Master Services Agreement

1. Definitions and interpretation

In this Agreement:

• Addcom means Addcom Technologies Pty Ltd (ABN 38 001 941 484).
• Agreement means these terms together with each applicable Order and any document expressly incorporated by reference.
• Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales.
• Change Request means a written request to change an Order, including its scope, deliverables, timing, assumptions or fees.
• Confidential Information means information that is confidential by nature, is designated confidential, or a reasonable person would understand to be confidential, including commercial, financial, security, technical, personnel, customer and supplier information.
• Customer means the entity identified as the customer in an Order.
• Customer Data means data, content and information supplied or made available by or on behalf of the Customer in connection with the Services.
• Deliverables means the documented work products expressly identified as deliverables in an Order.
• Order means an order form, Product and Service Schedule, Statement of Work, Time and Materials Work Order or other written ordering document accepted by both parties that references this Agreement.
• Personal Information has the meaning given in applicable privacy law.
• Security Incident means confirmed unauthorised access to, acquisition, use, disclosure, alteration, loss or destruction of Customer Data in Addcom's possession or control.
• Services means the information and communications technology, managed, professional, project, support, licensing, hardware or related services described in an Order.

Headings are for convenience only. The words “including” and “includes” are not limiting. A reference to legislation includes amendments and replacements. The singular includes the plural and vice versa.

2. Agreement structure and priority

Each Order forms part of this Agreement. An Order must identify the relevant Services, fees, term and any service-specific responsibilities, service levels, assumptions or exclusions.

If documents conflict, the following order of priority applies unless the applicable Order expressly states otherwise: (a) an executed Change Request; (b) the applicable Order; (c) a data processing or security addendum executed by the parties; and (d) this Agreement. A purchase order or customer procurement portal does not amend this Agreement unless Addcom expressly agrees in writing.

3. Services

Addcom will provide the Services described in each Order professionally, diligently, with due care and skill, and in accordance with applicable laws. Addcom may use suitably qualified personnel and subcontractors to perform the Services and remains responsible for their performance to the extent required by this Agreement.

Service levels, support hours, response targets, restoration targets and exclusions apply only where expressly stated in an Order. Unless an Order states otherwise, target times are service objectives and not guaranteed resolution times.

Dates depend on timely Customer decisions, access, information, approvals and resources. Addcom is entitled to a reasonable extension and an equitable adjustment to fees where delay or additional effort results from Customer action or omission, a third party, or a matter outside Addcom's reasonable control.

4. Customer responsibilities

The Customer must:

• provide accurate and complete information, decisions, approvals, facilities, access and suitably authorised personnel reasonably required for the Services;
• maintain lawful rights, licences, consents and permissions for Customer Data, systems and third-party products made available to Addcom;
• use the Services lawfully and follow reasonable security and operational instructions supplied by Addcom;
• maintain appropriate backups and business continuity arrangements except to the extent an Order expressly makes Addcom responsible for them;
• promptly notify Addcom of suspected unauthorised access, security events, service issues or changes that may affect delivery; and
• ensure that its personnel and authorised users comply with this Agreement.

5. Changes

Either party may propose a Change Request. Addcom will assess the likely effect on scope, risks, dependencies, timing, resources and fees. Except for a Time and Materials Work Order that the parties agree may be changed by email, a change is effective only when recorded in writing and accepted by authorised representatives of both parties.

Addcom is not required to begin changed or additional work until the Change Request is accepted. If urgent action is reasonably required to protect systems, data, safety or service continuity, Addcom may take proportionate protective action and will notify the Customer as soon as reasonably practicable.

6. Delivery and acceptance

Where an Order contains acceptance criteria, the Customer must assess the relevant Deliverable against those criteria within 30 days after Addcom gives written notice of delivery, unless the Order states another period. The Customer may reject a Deliverable only where it materially fails to meet the agreed acceptance criteria and must provide sufficient written detail to allow remediation.

