Master Services Agreement

Introduction

The Customer wishes to purchase Deliverables and procure Services from AFDigital from time to time.
AFDigital has agreed to supply and install Deliverables and to provide Services to the Customer in accordance with the terms and conditions of this Agreement and the applicable Statement of Work entered into between AFDigital and the Customer.

1 Definitions and Interpretation

1.1 Definitions

In this Agreement, unless the contrary intention appears:

Acceptance Testing or Acceptance Tests means the acceptance testing (if any) of the Deliverables described in the Statement of Work.
Agreement means this document including any schedules or annexures to it.
Assumptions means the assumptions (if any) set out in the Statement of Work including those set out in the paragraph headed “Assumptions” in the Statement of Work and the assumption that there will be no change to the scope of the Deliverables or the Services.
Business Day means a day on which banks are open for business in Sydney, other than a Saturday, Sunday or public holiday.
Confidential Information means:
the terms of this Agreement;
any information relating to the business or financial affairs of a party, including a party’s product pricing or pricing strategies;
any trade secret, technical knowledge, concepts, ideas, designs, programs, processes, procedures, innovations, databases, customer lists or information, sales plans or marketing plans, research, software, records, intellectual property or other information of a party;
any information that would at law be considered confidential information; or any information which is designated as confidential by a party.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Request has the meaning given in clause 4.1(1).
Developed IP has the meaning given in clause 13.1(2).
Deliverable means any Services and other deliverables to be delivered by AFDigital to Customer as specified in the paragraph headed “Deliverables” in the Statement of Work.
Existing IP has the meaning given in clause 13.1(1).
Excluded Services means any services other than the Services (for the avoidance of doubt each item described in the paragraph headed “Excluded Services” in the Statement of Work is an Excluded Service).
Fees means the fees and charges specified in or calculated in accordance with the paragraph headed “Fees” in the Statement of Work, including any agreed variations to those amounts plus such other amounts owing under the Agreement or a Project Contract from time to time.
Force Majeure means any of the following events or circumstances: war, terrorism, riot, insurrection, vandalism or sabotage; strike, lockout, ban, limitation of work or other industrial disturbance; or law, rule or regulation of any government or governmental agency, and executive or administrative order or act of general or particular application; fire; lightning; storm or other adverse weather conditions; explosion; power surge or failure; breakdown of plant, machinery or equipment; shortage of plant, machinery, equipment or material; and any other circumstance or event beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement.
Governmental Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
GST means Goods and Services Tax, as defined in the GST Act or any replacement or other relevant legislation and regulations.
GST Act means A New Tax System (Goods and Services) Act 1999 (Cth) as amended.
Insolvent means being an insolvent under administration, or insolvent (each as defined in the Corporations Act) or having a controller (as defined in the Corporations Act) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due, or having something with the same or a similar effect happen under the laws of any jurisdiction.
Intellectual Property means all patents, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, know-how, logos, designs, circuit layouts, trade marks, domain names, business names, copyright and similar industrial or intellectual property, whether or not now existing, and whether or not registered or unregistered.
Intellectual Property Rights means all intellectual property rights including all rights in the Intellectual Property, including moral rights (as such term is defined in the Copyright Act 1968 (Cth)), any right to have Confidential Information kept confidential, and any application or right to apply for registration of any of these rights.
Maximum Liability Amount means the Fees actually paid by Customer to AFDigital under the Statement of Work or [$100,000] whichever is the lower amount.
Project Contract has the meaning given in clause 4.2(2).
Related Body Corporate has the meaning given in the Corporations Act.
Services means the services described in the paragraph headed “Services” in the Statement of Work (which for the avoidance of doubt excludes the Excluded Services).
Statement of Work means the document headed “Statement of Work” substantially in the form set out in Schedule 1.
Timetable means the indicative timetable set out in the paragraph headed “Timetable” in the Statement of Work or as otherwise agreed by the parties.

