Master Of Service Agreement

This Master Services Agreement including any Statement of Work (Agreement) is between Rainstorm Studio Pty Ltd (ABN 22 611 888 914) (referred to as we, Rainstorm or Rainstorm Studio) and the each individual or entity agreeing to this Agreement (referred to as you or your) collectively referred to as the Parties and each a Party. We are a supplier of website design, hosting, software development and related services. You wish to use our services and we agree to supply the services in accordance with the terms of this Agreement.

Acceptance
1. This Agreement forms a binding legal agreement between the Parties. By using the Services, you agree to comply with and be legally bound by the terms of this Agreement. Please read this Agreement carefully. If you have any questions, you should contact Rainstorm using the contact details on our Website ( Site).
2. You acknowledge and agree to this Agreement by: (i) ticking ‘I Agree’; (ii) agreeing in reply to the email Rainstorm sends to you attaching this Agreement; (iii) accessing or using the Site or Services; or (iv) making part or full payment for the Services. If you do not agree to this Agreement, you should cease accessing or using the Services and Site immediately. If you are agreeing to this Agreement on behalf of an entity, including but not limited to a company or other organisation, you represent and warrant that you have the power and authority to enter into agreements and bind such entity and act on behalf of any person who uses the Services (each a User, collectively referred to as Users).
3. You agree the Services will only be used by Users who are your employees, contractors or authorised agents acting in the ordinary course of business and directly working for or managed by you. You must ensure that each User using or accessing the Services does so in accordance with the terms of this Agreement.
4. Some Services may be subject to additional terms. Where applicable, such terms will be displayed prior to use of that Service or otherwise notified to you.
5. Rainstorm reserves the right to make changes to this Agreement at any time, effective upon publishing the modified Agreement on the Site. Rainstorm endeavours to communicate these changes to you via email. It is your obligation to ensure that you (and each User where applicable) has read, understood and agreed to the most recent Agreement available on the Site.
6. Using the Site or Services may be prohibited or restricted in certain countries. If you use the Services outside of Australia, you are responsible for complying with the laws and regulations of the country from which you access or use the Services.
Services
1. We agree to provide you with the Services in accordance with the terms and conditions of this Agreement.
2. By accepting a Proposal, a Statement of Work, or otherwise accepting commencement of the Services, the Client agrees to these Terms.
3. We will provide the Services within a reasonable time following payment of your first invoice until all Deliverables set out in the Statement of Work or Proposal have been provided.
4. We reserve the right to engage subcontractors to perform any part of the Services.
5. When we provide all or any part of our Services using a third party platform, we will promptly notify the platform operators if an issue on the platform arises which affects our ability to continue to provide the Services to you. While we endeavour to work with the third party platform operators to rectify the issues on their platform (by notifying them and coordinating rectification of the issues), we are not responsible for the issues and/or any undue delay by third party platform operators in rectifying the issues. Upon our request, you agree to reimburse us the reasonable costs we incur in working with the third party platform operators to rectify the issue.
6. Third parties who are not our employees or direct contractors will be your responsibility. We are not responsible for any services provided by third parties.
7. If you request any Variation, we will, within 14 days of receipt of notice for Variation, either accept or reject the Variation and, if we accept the Variation, we will notify you of the Variation Fees. You must approve the Variation Fee before we commence any work on the Variation.
Statements of work
1. Details of the Services, including a description of any Deliverables, will be agreed from time to time between the Parties in separate Statements of Work.
2. If we agree to the terms of a Statement of Work, we will execute the Statement of Work and it will then be incorporated into this Agreement.
3. We may at our sole discretion refuse your request for a Statement of Work. If we refuse your request to prepare a draft Statement of Work, we will notify you and endeavour to provide reasons for our refusal. If we cannot help you, we will endeavour to suggest alternatives.
Acceptance testing
1. If Acceptance Testing applies to any Deliverables, we will provide notice to you when the relevant Deliverables are ready for Acceptance Testing.
2. On receipt of notice under clause 4.1, you will undertake Acceptance Testing in accordance with the agreed Acceptance Test Plan.
3. If any Deliverables are materially consistent with the requirements in the Statement of Work, you must provide to us an Acceptance Notice in relation to the Deliverables prior to the expiry of the Acceptance Testing Period.
4. If you consider that any Deliverables are not materially consistent with the requirements in the Statement of Work, you must provide to us:
  1. details of the specific parts of the Deliverables which you consider do not comply with the requirements of the Statement of Work; and
  2. all information necessary to enable us to identify and remedy the purported non-compliance with the requirements of the Statement of Work,
  and if we:
  1. agree that the Deliverables do not comply with the requirements of the Statement of Work, we will use our reasonable endeavours to remedy the non-compliance and will then re-submit the Deliverables for Acceptance Testing; or
  2. consider that the Deliverables comply with the requirements of the Statement of Work, the matter will be referred to dispute resolution in accordance with clause 21.
