Master Services Agreement
Ravel Solutions ABN 79 618 752 171 and Business Experience Consulting Pty Ltd ABN 62 616 298 723 in partnership are known as The CRM Team (The CRM Team) provides cloud software strategy and solutions, and other digital consultancy services. This Master Services Agreement governs all services provided by The CRM Team to the Client.
1.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Agreement means this Master Services Agreement.
(d) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(e) Change Request means a written notice from the Client requesting a change to the Deliverables subject to the Scope, or any additional work not specified in a Scope or otherwise previously agreed to be provided by The CRM Team.
(f) Client means the client as identified on any Scope or any “Parties” section to this Agreement.
(g) Client IP means all Intellectual Property of the Client contained in any information provided to The CRM Team in the course of providing the Work.
(h) Commencement Date means the earlier of:
i The date stated as the Commencement Date in a Scope, which in default shall be the date the Scope is accepted by the Client; or
ii The date when The CRM Team first provides Services for the Client.
(i) Confidential Information has the meaning set out in clause 13 but does not include information that The CRM Team can establish:
i Was in the public domain at the time it was given to The CRM Team;
ii Became part of the public domain, without The CRM Team’ involvement in any way, after being given to The CRM Team;
iii Was in The CRM Team’ possession when it was given to the The CRM Team, without having been acquired (directly or indirectly) from the Client; or
iv Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(j) Deliverable means any deliverable supplied by The CRM Team subject to this Scope.
(k) Expenses has the meaning set out in clause 11.6.
(l) Fee means a fee charged by The CRM Team for the provision of any Service.
(m) Fixed Fee means any set Fee that applies to a particular set of Work.
(n) GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(o) Intellectual Property means any intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations.
(p) 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.
(q) New IP means Any Intellectual Property generated by The CRM Team for the Client in the process of providing the Work, but excludes any updates or further development of the Proprietary Technology.
(r) Privacy Act means the Privacy Act 1988 (Cth).
(t) Proprietary Technology means the Intellectual Property Rights The CRM Team holds in the underlying code, or other software product that The CRM Team may make available to the Client as part of the Services, that forms part of The CRM Team IP, and includes any updates or further development made during the provision of Work.
(u) Rates Card means The CRM Team’ rates card that describes the standard pricing of Services and/or Deliverables.
(v) The CRM Team means The CRM Team ABN 79 618 752 171.
(w) The CRM Team IP means all Intellectual Property of The CRM Team incorporated in the Work, and includes (without limitation) Proprietary Technology.
(x) Scope means any scope, project specification, SOW, proposal or quote prepared by The CRM Team, and accepted by the Client in writing.
(y) Services means the services provided by The CRM Team subject to this Agreement.
(z) Retainer Fee means a Fee charged by The CRM Team to the Client on a periodical basis.
(aa) SOW means a statement of work.
(bb) Special Conditions means any particular arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.
(cc) Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(dd) Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Work, which may be attached to (without limitation) code, web-design templates, photographs; written works; visual and artistic design; video and film; and audio recordings.
(ee) Work means the Services and Deliverables subject to the Scope
2 Agreement and Commencement
2.1 The relationship between the parties shall be governed by the terms of this Agreement until terminated under the provisions of this Agreement.
2.2 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.
2.3 In order to accept the terms of a Scope the Client must accept the terms of this Agreement. If the Client does not accept the terms of this Agreement, it must not accept a Scope.
3.1 The CRM Team may provide the following services (Services) to the Client:
(a) Digital Strategy and Implementation;
(b) Content Management Systems (CMS);
(c) Customer Relationship Management implementation services (CRM);
(d) Cloud-Based Solutions;
(e) Application Development
(f) Performance Tuning & Scalability;
(g) API Integration;
(h) Technical Advice;
(i) Requirements & Scoping;
(j) Software and Web-Solution Project Management;
(k) Performance Optimisation;
(l) Maintenance & Support;
(m) Quality assurance; and
(n) Such other services as may be agreed between the parties from time-to-time.
3.2 Any SOW, project specification, proposal or quote prepared by The CRM Team and accepted by the Client (whether orally or in writing) sets out the scope (Scope) of the Services and Deliverables the Client has requested (Work). The Work will not extend beyond that scope unless The CRM Team and the Client agree in writing.
3.3 The CRM Team will provide the following Work to the Client:
(a) The Services; and
(b) Such other services and Deliverables as described in a Scope as may be agreed from time to time.
3.4 In some circumstances the parties may enter into additional agreements to govern particular aspects of the Work, these may include (without limitation) service level agreements to set quality and service standards for the Work.
3.5 Unless agreed otherwise, any additional agreement pursuant to clause 3.4 shall constitute Special Conditions for the purposes of this Agreement.