A Deliverable is accepted when the Customer confirms acceptance in writing, uses it in production other than for agreed testing, or does not provide a valid rejection notice within the applicable acceptance period. Addcom will use reasonable efforts to correct a validly rejected Deliverable.

7. Fees, invoicing and taxes

The Customer must pay the fees and approved expenses stated in each Order. Unless an Order states otherwise, fees exclude GST and invoices are payable within seven days of receipt.

If the Customer disputes an invoice in good faith, it must notify Addcom before the due date, identify the disputed amount and reasons, and pay the undisputed amount. The parties will work promptly and in good faith to resolve the dispute.

To the extent permitted by law, Addcom may charge interest on overdue undisputed amounts at 1.5% per month. Addcom may suspend affected Services after reasonable written notice if an undisputed amount remains overdue.

Recurring service fees may be adjusted annually by the annual change in the Consumer Price Index, capped at 5%, unless an Order states otherwise. Third-party price changes, taxes, levies, currency impacts and vendor charges may be passed through as described in the applicable Order.

8. Third-party products and services

Third-party hardware, software, cloud services, subscriptions and licences are subject to the applicable supplier's terms, service levels, warranty, availability and lifecycle. The Customer must comply with those terms. Unless expressly stated in an Order, Addcom does not warrant or control a third-party product or service and is not responsible for a third party's acts, omissions, outages, changes or discontinuance.

Addcom may act as reseller, administrator, implementation provider or escalation point. That role does not make Addcom the manufacturer, software publisher or underlying service provider. Vendor commitments, billing periods and cancellation restrictions apply as stated in the Order or vendor terms.

9. Intellectual property

Each party retains ownership of intellectual property it owned, developed or acquired independently of this Agreement. The Customer retains ownership of Customer Data and Customer-provided materials.

Addcom retains ownership of its pre-existing and reusable methods, know-how, templates, processes, software, configurations, tools and improvements. Subject to full payment, Addcom grants the Customer a non-exclusive, non-transferable, perpetual, royalty-free licence to use Addcom material embedded in a Deliverable solely for the Customer's internal use of that Deliverable.

Subject to full payment and unless an Order states otherwise, ownership of bespoke Deliverables created specifically for the Customer transfers to the Customer on creation, excluding Addcom materials and third-party materials. The Customer grants Addcom the rights reasonably necessary to use Customer materials solely to perform the Services.

10. Goods, title and risk

Risk in goods passes to the Customer on delivery unless an Order states otherwise. Title to purchased goods passes only after full payment. Title to loaned, leased, rented or subscription goods remains with Addcom or the applicable owner.

The Customer must care for goods in its possession, maintain appropriate insurance and return non-owned goods in good condition, fair wear and tear excepted. Security interests may be registered under the Personal Property Securities Act 2009 (Cth), and the Customer must provide reasonable assistance with registration.

11. Information security, privacy and data protection

11.1 Security management

Addcom will maintain an information security management framework appropriate to the nature of the Services and the risks to Customer Data. The framework will use risk-based administrative, physical and technical safeguards and will support Addcom's obligations under applicable law and its information security objectives, including alignment to relevant ISO/IEC 27001 information security management principles.

No statement in this Agreement guarantees that a security event will never occur or transfers the Customer's own governance, risk, compliance, system ownership or security responsibilities to Addcom.

11.2 Security controls

Where Addcom accesses or processes Customer Data, Addcom will apply controls appropriate to the Services, which may include access control based on business need and least privilege, identity and authentication controls, logging and monitoring, vulnerability and patch management, malware protection, secure configuration, backup controls, encryption where appropriate, personnel confidentiality obligations, supplier risk management, incident management and business continuity arrangements.

11.3 Privacy

Each party must comply with privacy and data protection laws applicable to its activities, including the Privacy Act 1988 (Cth) and, where applicable, the Privacy Act 2020 (NZ). The Customer is responsible for determining the lawful basis, notices, consents and instructions for Customer Data supplied to Addcom.