1.2 Interpretation

Reference in this Agreement to:

the singular includes the plural and the plural includes the singular;
a person includes a body corporate;
a party includes the party’s executors, administrators, successors and permitted assigns;
a thing includes the whole and each part of it separately;
a statute, regulation, code or other law or a provision of any of them includes:
- any amendment or replacement of it; and
- another regulation or other statutory instrument made under it, or made under it as amended or replaced; and
dollars means Australian dollars unless otherwise stated.
“Including” and similar expressions are not words of limitation.
Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.
If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
To the extent there is any inconsistency between this Agreement and any Statement of Work, the terms of this Agreement will prevail to the extent of the inconsistency.

1.3 Parties

If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly.
An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
A party which is a trustee is bound both personally and in its capacity as a trustee.

2 Segmentation

Customer acknowledges that any arrangement and negotiations to perform the Services has occurred separately and distinctly from any separate arrangement under which the Customer may acquire licenses for salesforce.com online services (whether owned or distributed by AFDigital or otherwise) or may acquire other services.
Customer acknowledges that it has the right to acquire such licenses and services without acquiring Deliverables and vice versa. Customer has been free to acquire such licenses, services and Deliverables from AFDigital or any applicable third party provider.

3 Term

This Agreement commences on the date of this Agreement and continues until terminated in accordance with clause 18.

4 Statements of Work

4.1 Formation of Statement of Work

The Customer may from time to time request the supply of Services and Deliverables from AFDigital by either notifying AFDigital of the Customer’s requirements (Customer Request).
On receipt of a Customer Request, AFDigital will:

meet with the Customer on reasonable notice to discuss Customer’s requirements and the Customer Request; and
prepare and deliver to the Customer a draft Statement of Work based on the information in the Customer Request and the discussions with the Customer, for the Customer’s review.
- AFDigital must ensure that the draft Statement of Work that it submits under clause 4.1(2):
states that it is a “Statement of Work” for the purposes of this Agreement;
is in a form capable of acceptance by the Customer by execution;
specifies the Specifications for the Deliverables and Services;
specifies the Fees and if practicable, an estimate of the third party expenses payable and the invoicing arrangement in respect of the Fees and expenses; and
remains open for acceptance by the Customer for a period of not less than 5 Business Days after the provision of the draft Statement of Work to the Customer.
- The Customer may (but is not required to) accept the draft Statement of Work by executing it and returning an executed copy to AFDigital.

4.2 Execution of Statement of Work

Each Statement of Work that has been accepted and executed by the Customer under clause 4.1(4) will be governed by and subject to the terms and conditions of this Agreement but is not binding on either party until signed by both parties.
Upon execution of each SOW by both parties a binding agreement is formed whereby AFDigital agrees to supply and the Customer agrees to acquire the relevant Deliverables or Services on the terms and conditions of this Agreement and in accordance with the SOW (Project Contract).

5. AFDigital’s obligations

AFDigital will:

perform the Services substantially in accordance with the Statement of Work;
perform the Services with due care, skill and judgment, in a proper workmanlike manner, and substantially in accordance with the Specifications and all applicable laws;
ensure that only suitably qualified and experienced personnel perform the Services; and
use reasonable endeavours to perform the Services in accordance with the Timetable but will not be responsible for delays caused by the Customer or for reasons beyond AFDigital’ control.

6. Customer’s obligations

The Customer must:

provide or give AFDigital access to all systems, materials, documents and information (and in the case of third party sites procure for AFDigital) timely access (physical and electronic) to all sites and facilities as reasonably required by AFDigital to enable it to perform the Services and meet its obligations under the Project Contract; and
comply with the obligations of the Customer (if any) specified in the Statement of Work, including those set out in the paragraph headed “Dependencies” in the Statement of Work.
provide AFDigital promptly with any information regarding its business, operations or requirements which AFDigital may reasonably require from time to time to enable AFDigital to perform its obligations under this Agreement;
for the purposes of supplying the Deliverables or the Services, give to the authorised personnel of AFDigital during normal working hours full and safe access to the Premises and provide adequate free working space and such other facilities as may be reasonably necessary for installing the Deliverables;
ensure that its employees, personnel and any subcontractors will co-operate fully with AFDigital and that such employees, personnel and subcontractors will be qualified to carry out any tasks which they may be assigned relating to a Project Contract;
put in place adequate security and virus checking procedures in relation to any computer facilities to which it provides AFDigital with access; and
comply with any reasonable requests made by AFDigital in the course of supplying the Deliverables or the Services.

