Master Services Agreement Terms

1 Acceptance
1.1 This Agreement is between CDT Phoenix Pty Ltd t/as KAOS Data ABN 20 160 839 136, its successors and assignees, (referred to as “KAOS”, “the Supplier”, “we”, “us” or “our”), and the Client described in the Quote (referred to as “Client”, “you” or “your”), and collectively the Parties.
1.2 You have requested the Services. You agree and accept that these Terms and Conditions, including the Service Schedule (Terms) the Quote and any SOW, form the Agreement under which we will supply Services to you. Please read the Terms carefully. Please contact us if you have any questions.
1.3 In the event of any inconsistency between:
(a) a Quote;
(b) these Terms, excluding the Schedules; and
(c) the Schedules,
the document listed higher in the above list will take precedence to the extent of the inconsistency.
1.4 You accept this Agreement by:
(a) signing and returning the Quote;
(b) confirming by email that you accept the Quote; or
(c) making part or full payment for the Services, by the methods set out in our Quote or our tax invoice to you (Invoice).

2 Term
2.1 This Agreement commences on the Commencement Date and continues until terminated under clause 2.3 or clause 19 (Term).
2.2 Each Quote commences on the Order Commencement Date specified in the Quote and continues for the period specified in the Quote.
2.3 If there are no Quotes in effect, either party may terminate this Agreement by giving the other party 30 days written notice.

3 Services
3.1 We agree to perform the Services set out in the Quote with due care and skill.
3.2 Third parties who are not our employee or our direct contractor (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.
3.3 Our Services cover the scope in the Quote. If you request additional services, including but not limited to changes in scope or variations (Variation), we have discretion as to whether we perform this work and whether an adjustment to the Fee may be required in respect of the same.
3.4 If we agree to perform any Variation, then we will inform you and agree with you any additional costing (Variation Fee). We will invoice you accordingly for the Variation upon receipt of your approval, which may be via a SOW signed by the parties.

4 Data
4.1 The Client must provide the Data requested by the Supplier in order for the Supplier to provide the Services.
4.2 The Client grants to the Supplier a limited licence to copy, transmit, store and back-up or otherwise access during the relevant Services Term solely:
(a) to supply the Services including to enable the Client, its Personnel and any Authorised Users to access and use the Services;
(b) for diagnostic purposes;
(c) to test, enhance and otherwise modify the Services;
(d) to develop other Services provided we de-identify the Data; and
(e) as reasonably required for the performance of the Supplier’s obligations under this Agreement.
4.3 The Client represents and warrants that any and all Data supplied by the Client or otherwise accessed by the Supplier through the provision of the Services is the sole and exclusive property of the Client or the Client has secured any and all authorisations and rights to use the Data as applicable.
4.4 The Client acknowledges and agrees that:
(a) the Supplier may relocate the Data to another jurisdiction. In each case, the Supplier will give the Client 15 Business Days’ notice and use all reasonable endeavours to minimise the effect of such Change on the Client’s access and use of the Services; and
(b) the Supplier is not responsible for the integrity or existence of any Data on the Client’s System, network or any device controlled by the Client or its Personnel.

5 Support and Service Levels
5.1 During the Term, the Supplier will provide the Support Services in accordance with the Service Levels during the Support Hours provided that:
(a) the Client provides the Supplier with notice for applicable Services in accordance with any applicable system and processes as set out in the Services Schedule, as applicable; and
(b) where required, the Client assists with investigating and ascertaining the cause of the fault and provides to the Supplier all necessary information relevant to the fault (including but not limited to what the Client or their Personnel has done in relation to the fault).

6 Services Acceptance Testing
6.1 The Services provided will be accepted by you on the basis of any Acceptance Tests set out in an SOW. Within 5 business days of receiving the Services to which the Acceptance Tests apply you agree to:
(a) notify us of your acceptance; or
(b) notify us of your rejection, which cannot be unreasonably given, and provide us with the reasons for your rejection.
6.2 If the Services fail to meet the Acceptance Tests you can:
(a) waive the need for further Acceptance Tests;
(b) request that the Services be amended to satisfy the Acceptance Tests; or
(c) accept the Services on the basis that you will allow us to set a timeframe to amend the error or non-compliance.
6.3 If you request that we amend the Services in accordance with clause 6.2, we will do so at no additional charge, for any other amendments you will be charged a Variation Fee.
6.4 If you do not give the notice specified in clause 6.1 within 5 business days of receiving the Services to which the Acceptance Tests apply or use the Services in a non-test, live or production environment prior to acceptance, such Services will be deemed to be accepted.

