the Client that it shall:

   1. perform the Services in accordance with its obligations under this Agreement and in compliance with all relevant laws and standards

   2. perform the Services with due care, competence and skill and by appropriately qualified and trained Personnel

   3. act in good faith.

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LIABILITY

1. Liabilities Excluded by Service Provider

To the extent Service Provider is able to at law, Koda excludes all express or implied representations, conditions, warranties and terms relating to the Services or the Agreement except those set out in this Agreement.

1. Exclusions from Liability

1. Service Provider is not liable to the Client, to Authorised Users (as applicable) or to any third party (whether claiming through the Client or otherwise) for any loss or damage (including without limitation loss of profit, revenue or business, indirect, consequential, special or incidental loss or damage) however such loss, damage or liability arises or might arise if it were not for this clause. 

2. This exclusion applies even if those damages or losses may reasonably be supposed to have been in contemplation of both parties as a probable result of any breach at the time they entered into this Agreement. 

3. This exclusion does not apply to anything the law prohibits Service Provider excluding liability for.

1. Cap on Service Provider’s Liability

To the extent Service Provider is unable to exclude liability, Service Provider’s total liability for loss or damage the Client suffers or incurs is limited to Service Provider re-supplying the services to the Client, or Service Provider refunding the amount the Client has paid Service Provider for the Service to which the Client’s claim relates.

1. Client Risk & Liability

The Client assumes entire risk, sole responsibility and liability for the suitability and results obtained from the use of the Services and any decisions made or actions taken based on the information contained in or generated by the Services.

 

INDEMNITY

Koda indemnifies the Client  for any loss or damage the Client suffers or liability or expense the Client incurs as a result of any of the following:

1. a breach by Koda of this Agreement, including any failure to perform the Services or a delay in the performance of the Services;

2. any warranty given by Koda under this Agreement being incorrect or misleading in any way;

3. the provision of the Services or any activity directly or indirectly associated with the provision of the Services; or

4. any negligent act, error or omission on the part of Koda, its partners, principals, employees, subcontractors or agents in the provision of the Services under this Agreement.

 

CONFIDENTIALITY 

1. Use and disclosure of Confidential Information

Each Party must keep the other Party’s Confidential Information confidential and must not:

1. use or reproduce any of the other Party’s Confidential Information otherwise than in performing or giving effect to this Agreement or providing the Services; or

2. disclose any of the other Party’s Confidential Information to any person, except:

   1. with the prior written consent of the other Party (which consent must not be unreasonably withheld);

   2. to its Representatives (including Personnel) who need to know it for the purposes referred to in clause 15.1a) of this Agreement;

   3. to their Related Bodies Corporate;

   4. if required by law, regulation or by the listing rules of any stock exchange; 

   5. if required in connection with legal proceedings relating to this Agreement. 

1. Disclosure obligations

If a Party discloses any of the other Party’s Confidential Information, it must take reasonable steps to ensure that the recipient of the Confidential Information does not use, reproduce or disclose that information except to the extent permitted by clause 15.1 of this Agreement.

 

PRIVACY

1. Compliance with Privacy Law

The parties must:

1. comply with the Privacy Act 1988 (Cth) and any additional Privacy Law by which the parties are bound and Koda, where applicable, agrees to comply with the Client’s reasonable instructions to enable this to be achieved;

2. use the Personal Information only for the purposes of fulfilling its obligations under this Agreement;

3. restrict access to the Personal Information to employees who need to access the Personal Information to fulfil Koda’s obligations under this Agreement;

4. take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorised access, modification or disclosure, including where applicable:

5. monitoring staff and third-party use of the Personal Information;

6. not disclose any Personal Information to a third party unless the third party is the individual to whom the information relates; and

7. obtain a written agreement from any third party to whom the Personal Information is disclosed to comply with Privacy Laws and contractual provisions having the same effect as this clause 16 of this Agreement.

8. during and after the term of this Agreement, not do anything with the Personal Information that will cause either Party to breach any Privacy Law and co-operate with each other to resolve any complaint made under any Privacy Law.

 

INTELLECTUAL PROPERTY RIGHTS

1. Pre-existing IP

Each Party owns, and will continue to own, all Intellectual Property Rights subsisting in any material it provides or makes available to the other Party under or in connection with this Agreement or any Service Schedule (Pre-existing IP).

1. Koda’s Intellectual Property

The parties acknowledge and agree that:

1. Koda’s Intellectual Property Rights are not assigned, transferred or otherwise licensed to the Client by this Agreement other than as specifically noted in the relevant Service Schedule.

2. Koda has developed information technology, software and documentation that it may use to provide the Services to the Client, and Koda has copyright and other rights in those items. The Client agrees that the Client will not copy them, modify them, adapt them, reverse engineer them or infect them with viruses.

 

 

DISPUTE RESOLUTION

1. Dispute Notice

Any Party claiming that a dispute has arisen must give written notice (Dispute Notice) to the other Party setting out the nature of the dispute and all other information relevant to the dispute.