If AFDigital is required to attend a site for or on behalf of Customer, then Customer must provide AFDigital with (or in the case of a third party site, procure for AFDigital) a safe and clean working environment; and facilities and equipment sufficient to enable AFDigital to meet its obligations under the Agreement.

The Customer warrants that it owns or has a right to use any software, materials or information provided to AFDigital by Customer and which AFDigital is required to use or access in performing or providing the Deliverables or Services and that such use or access by AFDigital will not breach the Intellectual Property Rights of any third party in such software, materials or information or any applicable laws.

7 Warranties

7.1 General Representations and Warranties

Each party represents and warrants to the other party that each of the following statements is true and correct as at the date of this Agreement and the date on which each Statement of Work becomes binding:

if it is a corporate entity, it is validly existing under the laws of its place of incorporation;
it has the power to enter into and perform its obligations under this Agreement each Project Contract;
it has taken all necessary action to authorise its entry into and performance of this Agreement and each Project Contract;
its obligations under this Agreement and each Project Contract are valid and binding and enforceable against it in accordance with their terms; and
the execution and performance by it of this Agreement and each Project Contract did not and will not violate in any respect a provision of:

a law or Governmental Agency binding on it; or
any document or agreement which is binding on it or its assets.

AFDigital Warranties

Subject to clause 7.3, AFDigital warrants that:

the Deliverables will comply with the Specifications in all material respects during the Warranty Period; and

it owns or has a right to use any software, materials or information which AFDigital is required to use or access in performing or providing the Deliverables and that to the best of knowledge of AFDigital, such use or access by AFDigital will not breach the Intellectual Property Rights of any third party in such software, materials or information.

7.3 Exceptions to AFDigital Warranties or liability

For the avoidance of doubt, AFDigital does not warrant and will not be responsible or assume any liability for any of the following:

anything that cannot be reproduced or otherwise demonstrated;

anything caused by third party software or hardware with which the software interacts and was not supplied by AFDigital unless the interaction is specifically contemplated as part of providing the Deliverables;

anything caused by or associated with modifications, alterations or additions made by Customer or any other third party;
operator errors caused by Customer or a third party (other than AFDigital) acting in a manner contrary to guidance or instructions (whether in written form or during a product demonstration) from AFDigital or the relevant manufacturer;
anything caused by failure by Customer to comply with the terms and conditions contained in this Agreement;
anything that does not relate to the Deliverables provided under this Agreement.

anything caused by Customer’s: misuse of the Deliverables; or failure to operate or use the Deliverables in accordance with the applicable specifications, documentation or manufacturer’s instructions;
anything caused by hardware or telecommunications equipment or other third party product malfunctions; and
anything caused by Customer’s use of the Deliverables outside the scope of this Agreement or in a manner for which it was not designed.

8. Changes to Statements of Work

8.1 Change process

Either party may request a change to a Statement of Work under a Project Contract.
Where either party desires to propose such a change, it must submit a change request in writing to the other party in writing, including appropriate details as to the nature of the change.
Each party agrees to respond in a timely manner, in writing, to change requests submitted by the other party.

8.2 Giving effect to changes

No such change is binding upon the parties unless the following are agreed in writing signed by the parties:

AFDigital’s proposal for implementing the change;
the impact, if any, on the Assumptions;
the amount of additional fees and expenses, if any, payable by Customer to AFDigital as a result of the change; and
the impact, if any, on the Timetable.

8.3 Effective date of change

Any change will be effective from the date on which the parties execute the document recording the change or such other date specified in that document.