7 Hardware Title and Risk
(a) Title in the Hardware will not pass to the Client until the later of delivery or payment has been processed or otherwise received by KAOS. If payment is declined for any reason KAOS reserve the right to reclaim the Hardware from the Client’s possession, custody or control even if they have been delivered to the Client or moved from the delivery address. KAOS reserves the right to keep or sell the Hardware. Risk of loss, damage or deterioration to any Hardware will pass to the Client on delivery.
(b) If the Client is unable or unwilling to have the Hardware delivered on the agreed delivery date, we may store the Hardware. You agree to remove the Hardware from us within thirty (30) days of us issuing you with a written notice. If the Client does not remove the Hardware from KAOS’s storage facility within thirty (30) days, the Client provides consent for KAOS to sell any or all of the Hardware that KAOS is holding for the Client.

8 Hardware Acceptance
(a) The Client is responsible to carry out reasonable examination of the Hardware and for ensuring that the Hardware delivered functions with the Client System.
(b) If within 3 Business Days of delivery of the Hardware the Client gives written notice to KAOS of any defect in any Hardware or that the Hardware does not function with the Client System, KAOS will repair or replace the Hardware.
(c) If the Hardware is used by the Client after 3 Business Days of delivery, the Hardware will be deemed accepted by the Client and functioning with the Client’s System upon such use.

9 Price, Invoicing and Payment
9.1 You agree to pay us the Fees, for the Services that you have requested, as set out in the Quote. All amounts are stated in Australian dollars. All purchase prices include Australian GST where indicated (where applicable).
9.2 If you dispute an invoiced amount:
(a) provide us with written notice within 5 Business Days of the date of the invoice stating the amount you believe is due for payment and setting out the reasons for not paying the balance. You cannot dispute invoices once 5 Business Days from the date of the invoice have elapsed; and
(b) pay the amount you believe is due for payment by the date that payment must be made under the Quote.
9.3 If any payment has not been made in accordance with the Invoice Terms, Supplier may (at its absolute discretion):
(a) immediately cease to provide Services to you or suspend the provision of the Services, and recover as a debt due and immediately payable from you its Additional Costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
(d) report Client to any independent credit data agencies.
9.4 If you rectify such non-payment after the Services have been suspended, then the Supplier we will recommence the provision of the Services as soon as reasonably practicable and may charge you a re-connection fee and or re-establishment fee.

10 Usage Policy
10.1 Subject to clause 10.2, in receiving the benefit of the Services, you must comply with the Usage Policy.
10.2 If the Supplier becomes aware of any breach or threatened breach of the Usage Policy by you then we will:
(a) provide you with reasonable notice; and
(b) give you one Business Day from the date of the notice referred to in paragraph (a) above, to remedy, or take steps to prevent, such breach or threatened breach (as the case may be), and if the breach occurs or remains after that period, then we may suspend the Services, subject to clause 10.3 below.
10.3 If the Supplier suspends the provision of the Services in accordance with clause 10.2 and the breach or threatened breach is remedied at any time after such suspension, then the Supplier will recommence the provision of the Services as soon as reasonably practicable.
10.4 You will be liable to pay any additional losses or amounts incurred by the Supplier as a result of it suspending the Services under clause 10.3. The Supplier will not have any liability to you in connection with such a suspension.

