Client Service Agreement

General conditions

Interpretations

The following definitions apply in this document:

• ABN means Australian Business Number.
• ACN means Australian Company Number.
• Agreement means this Technology Services Agreement.
• Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City in the Legal Location.
• Confidential Information has the meaning set out in the Particulars but does not include information that NGNY can establish:
  • was in the public domain at the time it was given to NGNY;
  • became part of the public domain, without NGNY’s involvement in any way, after being given to NGNY;
  • was in NGNY's possession when it was given to NGNY, without having been acquired (directly or indirectly) from the Company; or
  • was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
• Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure and includes each of the following:
  • Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
  • Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
  • The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
  • Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
• Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
• Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
• General Conditions means the provisions set out in the section of this Agreement entitled “General Conditions”.
• GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Legal Location means the legal location set out in the Particulars.
• Particulars means the provisions set out in the section of this Agreement entitled “Particulars”.
• Project means the Project Services provided by NGNY pursuant to a Project Schedule.
• Special Conditions means the provisions set out in, attached to or made by reference to this Agreement entitled “Special Conditions”.
• Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Technical Services means the “Technical Services” as described in the Particulars.

Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

• The singular includes the plural and the opposite also applies.
• If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
• A reference to a clause refers to clauses in this Agreement.
• A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
• Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
• A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
• A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
• A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
• A reference to dollars or $ is to an amount in Australian currency.

Commencement

This Agreement commences on the Commencement Date. Where the Commencement Date pre-dates the Agreement Date the Parties expressly acknowledge that the terms and conditions of this Agreement, to the extent reasonably possible, commenced on the Commencement Date, and this Agreement is the formalisation of an existing undocumented agreement between the Parties.

Relationship

• NGNY warrants that it is an independent service provider to the Client.
• NGNY will not:
  • hold itself out as an agent of the Client; or
  • incur obligations or liabilities on behalf of the Client unless the Client provides written permission.

NGNY’S KEY OBLIGATIONS

NGNY will:

• ensure that the Services are complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties;
• ensure that the Services are provided in accordance with the standards outlined in this Agreement;
• establish and maintain clear channels of communication at all times with the Client, and promptly answer any questions asked by the Client;
• comply with all the relevant laws and industry standards in respect of providing the Services; and
• act in accordance with the Client’s reasonable directions while providing the Services.

CLIENT’s key obligations

The Client will:

• ensure that NGNY has access to all the:
  • resources, personnel, electronic systems and premises required to provide the Services; and
  • all facilities and materials and information reasonably requested for NGNY to do its job;
• establish and maintain clear channels of communication at all times with NGNY;
• promptly provide NGNY with directions, instructions or information which are requested by NGNY and which are reasonably required to assist NGNY in the performance of its obligations under this document; and
• promptly provide NGNY with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services.

Invoicing & payment

• If NGNY does not provide a valid Tax Invoice (or does not supply the Client with its ABN) the Client may withhold from any payment made to NGNY the amounts required for the Client to comply with the Taxation Administration Act 1953 (Cth) and related legislation.
• All payments by the Client or other consideration for any supply by NGNY to the Client under or in connection with this document include any GST for which NGNY is liable on that supply, and NGNY (and not the Client) is responsible for payment of that GST.
• The Client will be entitled to set off any amount owed to NGNY against any amount payable by NGNY to the Client.
• If the Client fails to pay an amount due under this Agreement by a due date, NGNY may charge interest on the overdue amount at no more than 10% per annum compounding daily.

CONFIDENTIALITY

NGNY must not:

• use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
• disclose any of the Confidential Information except in accordance with clauses 2 or 7.3.

NGNY may disclose Confidential Information to its Personnel if:

• the disclosure is required to enable NGNY to perform its obligations or to exercise its rights under this document; and
• prior to disclosure, NGNY informs the person of NGNY’s obligations in relation to the Confidential Information under this document.

Subject to clause 4, NGNY may disclose Confidential Information that NGNY is required to disclose:

• by law or by order of any court or tribunal of competent jurisdiction; or
• by any Government Agency, stock exchange or other regulatory body.

If NGNY is required to make a disclosure under clause 3, NGNY must:

• to the extent possible, notify the Client immediately it anticipates that it may be required to disclose any of the Confidential Information; and
• only disclose Confidential Information to the extent necessary to comply.

The Client and NGNY must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.

FORCE MAJEURE

If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:

• Specify the obligations and the extent to which it cannot perform those obligations;
• Fully describe the event of Force Majeure;
• Estimate the time during which the Force Majeure will continue; and
• Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
• Following a notice of Force Majeure in accordance with clause 1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
• The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
• The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
• The term of this Agreement will not be extended by the period of Force Majeure.

DISPUTE RESOLUTION

If any dispute arises between the Client and NGNY in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

• includes or is accompanied by full and detailed particulars of the Dispute; and
• is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
• Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and NGNY must meet and seek to resolve the Dispute.
• Subject to clause 4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
• Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
• Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

Liability & indemnity

• In no circumstances will NGNY be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Client’s access to, or use of, or inability to use the Services, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not NGNY knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
• Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, NGNY and its related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, liability of NGNY for breach of any implied warranty or condition that cannot be excluded is restricted, at NGNY’s option to:
  • The re-supply of services or payment of the cost of re-supply of services; or
  • The replacement or repair of goods or payment of the cost of replacement or repair.

Amendment and assignment

• This Agreement can only be amended, supplemented, replaced or novated by another agreement executed by the parties.
• The parties to this Agreement may only assign or otherwise create an interest in their rights under this document with the written consent of each other party.

ELECTRONIC COMMUNICATION & Notices

• The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
• The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.
• A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
• Notices must be sent to the parties’ contact details as specified in item A of the Particulars.

General

• To the extent that the Particulars are inconsistent with the General Conditions, the terms of the Particulars will prevail. To the extent that the Special Conditions are inconsistent with the Particulars, the Special Conditions will prevail.
• Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
• The relationship of the parties to this Agreement does not form a joint venture or partnership.
• No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
• Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
• Governing Law. This Agreement is governed by the laws of the state set out in the Legal Location.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
• Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
• If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
• This Agreement may be executed in any number of counterparts.  All counterparts together will be taken to constitute one instrument.
• Time is of the essence in this Agreement.
• Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

 

END GENERAL CONDITIONS