9 Acceptance Testing

9.1 Application of clause

This clause 9 only applies where the parties have agreed Acceptance Testing Criteria under the Statement of Work, but not otherwise.

9.2 Acceptance Testing

Within the Acceptance Testing Timeframe the Acceptance Testing Party must conduct the Acceptance Tests on the relevant Deliverables to ensure such Deliverables conform with the Acceptance Testing Criteria. The other party may observe and participate in the Acceptance Tests.
On completion of the Acceptance Tests, if the relevant Deliverables conform to the Acceptance Testing Criteria the Acceptance Testing Party will notify the other party in writing that those Deliverables satisfy the Acceptance Testing Criteria and in that case the Deliverables will be deemed to be accepted by Customer.
If the Acceptance Testing Party is the Customer and the Customer does not notify AFDigital that the Customer rejects a Deliverable (providing reasons for the rejection) within five (5) business days of AFDigital submitting the Deliverable for acceptance or before the end of the Acceptance Testing Timeframe (whichever is the longer period), the Deliverable will be deemed complete and accepted by Customer.

If the Deliverables do not satisfy the Acceptance Criteria then:

if the Acceptance Testing Party is AFDigital the tests must be repeated by AFDigital at such intervals as it considers appropriate within 10 Business Days of the date on which the first acceptance tests were conducted and until the Deliverables confirm to the Acceptance Criteria; and
if the Acceptance Testing Party is Customer, then Customer must immediately notify AFDigital of the non-conformities and in sufficient detail to allow AFDigital to understand how the Deliverable does not conform to the Acceptance Criteria and AFDigital must within a reasonable period after receipt of such notice take such action as it considers appropriate to correct the non-conformities and re-submit the Deliverables to Customer or notify Customer that Deliverables are ready for repeat Acceptance Testing and Customer must conduct such Acceptance Testing immediately after the date on which the Deliverables are re-submitted.

9.3 Acceptance

Subject to the provisions of this clause 9.3, the Acceptance Testing will be repeated until the Deliverables are accepted as contemplated under clause 9.2.
If the Deliverables do not satisfy the Acceptance Criteria by 20 Business Days after the date on which the Acceptance Testing was first conducted the parties or at AFDigital option after 3 or more Acceptance Tests the parties will in good faith endeavour to agree on a resolution.
For the purposes of determining whether the Deliverables do not satisfy or conform to any Acceptance Criteria:

any trivial defect or non-conformance will be ignored; and
any of the matters referred to in clause 7.3 will be ignored; and
any failure to conform which does not materially and/or negatively affect Customer’s intended use of the Deliverables will not be a valid reason for withholding acceptance.

9.4 Acceptance of Deliverables or Services

If the Statement of Work does not specify that Acceptance Testing will be performed relating to a Deliverable then unless otherwise specified in the Statement of Work that Deliverable or Service will be deemed complete and accepted by Customer the day after AFDigital performs it or delivers it.
If the Statement of Work specifies that Acceptance Testing will be performed on a Deliverable then acceptance for that Deliverable will be determined in accordance with the remainder of this clause 9.

10 Fees, Payment and Invoicing

10.1 Fees

The Fees may be adjusted in accordance with the provisions of the Statement of Work if any of the Assumptions change or if the Timetable changes.
The Customer acknowledges that in agreeing to the Fees AFDigital relied on the Assumptions and proposed Timetable and Customer warrants that:

the Customer is not aware of any material information which has not been provided to AFDigital and which could reasonably have been expected to have any impact on the Assumptions or Timetable or result in the Assumptions or Timetable being incorrect; and
the Assumptions and Timetable are both reasonable in all of the circumstances.

10.2 Invoicing

AFDigital will invoice Customer at the Invoicing Intervals.
Invoices will be issued out of the AFDigital Australia Office in Australian dollars.