11 Warranties
11.1 We warrant that throughout the Term that:
(a) we are properly constituted and have the right and authority to enter into this Agreement;
(b) we have, and will at all times have, use and apply the skills, qualifications, expertise, capacity, resources and experience necessary to carry out our obligations under this Agreement;
(c) to the best of our knowledge we will not infringe any third-party rights in working with you and providing the Services;
(d) we will provide the Services in accordance with all applicable Laws;
(e) all of our obligations under this Agreement will be carried out:
(1) by suitably competent and trained Personnel;
(2) in an efficient and professional, manner; and
(3) with the standard of diligence and care normally employed by duly qualified persons performing obligations similar to our obligations under this Agreement; and
(4) we are responsible for obtaining any consents, licences and permissions from other parties necessary to provide the Services, at our own cost.
11.2 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior 12-month period.
11.3 You warrant that throughout the term of this Agreement that:
(a) there are no legal restrictions preventing you from agreeing to the Terms;
(b) you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third-party rights in working with us and receiving the Services;
(e) you must grant us reasonable access to the Data, source code, websites and/or Systems identified in the Quote or SOW to ensure that we can perform our Services;
(f) you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns;
(g) you are responsible for obtaining any consents, licences and permissions from other parties necessary to receive the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(h) you consent to the use of your name in relation to the Services in a way which may identify you, including in website testimonials;
(i) if applicable, you have a valid ABN which has been advised to us; and
(j) if applicable, you are registered for GST purposes.

12 Your Obligations
12.1 The Client will provide all required materials, including the Data specified in clause 4, as required by the Supplier from time to time for the Supplier to perform the Services.
12.2 The Client must, at the Client’s own expense:
(a) provide all reasonable assistance and cooperation to the Supplier in order to enable the Supplier to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Client and its Personnel to engage in the activities described in this Agreement and to allow the Supplier to provide the Services;
(b) use reasonable endeavours to ensure the Data is virus-free, accessible and usable in order for us to provide the Services;
(c) permit the Supplier and its Personnel to have reasonable access to the Client Systems, where necessary, for the purposes of supplying the Services; and
(d) ensure that only Client Personnel and Authorised Users will access and use the Services and such use and access will be in accordance with the terms and conditions of the Software Licences.
12.3 The Client is responsible for its use of the Services and must ensure that no person uses the Services:
(a) to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
(b) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(c) in any way that damages, interferes with or interrupts the supply of the Services.
12.4 The Client acknowledges and agrees that:
(a) it is responsible for all users using the Services including its Personnel and any Authorised Users; and
(b) if the Supplier wishes to alter the delivery of the Services which requires a change to the Client Systems (including reconfigurations or interface customisations the extent necessary to access or use the Services) the Parties must agree such changes in writing. For clarity, the Supplier may not alter the delivery of the Services so that it is materially less than that available at the Order Commencement Date.

13 Exclusions
The following are excluded from the scope of Services, unless otherwise agreed in a Quote:
(a) Additional equipment being installed as additional product, rather than replacement product by the Client after the date of this Agreement, will be charged at standard hourly rates.
(b) Installation of new server equipment due to system upgrades can be added in addition by way of a Quote.
(c) Integration of new premises or sites into main system/environment. This will be treated as new services and will be quoted in addition and can be added in addition by way of a Quote.

14 Access to Premises
14.1 You must give the Supplier and its Personnel reasonable access to your Systems, premises and facilities as may be required to enable the Supplier to perform the Services. In doing so, you must:
(a) provide and maintain a safe working environment for the Supplier’s Personnel while accessing your premises and facilities; and
(b) ensure that you discharge all health and safety duties imposed on you, including in respect of the Supplier’s Personnel, as a person conducting a business or undertaking as required by applicable legislation regarding workplace health and safety.

15 Our Intellectual Property
15.1 The work and materials that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the Intellectual Property incorporated into our Materials.
15.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property ownership rights in our Materials, except as stated in these Terms or with our written permission.
15.3 Your use of our Materials does not grant you a licence, or act as a right of use, any of the Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
15.4 You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as on-sale to third parties.
15.5 You are responsible for proofing and approving all specifications drafted by us for your business. Upon approval from you, any subsequent errors in publishing are not our responsibility.
15.6 If we create any new Material in the course of providing the Services, we will own the Intellectual Property rights subsisting in such new Material on creation (New Material) and we grant you a non-exclusive, non-transferrable and non-sub-licensable licence to use New Material during the Term for the sole purpose of using the Services.

16 Your Intellectual Property and Moral Rights
16.1 You agree to provide information including Intellectual Property to us to enable us to provide the Services. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use the Intellectual Property in any way we require to provide the Services to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
16.2 If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Services to you;
(b) irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
(c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
16.3 You grant us a royalty-free, perpetual, worldwide, non-transferrable, non—sublicensable, irrevocable licence to use and display your trademarks, logos, business names and website links for testimonial purposes.

17 Confidential Information
17.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose.
17.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
17.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
17.4 The obligations under this clause will survive termination of these Terms.