3.6 Exclusivity. Unless agreed otherwise, while this Agreement is in effect the Client shall not engage any third party to provide services in Australia that compete with or are similar to the services provided by The CRM Team.
4 Acceptance testing
4.1 If specified in the Scope, the Client may assess the Work to determine if it was properly provided by The CRM Team or to determine if they contain any defects.
4.2 The Client may notify any defects or problems with the Work by providing The CRM Team with written notice giving The CRM Team a reasonable amount of time to rectify the alleged issued (which in default shall not be less than 10 business days). The CRM Team shall rectify any bona fide defects specified in the written notice in a prompt and professional manner.
4.3 Once the Client has accepted Work any Fees contingent on providing that Work (i.e. a milestone) become payable.
5 Change requests
5.1 No Change Request from the Client is valid until accepted in writing by The CRM Team.
5.2 Unless agreed otherwise in writing, The CRM Team’ usual rates (as specified in the Scope or otherwise provided to the Client) shall apply in respect of any Change Request undertaken by The CRM Team.
5.3 For the avoidance of doubt, the parties may amend the Scope, or enter a new Scope by mutual agreement in response to a Change Request.
6.1 The CRM Team warrants that it is an independent service provider to the Client and that it is not an employee or partner of the Client in any way.
6.2 The CRM Team will not:
(a) Hold itself out as an agent of the Client, except to the extent necessary to carry out the Work; or
(b) Incur obligations or liabilities on behalf of the Client unless the Client provides written permission.
7 Key Obligations
7.1 The CRM Team will:
(a) Ensure that the Work is complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties;
(b) Ensure that the Work is provided in accordance with the standards outlined in the Scope;
(c) Establish and maintain clear channels of communication at all times with the Client, and promptly answer any questions asked by the Client;
(d) Comply with all the relevant laws and industry standards in respect of providing the Work; and
(e) Act in accordance with the Client’s reasonable directions while providing the Work.
8 The CLIENT’s Key Obligations
8.1 The Client will:
(a) Ensure that The CRM Team has access to all the:
i Resources, personnel, electronic systems and premises required to provide the Work; and
ii All facilities and materials and information reasonably requested by The CRM Team to provide the Work;
(b) Establish and maintain clear channels of communication at all times with The CRM Team;
(c) Purchase or obtain their own licenses for third party software, graphics, videos and content not authored or invented by either the Client or Ravel. Ravel bears no responsibility to obtain these licenses except wherein the license is specifically included with the description of the Statement of Work.
(d) Promptly provide clear, complete and timely instructions and all necessary information and documents to enable The CRM Team to provide the Work effectively.
(e) The Client must immediately advise The CRM Team, if The CRM Team have misunderstood the Client or made incorrect assumptions.
(f) Promptly provide The CRM Team with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services.
9.1 The CRM Team may engage such third-parties as are necessary to provide the Work without the Client’s approval.
9.2 The CRM Team shall be responsible for ensuring that all third-party subcontractors comply with The CRM Team’ obligations under this Agreement including those of Confidentiality.
10 Third Party Services
10.1 Disclaimer of Third Party Services & Information
(a) The Client acknowledges that any Work that The CRM Team provides or contributes to as part of the Services may be dependent on third-party services, including but not limited to:
i Web hosting services;
ii CRM services;
iii CMS services;
iv Social media platforms;
v Banks, credit card providers and merchant gateway providers;
vi Telecommunications services;
vii Email services; and
viii Analytics services.
(b) The Client agrees that the The CRM Team shall not be responsible or liable in any way for:
i Interruptions to the availability of Work due to third-party services; or
ii Information contained on any linked third party website.
11 Fees & Payment
11.1 Ravel will charge the Client such fees as specified in the SOW (Fees) which may include:
(a) A fixed fee;
(b) A retainer fee; and/or
(c) Payment terms in accordance with a specified payment schedule, which will in default be on a time-cost basis (i.e. hourly or daily rates);
11.2 Where a fixed fee applies the Client agrees:
(a) To pay the Fees in accordance with the SOW and any Special Conditions, which in default shall be:
i 50% of the fixed fee upon commencement of the provision of the Services; and
ii 50% of the fixed fee upon completion of provision of the Services;
(b) Make all payments in accordance with a payment schedule in the SOW;
(c) The fixed fee only covers work done within the scope of the SOW.
11.3 Where a retainer fee applies the Client agrees:
(a) To pay the retainer fee in advance at such periods as specified in the SOW (Retainer Period), which in default shall be monthly;
(b) The retainer fee only covers work done within the SOW;
(c) The Client must provide instructions (and all required information and other documents) to Ravel within the timeframe(s) specified in the SOW; and
(d) The retainer fee does not cover any work done outside of (a) to (c) (inclusive) above.