10.3 Payment

Customer must pay the Fees no later than fourteen (14) days after the date of the AFDigital’s invoice.
If the Customer fails to pay the Fees on the due date, AFDigital may in its absolute discretion and without prejudice to any of its other rights and remedies do one or more of the following:

charge Customer interest at 1.5% per month or the maximum allowed by law (whichever is the lower amount);
require Customer to pay AFDigital upon demand all collection costs, including legal costs associated incurred by AFDigital in collecting the outstanding amount; or
cease or suspend supplying the Deliverables or the Services until the outstanding amounts have been paid.

To the extent permitted by law. AFDigital reserves the right to adjust the terms of payment under this Agreement should Customer’s financial condition materially change.
If Customer disputes in good faith, the whole or any portion of any invoice, Customer must no later than 7 days after receipt of the invoice notify AFDigital in writing explaining why the invoice is disputed. Customer must pay the amount not in dispute, but, Customer may withhold payment of the disputed amount until the dispute is resolved only if Customer:

complies with this clause 10.3(4);
is not otherwise in breach of this Agreement; and
continues to act in good faith at all times.
In all other circumstances, Customer will be deemed to have withdrawn its objection to the disputed invoiced amount(s).

AFDigital will accept payments via electronic funds transfer (EFT) to the bank account nominated by AFDigital.
Customer is responsible for any fees relating to the EFT charged by AFDigital’ or Customer’s bank.

10.4 Expenses

Customer must reimburse AFDigital for all out-of-pocket expenses, including travel, accommodation, third party administration and material costs incurred in providing the Deliverables or Services.

11 GST

11.1 Definitions

In this clause:

words or expressions used in this clause which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires;
any reference to GST payable by a party includes any corresponding GST payable by the representative member of any GST group of which that party is a member;
any reference to an input tax credit entitlement by a party includes any corresponding input tax credit entitlement by the representative member of any GST group of which that party is a member; and
if the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.

11.2 GST and Supplies

Unless GST is expressly included, the consideration to be paid or provided under any other clause of this Agreement for any supply made under or in connection with this Agreement does not include GST.

To the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST exclusive consideration to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is to be paid or provided.
A party’s right to payment under clause 11.2(2) is subject to a valid tax invoice being delivered to the party who is the recipient of the taxable supply.
To the extent that a party is required to reimburse or indemnify another party for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.

12 Confidentiality

12.1 Acknowledgement

Each party acknowledges that in the course of their association with each other they will have access to Confidential Information.

12.2 Obligation

Each party will, and will procure that their respective employees and contractors:

treat all Confidential Information as confidential and not make public or disclose to any other person that Confidential Information without the prior written consent of the other party except where required by law or to a party’s professional advisers and insurers;
take reasonable steps to prevent third parties from gaining access to Confidential Information; and
immediately return all of the other party’s Confidential Information (including all copies) upon request.

13 Intellectual Property

13.1 Existing Intellectual Property

The Intellectual Property Rights owned or controlled under licence by each party before the Commencement Date remain the property of that party (Existing IP) and nothing in this Agreement transfers a party’s interest in that party’s Existing IP to the other party.

Subject to clause 13.2, Customer acknowledges and agrees that the Intellectual Property Rights in any ideas, concepts, techniques or materials (including software, data, text, words, graphics, logos, artwork, audio, video or software) developed by or for AFDigital in the course of producing or performing a Deliverable or supplying the Services remain the property of the AFDigital (Developed IP)
Subject to:

clause 13.2;
the Customer paying all Fees payable to AFDigital under this Agreement; and
any restrictions set out in the Statement of Work; and
on payment by Customer of AFDigital final invoice and clearance of such payment through AFDigital nominated bank account,

AFDigital grants to Customer a non-exclusive, royalty free and non-transferable licence to use the Developed IP to the extent incorporated in a Deliverable and necessary to obtain the benefit of the Services, use the Deliverables and to comply with its obligations under this Agreement.

13.2 Customer Intellectual Property

Subject to AFDigital’s ownership of AFDigital’s Existing IP and rights in all other Developed IP, upon payment by the Customer of AFDigital final invoice and clearance of all payments through AFDigital nominated bank account ownership of all other Intellectual Property Rights in a Deliverable developed specifically for Customer will vest in Customer. Customer grants to AFDigital a non-exclusive, transferable, royalty free licence to use and exploit such intellectual property.
To avoid doubt such licence does not apply to any of Customer’s Confidential Information.