18 Feedback and Dispute Resolution
18.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us.
18.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith within 10 Business Days of the respondent’s receipt of the notice to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales, Australia, to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
18.3 Each Party must keep this Agreement and the Services confidential and must not do anything which disparages or brings the other Party into disrepute in any media.
18.4 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

19 Termination
19.1 The Parties may terminate this Agreement by mutual signed agreement. All Quotes in existence at the time of termination shall survive termination of this Agreement, unless a Party has terminated this Agreement in accordance with clause 19.3, in which event any Quotes will terminate simultaneously.
19.2 The Parties may terminate a Quote by mutual agreement, by notice if a Notice Period is specified in writing including by email.
19.3 Either party may terminate this Agreement and any affected Quote, where to the extent permitted by law, the other Party:
(a) has breached a material term of these Terms and has failed to remedy such breach within 10 Business Days of receiving notice to do so, subject to any other express right of termination;
(b) ceases operation without a successor; or
(c) seeks protection under any insolvency, bankruptcy, receivership, trust deed, creditors arrangement, administration, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days).
19.4 We may terminate the Terms by providing you with five business days’ notice, in our sole discretion, if you fail to pay an Invoice within 10 business days of the payment date.
19.5 Subject to clauses 19.1 to 19.4, you may terminate this Agreement or an Quote prior to the end of the Term or Services Term, as applicable, in which event you must pay the Fees for the period from the date of termination to when the Services Term would have expired had you not terminated prior to the end of the Services Term in full without any discount.
19.6 On termination of these Terms:
(a) you must cease to use the Services;
(b) you agree that any payments made are not refundable to you, and you are to pay (i) all invoices for Services rendered to you; and (ii) for those Services that have been rendered, but not invoiced, up to the effective date of termination;
(c) you must pay the Supplier for those Third-Party Services specifically ordered by the Supplier for you in anticipation of this Agreement continuing, where those orders cannot be cancelled without losses or expenses incurred by the Supplier;
(d) you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
19.7 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information, Data and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
19.8 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
19.9 On termination of these Terms, we may offer to provide you with dis-engagement support services at our then current rates, such dis-engagement support services to be agreed in writing by the Parties.
19.10 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
19.11 This clause will survive termination of these Terms.

20 Consumer Law, Limitation of Liability and Disclaimers
20.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services and goods by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms. Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services and goods provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
20.2 ACL Remedies: For major failures with the Service, you are entitled to cancel your Service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
20.3 Delay: If the provision of the Services depends upon or includes the provision of information, materials, consents or approvals by the Client of your Personnel or requires the cooperation, act or response of the Client of your Personnel, the Client will provide that information, cooperation and those materials, consents or approvals in a timely manner. If the Client breaches this obligation, Supplier will be entitled to an extension of time in respect any deadline or milestone to the extent of the delay caused by the Client and Supplier will have no liability for a failure to perform the Services caused by the Client.
20.4 Referral: On request by you, we may provide you with contact details of third-party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third-party advice or provision of services, and we disclaim all responsibility and liability for the third-party advice or provision of services, or failure to advise or provide services.
20.5 Insurance: We will effect and maintain business insurance regarding the Services. Please contact us if you would like information about our insurance policies and limits.
20.6 Each party will provide to the other party a certificate of currency for each insurance policy referred to in clause 20.5 on request.
20.7 Warranties: The Supplier does not warrant that the Services and Products will be error-free or will operate without interruption. To the extent permitted by law, we exclude all express and implied warranties not set out in this Agreement. We expressly disclaim all warranties not set out in this Agreement including but not limited to implied warranties of merchantability and fitness for a particular purpose and that the Services and products will achieve any particular outcome or result.
20.8 Liability: To the extent permitted by law, in any Contract Year, the Supplier’s liability in the aggregate for all Liabilities or Claims in relation to any Services, Products, Quote, these Terms or this Agreement (whether under statute, contract, negligence or other tort, indemnity, or otherwise) will be limited to the amount of the Fee paid by you to the Supplier in that Contract Year in respect of the relevant Services or Products giving rise to Liability.
20.9 The Supplier will not be liable to you for any Liability or Claim arising (whether under statute, contract, negligence or other tort, indemnity, or otherwise) in relation to any Consequential Loss, nor for any loss of profits, revenue, goodwill or reputation or business interruption.
20.10 To the extent permitted by law, either Party’s liability under or in connection with this Agreement will be reduced to the extent, if any, to which the other Party’s acts or omissions cause or contribute to its own loss or damage.
20.11 To the extent permitted by law, the Supplier will not be liable to you for any Liability or Claim caused or contributed by:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in the Terms which cannot be excluded by law;
(b) the loss, corruption, deletion or changes in part or whole of the Data;
(c) difficulties in receiving, sending, accessing or utilising Data at any time;
(d) any virus, fault or defect in any item in your System;
(e) you not following or implementing our recommendations.
20.12 Notwithstanding anything to the contrary in this Agreement, the Supplier will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of your Systems, caused by any third party, whether they are Third Parties or providers of Third-Party Services. Where we use or supply the Third-Party Services of vendors or Products from Third Parties, or their affiliates (Vendors) to provide Services and Products, the following applies:
(a) Any warranties in respect to such Vendor’s Products and Services shall be provided to you;
(b) You indemnify us, and hold us harmless, against any Claims made by Vendors against us arising from your breach of this Agreement, including Claims in respect to your acts or omissions constituting misuse or infringement of Vendors’ Software Licence or Products; and
(c) the Supplier will not be liable for any loss or damage to you caused by Vendors’ Products and Services.
20.13 In the event of any defect in any Hardware of a Vendor supplied by Supplier during the period of the Hardware Manufacturers Warranty, upon return to the Supplier of the Hardware, Supplier shall facilitate the processing of all Hardware Manufacturers Warranty claims in accordance with the Hardware Manufacturers Warranty policy as provided separately to Client in the Quote.
20.14 The Supplier will have no Liability for any Claims arising in relation to Third Party Services.
20.15 This clause will survive termination of these Terms.