If Addcom processes Personal Information on the Customer's behalf, Addcom will process it only to provide the Services, comply with documented lawful instructions and meet legal obligations. The parties may enter into a separate data processing agreement where required by law or the nature of the Services.

11.4 Security incidents

Addcom will maintain procedures to identify, assess, contain, investigate and remediate Security Incidents. Addcom will notify the Customer without undue delay after confirming a Security Incident affecting Customer Data and will provide information reasonably available to support the Customer's response and legal assessment. Notification is not an admission of fault or liability.

11.5 Subcontractors and locations

Addcom may use subcontractors and service providers where reasonably required to provide the Services. Addcom will apply risk-based due diligence and contractual security and confidentiality obligations appropriate to the services they perform. Data hosting and processing locations may depend on the products and suppliers identified in an Order.

11.6 Assurance and audit information

On reasonable written request, and subject to confidentiality, security and legal restrictions, Addcom will provide available information reasonably necessary to demonstrate compliance with this section. Customer audits must be proportionate, coordinated in advance, avoid disruption, protect other customers' information and use existing independent assurance material where reasonably sufficient. Unless an audit identifies a material breach by Addcom, the Customer bears its audit costs and Addcom may charge reasonable assistance costs.

11.7 Data return and deletion

On termination or expiry of the relevant Services, and subject to payment of applicable fees, Addcom will provide reasonable assistance to return Customer Data in an available standard format where the applicable service permits. Addcom may delete remaining Customer Data in accordance with its retention processes, except where retention is required by law, for legitimate backup cycles, or to establish or defend legal rights. Retained data remains protected under this Agreement.

12. Confidentiality

The receiving party must protect the disclosing party's Confidential Information using at least reasonable care, use it only to perform or receive the Services or exercise rights under this Agreement, and disclose it only to personnel, advisers and subcontractors who need to know and are bound by appropriate confidentiality obligations.

These obligations do not apply to information the receiving party can demonstrate is public without breach, already lawfully known, independently developed, or lawfully received from a third party without restriction. A party may disclose information where required by law, provided it gives prior notice where lawful and reasonably assists efforts to limit disclosure.

Confidentiality obligations survive termination. A party may seek injunctive or equitable relief for an actual or threatened breach.

13. Warranties

Each party warrants that it has authority to enter into this Agreement. Addcom warrants that it will perform the Services with due care and skill and materially in accordance with the applicable Order.

Specific product or service warranties apply only where stated in an Order. To the maximum extent permitted by law, all other warranties, representations and conditions are excluded. Nothing in this Agreement excludes, restricts or modifies a consumer guarantee or other right that cannot lawfully be excluded.

Where a non-excludable guarantee applies and liability may lawfully be limited, Addcom's liability is limited, at Addcom's option, to re-supplying the relevant Services or paying the reasonable cost of re-supply, or replacing or repairing goods or paying the reasonable cost of replacement or repair.

14. Liability

To the maximum extent permitted by law, neither party is liable to the other for indirect, special or consequential loss, or for loss of profit, revenue, anticipated savings, business opportunity, goodwill or reputation, except to the extent such loss forms part of a third-party claim covered by an express indemnity.

Addcom's aggregate liability arising out of or in connection with this Agreement is capped at the applicable insurance limit available for the relevant claim: professional indemnity of AUD 10,000,000 for any one claim and AUD 20,000,000 in the aggregate; and public and products liability of AUD 20,000,000 for any one occurrence.

Nothing in this Agreement limits liability that cannot be limited by law, or liability for fraud, wilful misconduct, death or personal injury caused by negligence, the Customer's payment obligations, or a party's express indemnity obligations, subject to any lawful agreed cap.

15. Indemnities

Addcom will defend and indemnify the Customer against a third-party claim that a Deliverable created by Addcom under an Order infringes that third party's intellectual property rights. Addcom may obtain continued use rights, modify or replace the affected item, or refund prepaid fees for the unusable portion. This indemnity does not apply to claims resulting from Customer materials, Customer modifications, use contrary to instructions, or combinations not supplied or approved by Addcom.