11.4 In default all pricing shall be in accordance with a specified payment schedule within the proposal or SOW. Ravel will provide a payment schedule on request, if one has not already provided to the Client.
11.5 Ravel reserves the right to not undertake any work falling outside of 11.1 to 11.3 above without additional payment or an agreement by the Client to pay Ravel at in accordance with the rates card. Ravel will advise the Client as soon as reasonably practicable where work falls outside of these parameters and give the Client an estimate of the additional costs/rates.
11.6 If Ravel obtains any goods or services for the Services from third parties outside the SOW, the Client agrees to pay these at cost (Expenses). Ravel shall obtain approval from the Client prior to incurring the cost of any Expenses.
11.7 The Client acknowledges and accepts that Ravel may cease providing the Services in the event the Client fails to pay Fees by the due date for payment. Ravel shall not be liable for any loss resulting from the cessation of Services due to non-payment of Fees.
11.8 Unless otherwise stated, fees are exclusive of GST, which is payable in addition at the prevailing rate.
11.9 Invoicing & Payment
(a) The CRM Team shall provide a Tax Invoice to the Client for any paid Work provided.
(b) The Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 5 Business Days from the date of the invoice. Payment shall be by electronic transfer into The CRM Team’ nominated bank account unless otherwise agreed between the Parties.
11.10 Disputed Tax Invoice
(a) Should the Client dispute any charge on a Tax Invoice, the Client must notify The CRM Team of the disputed item within 5 business days of the date of the Tax Invoice.
(b) The Client must pay the amount of the Tax Invoice not in dispute within the stated timeframe.
(c) Failure by the Client to notify The CRM Team of a disputed Tax Invoice within 10 business days shall be deemed acceptance by the Client of the entire Tax Invoice.
The CRM Team may charge interest at a rate of 4% above the Reserve Bank of Australia cash rate target, per annum on overdue Tax Invoices.
11.12 Late Payment.
(a) If the Client does not pay the full Fees as required, The CRM Team may suspend all Work.
(b) If Fees are not brought out of arrears within 28 days of becoming overdue, The CRM Team may cease providing the Work without notice and end this Agreement.
(c) The Client agrees that The CRM Team shall not be responsible or liable in any way for:
i Interruptions to the availability of Work in the event of (a);
ii Loss of Client IP in the event of (b).
12 Intellectual Property
12.1 The CRM Team IP
(a) For the purposes of this clause The CRM Team IP means all Intellectual Property of The CRM Team incorporated in the Work.
(b) The Client acknowledges that The CRM Team retains ownership of all of The CRM Team IP.
(c) The CRM Team grants the Client a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the The CRM Team IP, for the purposes of its day to day business, to the extent that the The CRM Team IP is contained within the Work.
12.2 Client IP
(a) For the purposes of this clause Client IP means all Intellectual Property of the Client contained in any information provided to The CRM Team in the course of providing the Work.
(b) The CRM Team acknowledges that the Client retains ownership of all of Client IP.
(c) The Client grants The CRM Team a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP to the extent that it is contained within the Work.
(d) The Client grants The CRM Team a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP/Client’s name and logo in The CRM Team marketing or tender documents, unless the Client directs The CRM Team not to.
12.3 Third-Party IP
(a) For the purposes of this clause Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Work, which may be attached to (without limitation) code, web-design templates, photographs; written works; visual and artistic design; video and film; and audio recordings.
(b) The CRM Team shall grant to the Client such rights as the owner of the Third-Party IP permits The CRM Team to grant the Client.
12.4 New IP
(a) For the purposes of this clause New IP means any Intellectual Property generated by The CRM Team for the Client in the process of providing the Work.
(b) New IP is owned absolutely by the Client and vests in the Client immediately.
(c) To the extent that The CRM Team may at any time acquire any right, title or interest in the New IP, The CRM Team, by this document, agrees to assign to the Client all such rights, title and interest in the New IP.
(d) Unless otherwise agreed in writing by the parties, and notwithstanding any provision of this Agreement to the Contrary, the Client grants The CRM Team a non-exclusive, perpetual, non-transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the New IP to the extent that it is contained within the Work.
13.1 Confidential Information means any written or verbal information that:
(a) Are login details, including user names, email addresses and passwords;
(b) Is about each party’s business or affairs;
(c) Is about the conduct of each party under this Agreement and the during the term of this Agreement;
(d) A party informs the other party that it considers it confidential and/or proprietary;
(e) A party would reasonably consider to be confidential in the circumstances; and
(f) Is personal information within the meaning of the Privacy Act; but
(g) does not include information that a party can establish:
i Was in the public domain at the time it was given to that party;
ii Became part of the public domain, without that party’s involvement in any way, after being given to the party;
iii Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
iv Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
13.2 A party shall not:
(a) Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
(b) Disclose any of the Confidential Information except in accordance with clause 13.3.