21 Indemnity
21.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) our receipt and use of the Data; and
(b) any personal injury suffered by us or our Personnel when at the Site.
21.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
21.3 This clause will survive termination of these Terms.

22 General
22.1 Privacy: We agree to comply with any legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) that are applicable to us and any other applicable legislation or privacy guidelines and our privacy policy available on our website at [insert URL]. Where we must comply with the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), the Notifiable Data Breach process in Schedule 2 applies to both parties.
22.2 Any Data provided to us may be disclosed, if appropriate, to other entities in order to facilitate the purpose for which the information was collected. Such entities generally include:
(a) third party service providers for the purpose of enabling them to provide a service such as (but not limited to) payroll, superannuation administration, IT service providers, data storage, web-hosting and server providers, debt collectors, maintenance or problem-solving providers, marketing or advertising providers;
(b) any applicable or relevant regulator or third party for the purpose of legislative or contractual compliance and/or reporting;
(c) any related entities of the Supplier; or
(d) other entities if you have given express consent.
22.3 From time to time, these parties may reside outside Australia. The Supplier’s contracts with these parties generally include an obligation for them to comply with Australian privacy law. However, you acknowledge that, by agreeing to the disclosure of Personal Information to these entities outside of Australia, the Supplier will no longer be required to take reasonable steps to ensure the overseas recipient’s compliance with the Australian privacy law in relation to Personal Information and we will not be liable to you for any breach of the Australian privacy law by these overseas recipients. On this basis, you consent to such disclosure.
22.4 Publicity: You consent to us using advertising or publicly announcing that we have undertaken work for you.
22.5 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
22.6 GST: If and when applicable, GST payable on our Services will be set out on our Invoices. By accepting these Terms, you agree to pay us an amount equivalent to the GST imposed on these charges.
22.7 Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
22.8 Assignment: The Terms are personal to the Parties. Client must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the Supplier (such consent not to be unreasonably withheld). Supplier may assign, sub-contract or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the Client, but will remain liable for the acts and omissions of subcontractors as if they were acts and omissions of the Supplier.
22.9 Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable.
22.10 Force Majeure: We will not be liable for any delay or failure to perform our obligations under the Terms if such delay is due to any Force Majeure Event. We will provide you with prompt notice of the occurrence of any Force Majeure Event. If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate our agreement with you by giving you five business days’ notice in writing.
22.11 Notice: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the address in the Quote. Our address is set out in the Quote. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
22.12 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales, Australia, and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia.
22.13 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
22.14 This clause 22 will survive termination of these Terms.