1. Escalation

Within 5 Business Days of receipt of a Dispute Notice, the parties must escalate the dispute to the Client and the Client’s Contact Persons as specified in item 10 of the Service Schedule. These Representatives must then promptly meet and undertake discussions with a view to resolving the dispute as soon as practicable.

1. Mediation

If the dispute resolution body has not resolved the dispute within 14 days after a Dispute Notice is given (or such other period as may be agreed between the parties), either Party may refer the dispute to mediation by giving written notice to the other setting out the matters in dispute. Mediation will be administered by the Australian Commercial Disputes Centre Limited (ACDC), conducted in private and in an Australian city agreed by the parties, and held in accordance with the ACDC Guidelines for Commercial Mediation. 

1. Costs of Mediation

The parties will bear their own costs of the mediation and will each bear half the costs of the mediator.

1. Continued performance of obligations

Despite the existence of a dispute, each Party must continue to perform its obligations under this Agreement unless those obligations are the subject of the dispute.

 

ELECTRONIC AGREEMENT 

Unless either Party elects to opt out by specifying this in Item 11 of the Service Schedule, therefore requiring the original Agreement to be maintained in paper form, the parties agree that the electronic copy of this Agreement (whether executed electronically or otherwise by either Party) and as retained by the Client shall be the “original”, written, complete, executed and exclusive statement of this Agreement.

1. Insurance

1. During the Term, Service Provider shall maintain and keep in force, at its own expense and without limiting its indemnity obligations as set forth in clause 14, the following minimum insurance coverages and limits in accordance with this Agreement in forms and with insurance companies qualified to do business in the states where the Services are performed:

1. Professional indemnity insurance with limits up to $1 million

2. Public liability insurance with limits up to $5 million

1. Service Provider shall deliver certificates of insurance as soon as reasonably practicable verifying such coverage, in a form acceptable to Client, as and when requested by the Client.

 

MISCELLANEOUS

1. Governing Law

This Agreement is governed by the laws of Victoria. Each Party submits to the non-exclusive jurisdiction of the courts of that State.

1. Relationship between the parties

The parties to this Agreement are independent contractors. Unless otherwise stated in a Service Schedule, nothing contained or implied in this Agreement constitutes that a Party is the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust and no Party has any authority to bind another Party in any way.

1. Notices

1. A notice, consent or other communication under this Agreement is only effective if it is in writing and is sent to the Party’s mail, email or facsimile.

2. If sent by mail, it is taken to have been received 3 working days after it is posted.

3. If sent by facsimile:

1. by 5.00 p.m. (local time in the place of receipt) on a Business Day – on that day; or

2. after 5.00 p.m. (local time in the place of receipt) on a Business Day or on a day that is not a Business Day – on the next Business Day.

1. If sent by email, it is only effective where:

1. it is sent from the Party’s nominated email address to the recipient’s nominated email address;

2. the recipient has acknowledged receipt of the email by return email or other communication; and

3. an automatic “read receipt” or other system-based notice does not constitute a read receipt notice or acknowledgment under this Agreement.

1. A Party’s address, email and facsimile details will be as set out in Item 9 of the Service Schedule or as otherwise notified in writing between the parties from time to time.

1. Entire Agreement

This Agreement constitutes the entire Agreement between the parties on the subject matter and supersedes all previous agreements, statements and conduct by the parties whether written or oral. 

1. Non-Solicitation

Koda must not solicit or endeavour to solicit any director, manager, officer, employee or contractor of the Client or any Related Body Corporate to terminate their employment or association with the Client or any Related Body Corporate or knowingly employ, engage, assist in or procure the engagement or employment by any business of any such person. 

1. Assignment

Neither Party may assign or novate any of its rights or obligations under this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld.

1. Further Assurances

Each Party agrees to do anything (including execute any document) the other Party reasonably asks to give effect to this Agreement and the transactions contemplated by them.

1. Counterparts

This Agreement may be executed in counterparts consisting of a number of copies, each signed by one or more parties to the Agreement. 

1. No undisclosed principals or undisclosed trusts

Unless otherwise stated in a Service Schedule, neither Party enters into this Agreement as an agent for any other person or as trustee of any trust or on behalf of or for the benefit of any other person.

1. Severability

If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from these Master Terms and each Service Schedule, and these Master Terms and each Service Schedule otherwise remain in full force and effect. This clause has no effect if the deletion alters the basic nature of the Master Terms or any Service Schedule or is contrary to public policy.

1. Variation

This Agreement may only be varied, supplemented, replaced or novated by written agreement signed between the parties. 

1. Waiver

1. A condition of this Agreement or a right created by it, may only be waived by written notice signed by the Party granting the waiver and:

2. No other conduct of a Party (including a failure to exercise or delay in exercising the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

3. A waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and

4. The exercise of a right does not prevent any further exercised of that right or any other right