13.3 Third Parties

Third party Intellectual Property Rights will remain the property of such third party.

14 Non-Solicitation

During the period of 12 months after the expiry or termination of this Agreement or the date on which the Deliverables have been performed or provided (whichever is the first to occur), neither party may solicit or endeavour to entice away from the other party any employee of the other party or any contractor engaged by that other party at any time without the prior written consent of the other party.

15 Limitation of Liability

15.1 Limited warranties

The only conditions, guarantees and warranties which are binding on AFDigital in respect of the Deliverables or Services supplied by AFDigital to the Customer are those imposed and required to be binding by statute (including the Competition and Consumer Act 2001 (Cth)) and those (if any) expressly set out in this Agreement.
To the extent permitted by law all other warranties, conditions or guarantees whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or the Deliverables, are excluded.

15.2 Limited Liability

Certain legislation, including the Competition and Consumer Act 2001 (Cth), may imply warranties, guarantees or conditions or impose obligations upon AFDigital which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent.
This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent permitted by law, AFDigital’s liability (if any) for breach of any warranty, guarantee or condition, which cannot be lawfully excluded but can be lawfully limited is limited to and completely discharged, at the option of AFDigital to:

in the case of goods, by either: the supply by AFDigital of equivalent or replacement goods; or AFDigital repairing or paying the cost of repairing the goods; and
in the case of advice or Services, by supplying or paying the cost of supplying the advice, or Services again.

15.3 Consequential loss

Under no circumstances will AFDigital be liable to Customer on account of any claim (whether based in contract, negligence or other tort, breach of any statutory duty or otherwise) for any special, consequential, indirect, incidental or exemplary damages, or for any loss of profits, revenue, interest, goodwill, loss or corruption of data or for any loss of or interruption to Customer’s business, or for any damages or sums paid by Customer to third parties, even if AFDigital has been advised of the possibility of such damages.

15.4 Maximum Liability

Without prejudice to any other provision of the Agreement limiting AFDigital liability, AFDigital’ total liability of any kind whatsoever under or connection with this Agreement, including the Deliverables will not exceed the Maximum Liability Amount.

16 Indemnity

Subject to clause 15, each party (Indemnifier) indemnifies the other party (Protected Party) against:

all losses incurred by the Protected Party;
all liabilities incurred by the Protected Party; and
all costs actually payable by the Protected Party to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by the Protected Party in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal);

arising directly or indirectly as a result of or in connection with a breach by the Indemnifier of its obligations under this Agreement.

17 Insurance

AFDigital will maintain the following insurance during the term of this Agreement for so long as it is providing Deliverables:

professional indemnity insurance;
public and product liability insurance; and
to the extent required by law, workers compensation insurance.

18 Termination

18.1 Breach

Without limiting a party’s termination rights under any other provision this Agreement, either party may terminate this Agreement or a Project Contract immediately by written notice to the other party if the other party breaches any provision of this Agreement or Project Contract, and the breach has not been remedied within 20 Business Days after service of written notice of the breach requiring it to be remedied.

18.2 Insolvency

Either party may terminate this Agreement or a Project Contract immediately by written notice to the other party if that other party:

fails to make a payment by the specified due date;
becomes, threatens or resolves to becomes Insolvent; or
ceases or threatens to cease conducting its business in the normal manner.

18.3 Termination for Convenience

Either party may terminate this Agreement or any Project Contract by providing 90 days’ written notice to the other party, without liability to pay any termination fee or subject to clauses 19.1 and 19.3, compensation.