23 Definitions
Unless defined in a Quote or a Schedule, the following words will mean:
23.1 Agreement means these Terms, Quotes, the Schedules, and any SOW;
23.2 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia;
23.3 Business Hours means 9.00am to 5pm on a Business Day;
23.4 Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
23.5 Commencement Date means the Quote Commencement Date of the first Quote under this Agreement;
23.6 Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, Client and supplier lists (including prospective Client and supplier information), ideas, concepts, know-how, Intellectual Property, technology, this Agreement and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”;
23.7 Consequential Loss means any indirect, special, consequential or exemplary loss or damage;
23.8 Contract Year means each 12-month period ending on an anniversary of the Commencement Date during the Term;
23.9 Data means all of the information, documents and other data, including any Personal Information, provided or uploaded by you or your Personnel to the Supplier or its Systems or otherwise accessed by the Supplier in providing the Services;
23.10 Electronic Data means ideas, notes and information used for communications, displays, distribution, interpretation or processing by electronic and electromechanical data processing systems or electronic equipment and includes programmes, software and other coded instructions for such equipment;
23.11 Force Majeure Event means an event which is beyond a Party’s reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person other than a subcontractor of a party, but in each case, only if and to the extent that the non-performing party is without fault in causing the event, and the event, or its effect could not have been prevented by reasonable precautions;
23.12 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations;
23.13 Hardware means any hardware provided by the Supplier to you as specified in the Quote and as described in more detail in the Services Schedule or SOW.
23.14 Hardware Manufacturers Warranty means the hardware manufacturers warranty in clause 20.13.
23.15 Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, Client names or internet domain names;
23.16 Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory;
23.17 Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
23.18 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
23.19 Personal Information has the meaning given in the Privacy Act 1988 (Cth).
23.20 Personnel means, in relation to a party, the officers, employees, contractors (including subcontractors) and agents of that party.
23.21 Products means any software or Hardware provided by the Supplier to you as specified in the Quote and as described in more detail in the Services Schedule or SOW.
23.22 Quote Commencement Date means the date the Supplier will commence providing the Services as specified in the relevant Quote.
23.23 Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth).
23.24 Services means the services, functions and responsibilities provided by the Supplier to you as specified in the Quote and as described in more detail in the Services Schedule or SOW;
23.25 Service Schedule means the Service Schedule located at [insert URL];
23.26 Services Term has the meaning given in the Quote.
23.27 Service Level means any service levels set out in the Services Schedule;
23.28 Site means the premises of the Client;
23.29 Software Licences means the licences for the Software Subscription Licenced Services set out in a Quote;
23.30 SOW means a statement of Work in the form of Annex 1;
23.31 Support Hours means the hours the Supplier will provide the Support Services as set out in the Services Schedule;
23.32 Support Services is set out in the Services Schedule;
23.33 System means all hardware, software, networks and other IT systems used by a Party or its Related Body Corporate from time to time, including a network;
23.34 Term has the meaning given in clause 2.1.
23.35 Third Party Services means any hardware, software, services, systems, applications or infrastructure provided by a third party that the Supplier uses to provide the Services (or part thereof) and any Software Subscription Licenced Services;
23.36 Usage Policy means the Supplier’s Usage Policy in respect of its provision of hosting Services, as outlined in Schedule 1.

 

Contact details:
CDT Phoenix Pty Ltd t/as KAOS Data ABN 20 160 839 136
PO Box 362, Round Corner, NSW, Australia, NSW
https://www.kaosdata.com/contact-us/

 

Schedule 1 – Usage Policy

1 Introduction
1.1 This Schedule outlines the Usage Policy by which the Supplier provides Service to Client.
1.2 This Schedule is designed to ensure that:
(a) the use of the Services by Client and all other Clients and users is maintained at an optimum level by mitigating and minimising disruptions and outages caused by use of such Services outside the terms of this Agreement; and
(b) the Client understands its obligations to comply with all laws which apply to content which we may host or which may be transmitted over telecommunications networks.


