Master Services Agreement

SERVICE AGREEMENT

Panalitix provides Services, Content and Technology to improve the performance of businesses to Clients. The general terms and conditions are set out below and the specific terms are detailed in the attached Work Schedule.

1. Definitions

In this Agreement, these words have these meanings.

“Authorised Representative” means one of the Client’s Authorised Representatives as defined in sub-clause 4.1.

“Business Day” means any day other than a Saturday or Sunday or any official public holiday in Australia.

“Business Rule” means a definition or constraint to some aspect of a business process or system. The rationale behind the rule can be driven by factors that are commercial, security or compliance in nature.

“Deliverables” means Documentation, Services and Software as specified in a Work Schedule.

“Documentation” includes business analysis, project plans and budgets as specified in a Work Schedule

“Extended Office Hours” means the periods 6am to 8am and 5pm to 9pm on a Business Day.

“Fees” means the fees specified in a Work Schedule or as defined in sub-clauses 3.1 through 3.4.

“Project Stages” mean the stages specified in a Work Schedule for interim and final completion of the Services.

“Retainer” means a minimum spend for Services by the Client to Panalitix each month, inclusive of fees for agreed services, for the purpose of ensuring skilled resource availability during fluctuations in resource demands.

“Retainer Underage” means the Retainer amount not invoiced as part of fees for Services.

“Services” means the Services defined in separate Work Schedules as agreed between The Client and Panalitix from time to time.

“Software” means application, website or intranet code defined by the Specifications and provided by Panalitix to The Client under the Services.

“Specifications” means the functional requirements description of the project that is the subject of a Work Schedule.

“Standard Office Hours” means the times between the hours of 8am to 5pm on a Business Day

“Work Schedule” means an agreement between the parties that defines the cost, Deliverables and specific conditions of a project.

2. SCOPE OF THIS AGREEMENT

  • 2.1 Panalitix shall provide Services to the Client pursuant to the terms and conditions set out in this Agreement and in the Work Schedule.
  • 2.2 Panalitix warrants that it is suitably qualified and experienced to perform its obligations under this Agreement, and the services to be provided by Panalitix under this Agreement will be provided by suitably trained and experienced staff and in a prompt and professional manner.
  • 2.3 Panalitix enters this Agreement as an independent contractor. Nothing in this Agreement constitutes or is deemed to constitute a party as the employee, partner, agent, joint venture or representative of any other party.
  • 2.4 Panalitix may appoint or engage subcontractors in undertaking the tasks outlined in this Agreement provided that such appointments do not diminish, prejudice or otherwise adversely affect the performance of its obligations under this Agreement.
  • 2.5 The Deliverables will meet the Specifications subject to the Client meeting all Client Obligations and any changes authorized by the Client and accepted by Panalitix. Should the scope of Panalitix’s service include providing Client with Panalitix software, Panalitix shall provide Client with necessary agreed upon licensing of said software upon receipt of final payment from Client as per the terms set for in Addendum A: Licensing agreement.
  • 2.6 Panalitix will use reasonable endeavours to adhere to the Project Stages. If any stage of the project cannot reasonably be completed by an agreed date, Panalitix will determine in consultation with the Client the revised date for completion.
  • 2.7 Provision of Deliverables will be in accordance with the responsibilities set out in a Work Schedule.