The Customer will defend and indemnify Addcom against third-party claims arising from Customer Data, Customer-provided technology, instructions or materials, or the Customer's failure to obtain necessary licences, consents, permissions or regulatory approvals.

Each party indemnifies the other against third-party claims for personal injury or death to the extent caused by its gross negligence or wilful misconduct in connection with the Services. An indemnity is conditional on prompt notice, reasonable cooperation and the indemnifying party controlling the defence and settlement, provided no settlement admits liability or imposes non-monetary obligations on the indemnified party without consent.

16. Term and termination

This Agreement starts when the first Order is accepted and continues until terminated. Terminating this Agreement does not automatically terminate an Order unless expressly stated or agreed.

Subject to completion or termination of active Orders, either party may terminate this Agreement for convenience on 90 days' written notice. Order-specific minimum terms, renewal, committed charges and termination rights continue to apply.

A party may terminate this Agreement or an affected Order for material breach if the breach is not cured within 40 calendar days after written notice. For failure to pay an undisputed amount, the cure period is 14 Business Days. A party may terminate immediately if the other party becomes insolvent or enters an analogous process.

On termination, the Customer must pay all accrued fees, committed third-party charges, approved expenses and reasonable transition costs. Addcom will provide reasonable handover assistance at its then-current rates. Clauses intended by their nature to survive, including payment, confidentiality, intellectual property, privacy and security, liability, indemnity and dispute provisions, continue after termination.

17. Dispute resolution

A party claiming a dispute must give written notice describing it. Within five Business Days, each party must appoint a representative to negotiate in good faith. If unresolved within 21 days after the notice, either party may refer the dispute to each party's chief executive or nominee.

If unresolved within 40 days after the notice, either party may refer the dispute to binding arbitration under the then-current rules of the Australian Centre for International Commercial Arbitration. The seat is Sydney, Australia, and the language is English. The parties will share third-party arbitration costs equally, excluding their own legal costs, unless the arbitrator determines otherwise.

Nothing prevents urgent interlocutory or equitable relief. The parties must continue performing undisputed obligations while a dispute is being resolved.

18. General

18.1 Notices

A notice under this Agreement must be in writing and sent to the address or email last notified for legal or contractual notices. Email notice is received when the recipient confirms receipt. Postal notice is received three Business Days after posting within Australia or seven Business Days after international posting.

18.2 Non-solicitation

During the Agreement and for 12 months after termination, neither party will directly solicit for employment an employee or contractor of the other party who was materially involved in the Services, except through a general recruitment campaign not targeted at that person.

18.3 Compliance and ethical conduct

Each party must comply with applicable laws, including privacy, anti-bribery and anti-corruption laws. Neither party will offer, request or accept an improper payment or advantage in connection with this Agreement.

18.4 Force majeure

Neither party is liable for delay or failure caused by an event beyond its reasonable control, except for payment obligations. The affected party must notify the other, mitigate the effect and resume performance as soon as reasonably practicable. If the event continues for 60 days, the unaffected party may terminate the affected Order on 30 days' written notice.

18.5 Assignment

Neither party may assign this Agreement without the other's prior written consent, not to be unreasonably withheld. A party may assign to an affiliate or as part of a merger, restructure or sale of substantially all relevant business assets by giving notice, provided the assignee assumes the assigning party's obligations.

18.6 Relationship

The parties are independent contractors. This Agreement does not create a partnership, joint venture, employment, fiduciary or agency relationship. Neither party may bind the other unless expressly authorised in writing.

18.7 Entire agreement; waiver; severability

This Agreement is the entire agreement about its subject matter and replaces prior discussions and representations. A variation or waiver must be in writing and authorised by the affected party. If a provision is unenforceable, it will be read down or severed to the minimum extent necessary without affecting the remainder.

18.8 Governing law

This Agreement is governed by the laws of New South Wales, Australia. Subject to the dispute resolution clause, the parties submit to the courts of New South Wales and courts entitled to hear appeals from them.