2 Responsibilities of Client
2.1 The Client and its Authorised Users must:
(a) use the Services in a manner which complies with all Laws;
(b) provide the Supplier with any changes to Authorised User access and permissions. The Supplier won’t be liable for anly loss or damage arising from Client failing to provide the Supplier with notice of any such changes.
(c) be solely responsible for disseminating or posting content through the Services or publishing on the web pages of Client’s site, including obtaining legal permission to use any works included in such content and/or web pages; and
(d) use the Services in a manner which does not interfere with, jeopardise or disrupt the provision of the Services.


3 Unacceptable Usage
3.1 The Client and its Authorised Users must not use the Services:
(a) to violate anyone’s legal rights including Intellectual Property rights in any jurisdiction;
(b) in relation to crimes such as theft and fraud;
(c) to publish or transmit defamatory, obscene, threatening, abusive or offensive material or content;
(d) to facilitate or engage in any activity which is prohibited under the Spam Act 2003 (Cth), any other applicable legislation and regulations, or any policies or regulations of the Australian Communications and Media Authority;
(e) to create or propagate any Harmful Code;
(f) to facilitate or engage in ‘hacking’, including gaining illegal or unauthorised access to any computers, accounts or networks accessible through the internet;
(g) to misrepresent transmission information by forging, deleting or altering message headers, return mail information and/or internet protocol addresses in order to conceal or misidentify the origin of a message;
(h) to carry out security breaches or disruptions of network communication. Security breaches include, but are not limited to, accessing data of which Client and its Authorised Users are not an intended recipient or logging into a server or account that Client and its Authorised Users are not expressly authorised to access or corrupt any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing, ping floods, packet spoofing, denial of service, scraping and forged routing information for malicious purposes;
(i) to execute any form of network monitoring which will intercept data not intended for Client;
(j) to circumvent user authentication or security of any of the Supplier’s hosts, networks or accounts or those of the Supplier’s Clients or the Suppliers;
(k) to interfere with or denying service to anyone;
(l) to send any form of harassment via email, or any other form of messaging, whether through the language, frequency or size of messages; and
(m) in breach of any person’s privacy (such as by way of identity theft or phishing).

Schedule 2 – Notifiable Data Breach Process

Data Breach Incidents: To the extent the Notifiable Data Breaches scheme under Part IIIC of the Privacy Act 1988 applies to Supplier:
a) if Supplier becomes aware of a Data Incident, Supplier will:
(i) notify Client of the Data Incident by telephone and email;
(ii) retain system logs and other information that may be relevant to the Data Incident, or to assessing the cause or impact of the Data Incident;
(iii) provide all information Supplier deems relevant to the Data Incident reasonably requested by Client for the purpose of investigating the Data Incident; and
(iv) immediately take all action reasonably necessary to:
(i) mitigate the impact of the Data Incident (including to restore or recover any lost data); and
(ii) prevent any repeat of the Data Incident in the future.
b) If Supplier suspects that a Data Incident has occurred, it will, within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred.
c) Where Client suspects that a Data Incident has occurred, Supplier will, within 30 days of receiving notice from Client of its suspicion, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred, the costs of such assessment must be paid by Client.
d) If Supplier believes a Data Incident has occurred it will provide notice to the OAIC of such Data Incident and it will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Data Incident.
This Schedule is subject to our Privacy Policy.

Data Incident means any actual or Supplier suspected:
(I) breach of Supplier’s obligations relating to protection of Personal Information under this Agreement;
(II) unauthorised access to, or unauthorised disclosure of, any Personal Information; or
(III) loss of Personal Information, including where Personal Information is damaged or corrupted so that it becomes unusable,
where, as determined by Supplier, the access or disclosure is likely to result in serious harm to one or more individuals and Supplier has not been able to prevent the likely risk of serious harm with remedial action.

 

Annex 1 – SOW

STATEMENT OF WORK [Insert Project Name]
BETWEEN:
Supplier CDT Phoenix Pty Ltd t/as KAOS Data ABN 20 160 839 136
(the Supplier)
Address 24 Hyde Avenue
Glenhaven, 2156, NSW

Project Manager [Enter the Supplier’s Project Manager]
AND:
Client [INSERT] ABN [INSERT]
Address [Enter Client address details]
Project Manager [Enter Client’s Project Manager]