19 Consequence of Termination

19.1 Payments on Termination

Upon termination of this Agreement or any Project Contract:

under clause 18.1 following breach by the AFDigital, or under clause 18.2 due to the Insolvency of AFDigital, or upon termination by AFDigital under clause 18.3, Customer must pay to AFDigital any outstanding amounts (either billed or accrued) which are payable to AFDigital under this Agreement or any Project Contract as at the date of termination; and
for any reason other than as set out in clause 19.1(1), upon termination, Customer must pay to AFDigital:

any outstanding amounts (either billed or accrued) which are payable to AFDigital under this Agreement or any Project Contract as at the date of termination; and
[100]% of all Fees applicable to the portion of any operative Project Contract remains uncompleted at the date of termination, including all future invoices included within the termination notice period.

19.2 Return of Information on Termination

Upon termination of this Agreement, each party must return, or destroy, at the other party’s option, all documentation and information relating to the other party’s business (in whatever form it is held including but not limited to written, graphic or electromagnetic form, and all copies) in that party’s possession or control.
Such information includes, without limitation, any Confidential Information and any records relating to a party’s Intellectual Property.

19.3 Effect of Termination

Termination of this Agreement will not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination including, without limitation, any claim for damages as a result of the occurrence of an event giving rise to a right of termination.

20 General

20.1 Notices

A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
In addition to any other method of service provided by law, the Notice may be:

sent by prepaid post to the address of the addressee set out in this Agreement or subsequently notified;
sent by facsimile to the facsimile number of the addressee; or
delivered at the address of the addressee set out in this Agreement or subsequently notified.

If the Notice is sent or delivered in a manner provided by clause 20.1(2), it must be treated as given to and received by the party to which it is addressed:

if sent by post, on the 3rd Business Day (at the address to which it is posted) after posting;
if sent by facsimile before 5pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
if otherwise delivered before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

Despite clause 20.1(3)(b):

a facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues a report confirming the transmission of the number of pages in the Notice; and
a facsimile is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 3 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given, whichever is later.

A Notice sent or delivered in a manner provided by clause 20.1(2) must be treated as validly given to and received by the party to which it is addressed even if:

the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or
the Notice is returned unclaimed.

20.2 Entire understanding

This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to that subject matter, including any term of this Agreement.

20.3 Nature of engagement

AFDigital is engaged by Customer as an independent contractor.
Nothing in this Agreement creates a relationship between the parties of employer and employee, principal and agent, partnership or joint venture.

20.4 Variation

An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

20.5 Assignment and subcontracting

Except to a Related Body Corporate, neither party may assign or otherwise transfer its rights under the Agreement without the prior written consent of the other party.
AFDigital may sub-contract or delegate the performance of all or part of the Services or the supply of the Deliverables to subcontractors, including the sub-contractors (if any) specified in the Statement of Work . AFDigital will not be relieved of any of its liabilities or obligations under this Agreement if it sub-contracts all or part of the Services or the supply of the deliverables.

20.6 Precedence

If there is any inconsistency between the terms of the Statement of Work and this Agreement the terms of this Agreement will prevail to the extent of any inconsistency.

20.7 Severance

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability, but will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

20.8 Execution by counterparts

This Agreement may be executed in any number of counterparts.
Each counterpart is an original but the counterparts together are one and the same agreement.

20.9 No Waiver

A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

20.10 Governing Law

This Agreement is governed by the laws of New South Wales.
The parties submit to the non-exclusive jurisdiction of courts of New South Wales.

20.11 Dispute Resolution

The parties agree that if there is a dispute they will work together in good faith first, to resolve the matter internally by escalating it to higher levels of management and then, if necessary, to use a mutually agreed alternative dispute resolution technique prior to resorting to litigation.

21 Privacy

Each Party must ensure it is aware of all of its obligations (if any) under the National Privacy Principles and will at all times comply with their requirements (as they apply to that party).

22 Force Majeure

A party will not be liable for any delay or failure to perform its obligations under this Agreement (other than to pay money) if such delay is due to Force Majeure.
If a delay or failure of a party to perform its obligations (other than to pay money) is caused or anticipated due to Force Majeure, the performance of that party’s obligations (other than payment) will be suspended while the Force Majeure continues.