3. SERVICES RATES, FEES, COSTS, EXPENSES AND CREDIT

  • 3.1  Panalitix standard rates are defined in Schedule B (sent upon request) and apply to Standard Office Hours.
  • 3.2  Panalitix will notify the Client 45 days in advance of any scheduled rate rise. Existing fixed price quotations or fixed period quotations accepted before notification of a rate rise will not be affected by the scheduled rise..
  • 3.3 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
  • 3.4 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
  • 3.5 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
  • 3.6 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
  • 3.7 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
  • 3.8 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
  • 3.9 A loading of 50% applies to Panalitix’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
    1. a) The Client must pay late fees, calculated daily and compounded monthly, on any money that the Client owes Panalitix but does not pay on time. The late fee is payable on the amount outstanding from the day the money becomes due until it is paid. The late fees will be calculated at a rate of 2% per month or part thereof; and
    2. b) The Client will be liable for collection fees incurred by Panalitix in efforts to recover payment; and
    3. c) The Client agrees to be liable for attorney’s fees incurred by Panalitix in efforts to recover payment; and
    4. d) Panalitix may immediately suspend provision of Services to the Client without notice until receipt of payment.
  • 3.10 Panalitix will bear all costs and expenses incurred by it in relation to this Agreement unless the Work Schedule provides that Client shall be responsible for said expense, or if Client has expressly consented to bear any specific cost or expense prior to it being incurred by Panalitix in which case reimbursement of the cost or expense may be invoiced by Panalitix on the first day of the month following the month in which it was incurred.
  • 3.11 A Unless stated otherwise in any Work Schedules all references to currency are to Australian Dollar currency.
  • 3.12 The Client authorizes Panalitix to obtain from and give to credit reporting agencies and other credit providers certain information about the Client so that Panalitix may manage the Client’s account. This information may include details such as name, address, date of birth, company details and address, credit history and creditworthiness, credit standing with us and credit capacity. Panalitix reserves the right to refuse your application for, monitor ongoing usage of, or restrict access to the Services on the basis of our assessment of credit information relating to the Client. The Client is entitled to see but must first provide evidence that warrants a correction in any errors in the credit information Panalitix holds about the Client.

4. ACCEPTANCE OF REQUESTS FOR SERVICES

  • 4.1 The Client agrees to nominate one or more of Client’s staff members as Client’s Authorized Representatives responsible for providing to Panalitix as required:
    1. a) all necessary data and Client documentation; and
    2. b) clear user requirements, specifications, timelines and tasks for completion; and approval of service requests, user acceptance testing and Documentation.
  • 4.2 The Client agrees that work may immediately commence, and fees accrue on Services requested of Panalitix via:
    1. a) return by email, fax or mail of a valid Panalitix prepared Work Schedule which has been signed by an Authorized Representative;
    2. b) email, fax or mail from an Authorized Representative clearly indicating acceptance of a valid Panalitix prepared Work Schedule indicating the specific Work Schedule by Work Schedule number and revision (if applicable);
    3. c) email, fax or mail by an Authorized Representative where support or maintenance services estimated to be no more than eight (8) hours have been requested
    4. d) email, fax or mail from an Authorized Representative clearly indicating acceptance of a valid Panalitix quotation for support or maintenance services of up to 40 hours indicating the specific quotation by quotation number and revision (if applicable);
  • 4.3 The Client agrees that any Authorized Representative who requests work under Clause 4.1 will also take responsibility for ensuring that validly prepared invoices are approved in a timely manner such that payment is not delayed past the agreed terms.
  • 4.4 The Client agrees that this Agreement forms the standard terms and conditions of engagement with Panalitix. The Client further agrees that until a signed Agreement exists, any Services requested by the Client and accepted by Panalitix will be performed under the conditions listed in this Agreement.
  • 4.5 Counterparts/Electronic Transmission. This Agreement may be executed in one or more counterparts, any of which may be executed and transmitted by facsimile or other electronic methods, and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