Project Description [Enter brief description of the project]
Services [An overview of any Services to be provided]
Service Specification [Detailed specification of any services to be provided]
Contractual Terms [Include in here date and contract number of the governing agreement]
Intellectual Property [Insert here the details of the Client’s requirement for Development Services, if any. Insert here the details of which Party or Parties is to own the Intellectual Property Rights in any New Materials which are created as a result of the work under the SOW (including where such ownership shall be joint or otherwise and where applicable any license to use any Pre-Existing Material.]
Data Protection [insert here whether the Services will involve processing of personal information]
Total Fee [This section is to be populated with the total SOW price. Also include in this section whether this is a time & materials or a fixed price assignment]. This total price will exclude GST]
Expenses [Insert]
Payment Milestones [Insert here the project payment milestones. Include here Detail of Deliverable or time scale for T&M projects]
[Where Supplier has completed its obligations in respect to milestone Deliverables that are subject to Acceptance which triggers Payment Milestones, subject to the delivery and or acceptance of deliverables supplied by third parties, and the deliverables of such third parties are not delivered, delivered late or do not pass applicable acceptance tests by the Delivery Date or Acceptance Date for the relevant Deliverables of the Supplier through no act or omission of Supplier, the Payment Milestone for the affected Deliverables will be deemed to have been triggered 10 Business Days after the scheduled: (i) acceptance date; or (ii) delivery date, as applicable, for the deliverables of the third party and Client must pay Supplier the full price for such Deliverables, [unless state otherwise below].

Project Plan (include Delivery Dates, Acceptance Dates, Project Milestones etc.) [Insert/attach a high level chart/draft timetable including Delivery Dates, Acceptance/Reporting Dates, Project Milestones etc]
Effective Date [Date of commencement of work]
Target Delivery Date [required delivery date for completion]
Delivery Address [Address for where the services are being carried out]
Timescale for submission of Acceptance Plan for Client’s approval [Date when milestone/work should be completed prior to & outline of timetable for Acceptance (may be same date). If this is not available at the outset, a date by which the Acceptance]
Timescale for submission of Acceptance Criteria for Client’s approval [Date when Acceptance criteria should be completed prior to & outline of timetable for Acceptance (may be same date). If this is not available at the outset, a date by which the Acceptance/Delivery timetable will be produced should be entered here]
Timescale for submission of Acceptance Tests for Client’s approval [Date when acceptance tests should be completed prior to & outline of timetable for Acceptance (may be same date). If this is not available at the outset, a date by which the Acceptance/Delivery timetable will be produced should be entered here]
Acceptance Date [Date when Acceptance should be completed]
Acceptance Plan [Insert project/Programme acceptance plan, including all key acceptance milestones]
Acceptance Criteria [List of criteria for acceptance criteria; not required for T&M projects]
Acceptance Tests [where applicable include here listing of relevant acceptance test/s]
Services Specification
[Detailed specification of any services to be provided]
Client Obligations [insert here the Client specific obligations related strictly to the Project/programme]
Assumptions [Insert here any project specific assumptions]
Materials [insert here a listing of Materials (if applicable)]

the Supplier’s Personnel
Name Skill Level Currency Daily Rate Commitment
(%) # Days Sub-total
100%
Risk Contingency [In case of fixed price assignments, the Supplier to disclose contingency level and underlying assumption] Sub-Total
Grand Total
SOW Attachments [List supporting documentation, e.g. Client the Supplier Expense Policy, detailed project plan; etc.]

Signed on behalf of CDT Phoenix Pty Ltd t/as KAOS Data ABN 20 160 839 136 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

Signature

Signature

Name (PRINT)

Name (PRINT)

Title

Title

Date Date

COMPANY / CORPORATE TRUSTEE
Signed on behalf of [Company Name] ACN [ACN] [ATF [Trust Name] ABN [Trust ABN]] [T/A [Business name] ABN [ABN]] in accordance with section 127 of the Corporations Act 2001 (Cth) by:

Signature

Signature

Name (PRINT)

Name (PRINT)

Title

Title

Date Date
COMPANY REPRESENTATIVE
Executed as an agreement for and on behalf of [Company Name] ACN [ACN] [T/A [Business name] ABN [ABN]] by its duly authorised representative:

Signature of Representative

Name of Representative (PRINT)

Date

INDIVIDUAL / SOLE TRADER / INDIVIDUAL TRUSTEE:

Signed by [Individual’s Name] [ATF [Trust name] ABN [Trust ABN] [T/A [Business name] ABN [ABN]]:

Signature

Date