13.3 Subject to clause 13.4, a Party may disclose Confidential Information that a Party is required to disclose:
(a) By law or by order of any court or tribunal of competent jurisdiction; or
(b) By any Government Agency, stock exchange or other regulatory body.
13.4 If a party is required to make a disclosure under clause 13.3, that party must:
(a) To the extent possible, notify the other party immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
(b) Only disclose Confidential Information to the extent necessary to comply.
13.5 Each party must assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
14 PRIVACY AND DIRECT MARKETING
14.4 Where the Client provides The CRM Team with the personal information of its customers, employees, contractors or other individuals, the Client warrants that it is duly authorised to do so.
14.5 The Client consents to The CRM Team’ use of the Client’s contact details to maintain an ongoing professional relationship with the Client and any associated entity, including in order to provide updates, invitations and other communications The CRM Team consider may interest the Client.
15 Liability & Indemnity
15.1 Notwithstanding loss or damage caused by a sub-contractor, Ravel accepts no responsibility for any loss or damage sustained by the Client or a third party arising directly or indirectly from any act or omission (whether negligent or otherwise) of a third-party service provider to the Client.
15.2 The Client agrees to indemnify and hold harmless Ravel against all liability, loss, claims, fines, penalties, and damage arising out of or in connection with the services and products supplied pursuant to this Agreement, caused by the Client.
15.3 The Client agrees to indemnify and hold Ravel harmless against all liability, loss, claims, fines, penalties, and damage arising out of or in connection with illegal access of online accounts, hacking, cracking of passwords. Ravel strongly recommends that the Client change or update their login details or passwords to accounts supplied to Ravel after the completion of the services detailed in the SOW.
15.4 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, The CRM Team and its related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, liability of The CRM Team for breach of any implied warranty or condition that cannot be excluded is restricted, at The CRM Team’ option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
16 Dispute Resolution
16.1 If any dispute arises between the Client and The CRM Team in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
(a) Includes or is accompanied by full and detailed particulars of the Dispute; and
(b) Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
16.2 Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and The CRM Team must meet and seek to resolve the Dispute.
16.3 Subject to clause 16.4, 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.
16.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
16.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
17.1 This Agreement shall end when the Services and/or Deliverables have been completed by The CRM Team in the reasonable opinion of the Client, or at any time agreed by the parties in writing.
17.2 Without affecting any other rights or obligations of the parties, either party may terminate this Agreement by giving 30 days’ written notice.
17.3 Where a party is in breach of this Agreement, the other party may provide the breaching party a notice to remedy the breach within a reasonable time, which shall not be less than 10 business days. Should the breach remain unremedied then the other party may terminate this contract by written notice.
17.4 Should the Client terminate this Agreement without cause, it shall remain liable to pay any Fees that it had agreed to pay The CRM Team for all active and/or delivered Projects.
18 Modification of Terms
18.1 The terms of this Agreement may be updated by The CRM Team from time-to-time.
18.2 Where The CRM Team modifies the terms, it will provide the Client with 30 days’ written notice, and the Client will be required to accept the modified terms in order to continue using the Services.
18.3 If the Client does not accept the modified terms, it must notify The CRM Team and terminate this Agreement.
19 Electronic Communication, Amendment & Assignment
19.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
19.2 The Client can direct notices, enquiries, complaints and so forth to The CRM Team as set out in this Agreement. The CRM Team will notify the Client of a change of details from time-to-time.
19.3 The CRM Team will send the Client notices and other correspondence to the details that the Client submits to The CRM Team, or that the Client notifies The CRM Team from time-to-time. It is the Client’s responsibility to update its contact details as they change.
19.4 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.
19.5 Notices must be sent to the parties’ most recent known contact details.
19.6 The Client may not assign or otherwise create an interest in this Agreement.
19.7 The CRM Team may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Client.
19.8 Notices to The CRM Team must be sent to:
The CRM Team
20/52-60 Garden Drive,
20.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
20.2 Prevalence. To the extent that the Scope is inconsistent with the terms of this Agreement, the terms of the Scope will prevail. To the extent that the Special Conditions are inconsistent with any other term of this Agreement, the Special Conditions will prevail.
20.3 Disclaimer. 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.
20.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
20.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
20.6 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.
20.7 Governing Law. This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
20.8 Severability. 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.
20.9 Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this Agreement.
(d) A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) 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).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) 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.
(i) A reference to dollars or $ is to an amount in Australian currency unless otherwise explicitly specified.
END MASTER SERVICES AGREEMENT