5. Privacy Policy

  • 5.1 Confidential Information means:
    1. a) this agreement and associated Work Schedules and quotations;
    2. b) Documentation; and
    3. c) information relating to the business and financial affairs of the parties, but excludes information that:
      1. i) is already in the public domain;
      2. ii) subsequently becomes part of the public domain other than as a result of unauthorized disclosure by the receiving party or its representatives;
      3. iii) is or becomes available to the receiving party from a third party who is legally entitled to possess and provide the information to the receiving party;
      4. iv) the receiving party is legally entitled to know (as shown by appropriate records) prior to the date of disclosure by the disclosing party under this Agreement; and
      5. v) is independently developed by an employee of the receiving party (as shown by the appropriate records) who has no knowledge of the disclosure by the disclosing party under this Agreement.
  • 5.2 Each party must keep the Confidential Information of the other party secret and confidential and must not:
    1. a) disclose such Confidential Information to any person, except to bona fide employees, officers, directors or consultants of such party whose access is necessary to enable such party to perform its obligations or exercise its rights under this Agreement; or
    2. b) use or allow such Confidential Information to be used for any purpose, except in the following circumstances:
      1. i) If such use or disclosure is in accordance with the terms of this Agreement or the prior written consent of the other part;
      2. ii) If such use or disclosure is in accordance with the terms of this Agreement or the prior written consent of the other part;
      3. iii) If such use or disclosure is in accordance with the terms of this Agreement or the prior written consent of the other part;
  • 5.3 Each party:
    1. a) must ensure its employees, contractors, agents, officers and directors comply with the confidentiality obligations contained in this Clause as if bound to them; and
    2. b) acknowledges that, subject to Clause 8, it is liable for any breach by its employees, contractors, agents, officers and directors of the obligations contained in this Clause as if the breach were a breach by the party.
    3. c) agrees to take all reasonable steps and the same precautions to protect the Confidential Information of the other party in its possession from disclosure to third parties as with its own proprietary and confidential information.
  • 5.4 This Clause 5 will survive the termination of this Agreement.

6. LIABILITY

  • 6.1  Panalitix makes no warranties other than those expressly set out in this Agreement and excludes to the fullest extent permitted by law from this Agreement all other warranties, conditions and terms implied by statute, general law or custom.
  • 6.2  Panalitix’s liability to the Client is limited at Panalitix’s option to any one of the following:
    1. a) in the case of goods, the repair or replacement of the goods, the supply of equivalent goods or the payment of the cost of repairing or replacing the goods; and
    2. b) in the case of the supply of services, re-supply of the services or payment of the cost of resupplying the services.
  • 6.3 Subject to Clause 6.2, Panalitix is not liable to the Client in contract for consequential or indirect damages including, without limitation, for loss of data, profit, business, revenue, anticipated savings or goodwill or for claims by third parties and whether or not such damages were foreseeable or contemplated.

7. EMPLOYEES AND CONTRACTORS

  • 7.1 Subject to the laws in force for the time being relating to the validity of restrictive covenants,
    1. a)  Panalitix shall not solicit for employment, whether directly or indirectly, or otherwise employ, engage or contract from the date of this Agreement until the expiration of 6 months after the termination or expiry of this Agreement, any person who is employed or contracted by the Client during the term of this Agreement; and
    2. b) The Client shall not solicit for employment, whether directly or indirectly, or otherwise employ, engage or contract from the date of this Agreement until the expiration of 6 months after the termination or expiry of this Agreement, any person who is employed or contracted by Panalitix during the term of this Agreement.
  • 7.2 If a person who is employed or contracted by the Client seeks to be employed or contracted by Panalitix prior to the expiration of 6 months after the termination of this Agreement, then Panalitix shall promptly advise the Client, who may refuse to consent to Panalitix employing that person at their sole discretion.
  • 7.3 If a person who is employed or contracted by Panalitix seeks to be employed or contracted by the Client prior to the expiration of 6 months after the termination of this Agreement, that the Client shall promptly advise Panalitix, who may refuse to consent to the Client employing that person at their sole discretion.

8. SUSPENSION & TERMINATION

  • 8.1  Panalitix may suspend the provision of Services to the Client indefinitely and without notice, if the Client breaches any provision of this Agreement.
  • 8.2 Either party may terminate this Agreement by giving the other party 14 days’ notice in writing. Fees paid to Panalitix prior to any termination under this Agreement are non-refundable.
  • 8.3 Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
    1. a) the other party breaches any provision of this Agreement and, if such breach is remediable, fails to remedy such breach within 14 days of receiving written notice requiring it to do so;
    2. b) the other party ceases to carry on business;
    3. c) any step is taken to enter into any scheme of arrangement between the other party and its creditors;
    4. d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the other party’s assets or business;
    5. e) any step is taken to appoint a receiver, a receiver and manager, an official manager, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the other party’s assets, undertaking or business;
    6. f) the other party disposes of the whole or any part of its assets, operations or business other than in the normal course of business; or
    7. g) the other party becomes insolvent or is otherwise unable to pay its debts as and when they become due.
  • 8.4 Termination of this Agreement does not affect any accrued rights or remedies a party may have.
  • 8.5 On termination of this Agreement for any reason, Panalitix must, if requested by the Client, immediately:
    1. a) deliver to the Client all Confidential Information of the Client in its possession;
    2. b) deliver to the Client any documents or property of the Client in its possession.
  • 8.6 On termination of this agreement for any reason, the Client must pay Panalitix for work done up until the date of termination.

9. ABOUT THIS AGREEMENT

  • 9.1 This agreement:
    1. a) is governed by the laws of Queensland, Australia (as applicable);
    2. b) constitutes the entire Agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter;
    3. c) may not be varied or waived except in writing signed by the parties and such waiver or variation is without prejudice to the party’s rights in relation to any subsequent breach.
  • 9.2 Each party must, at its own expense, do everything reasonably necessary to give full effect to this Agreement.
  • 9.3 Neither Panalitix nor the Client may assign its rights and obligations under this Agreement without the consent of the other party. Such consent may not be unreasonably withheld.
  • 9.4 Severability. If any term, provision or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Any provision of this agreement that is held to be invalid, void or unenforceable, is to be re-construed in such a way that it is in compliance with Queensland, Australian Laws and thus no longer void, invalid or unenforceable
  • 9.5 Indemnity by Client. Client will at all times indemnify, defend and hold Panalitix, its affiliates, and their respective managers, directors, officers, employees, members, stockholders, partners, licensees, agents, advisors and assigns harmless from and against any and all damages, liabilities, costs and expenses, including without limitation, attorneys’ fees, resulting from any third-party claims, proceedings or actions (collectively, “Claims”) based on or arising from any breach by Client of this Agreement. The foregoing indemnity obligations shall not apply to the extent any Claims arise out of Panalitix’s breach of this Agreement or Panalitix’s gross negligence or willful misconduct. Panalitix must give Consultant prompt written notice of any Claims for which the indemnification set forth in this section applies, and Client will have sole and exclusive control over the defence and settlement of any such Claim, provided that (i) any settlement that affects Panalitix’s rights or obligations hereunder shall require Panalitix’s written approval and (ii) all settlements must provide a full written release of Panalitix and its affiliates, and their respective directors, managers, officers, employees, members, stockholders, partners, licensees, agents, advisors and assigns from liability, and does not impose any injunctive relief on any of them. Panalitix will have the right to participate at its own expense in the defence of such Claim.
  • 9.6 Force Majeure. A party is not in breach of this Agreement nor liable to the other party for a delay or failure to perform an obligation (other than an obligation to pay money) resulting from events or circumstances beyond the party’s reasonable control. Panalitix shall not be held liable for noncompliance of or delays in their duties under this Agreement where such noncompliance is the result of force majeure, including natural disaster, prohibition or order by a public authority, fire, explosion, epidemic, strike, lockout, illness or lack of electric power.
  • 9.7 Survival. All provisions of the Agreement relating to ownership of data or intellectual property, confidentiality, payment, indemnification, non-circumvention, disclaimers of warranties and limitations of liability, as well as any other provisions hereof which, by their nature, are intended to survive termination of this Agreement, shall do so.
  • 9.8 Choice of Law and Forum. This Agreement is entered into in Laws under Queensland, Australia. This Agreement and any rights, remedies, or obligations provided for in this Agreement shall be construed and governed by the procedural and substantive laws enforced in accordance with the laws of Queensland, Australia without regard to the conflicts provisions thereof.

Our Service Agreement may change from time to time. The current version is available on all of our Websites. This policy was last updated on 23 January 2019.

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