5. If you fail to provide a notice under clauses 4.3 or 4.4 on or prior to the expiry of the Acceptance Testing Period, you will be deemed to have accepted the relevant Services and Deliverables.
6. Despite any other provisions of this Agreement, if:
  1. any Services or Deliverables contain only minor or cosmetic defects that do not have a substantive effect on the Services or Deliverables; or
  2. you use any Services or Deliverables other than for Acceptance Testing,
  then the Services or Deliverables will be deemed to have met the Acceptance Testing requirements.
Service Levels
1. Following acceptance of the Services in accordance with clause 4, we offer free support to address any fault for a period of 30 days provided that:
  1. you provide to us immediate written notice of the fault;
  2. you investigate and ascertain the cause of the fault and provide to us all necessary information relevant to the fault (including but not limited to what you have done in relation to the fault); and
  3. you acknowledge that if a fault has been caused by the equipment, facilities, networks or systems of any other supplier or customer, we will not be responsible for such faults.
2. If we determine:
  1. that a fault arises out of or in connection with any of your equipment, facilities, networks or systems or any other supplier; or
  2. there is or was no fault,
  you must pay the us reasonable costs and expenses in dealing with the purported fault.
3. If we express a time in which we will rectify a fault, you acknowledge that any such time is an estimate only and creates no obligation on us to rectify a fault by that time.
Priority of document
1. If there is any inconsistency between this Agreement, a Statement of Work and any other document provided by either Party in connection with this Agreement, the following order of priority will apply:
  1. this Agreement;
  2. the Statement of Work; and
  3. any other documents including any electronic documents exchanged between us.
Time for performance and delay
1. We will endeavour to deliver the Deliverables by the estimated dates specified in a Statement of Work (Estimated Delivery Date).
2. If we become aware of a potential or actual delay in achieving the Estimated Delivery Date, we will notify you in writing of the nature and the cause of the delay and the steps we are taking to overcome the delay.
3. You will grant an extension of time on such terms as we may reasonably require to ensure delivery of the Deliverables.
Your responsibilities
1. You must, at your own expense:
  1. supply us with any items specified in a Statement of Work (Client Supplied Item) to enable us to perform our obligations under this Agreement and prevent undue delay;
  2. provide all reasonable assistance and cooperation to us in order to enable us to supply the Services and Deliverables in an efficient and timely manner.
2. You are responsible for all use of the Services and Deliverables and must ensure that no person uses the Services:
  1. to break any law or infringe any person’s rights;
  2. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
  3. in any way that damages, interferes with or interrupts the supply of the Services.
Fees and payment
1. In consideration for the provision of the Services and Deliverables under this Agreement, you will pay us the Fees and Expenses as specified in a Statement of Work. Unless otherwise stated, all Fees are exclusive of GST.
2. As specified in a Statement of Work, fees may be payable on a fixed price basis or a time and materials basis. If a Statement of Work states that the Fees and Expenses are an estimate only, you acknowledge and agree that the Fees charged for the Services will be based on our estimate however the final Fees and Expenses may be more or less than our estimate.
3. We will, from time to time or in accordance with any agreed payment milestones as set out in a Statement of Work, invoice you for the Fees and all reasonable Expenses and any Variation Fees incurred in supplying the Services.
4. You will pay each invoice without set off or delay in accordance with the payment terms set out in the invoice.
5. If you do not dispute any invoice prior to the date for payment of that invoice, you will be deemed to have accepted the invoice.
6. If you wish to dispute any portion of an invoice, you agree to pay the undisputed portion of the invoice in accordance with the payment terms set out in the invoice.
7. If an invoice is unpaid for 30 Business Days from the date of payment, we have the right to engage debt collection services for the collection of any unpaid and undisputed debt and the right to commence legal proceedings for any outstanding amounts owed to us. You acknowledge and agree that you are liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense and that we may place a default against you with a credit reporting agency. You agree to indemnify us for the full amount of our legal and debt recovery costs.
8. We may, at our discretion, charge monthly compound interest on any overdue amounts owed by you at a rate of 5% per annum above the Reserve Bank of Australia’s cash rate target.
Confidentiality
1. A party (Recipient) may use Confidential Information of another party (Discloser):
  1. only to the extent that such use is necessary for compliance with its obligations under this Agreement; or
  2. if legally compelled to do so by any judicial or administrative body, provided that the Discloser must promptly inform the Recipient and take all reasonably available legal measures to avoid or limit the extent of such disclosure.
2. Each Recipient must in respect of Confidential Information of the Discloser ensure that the Recipient and the Recipient’s Personnel will not disclose or permit the disclosure of the Discloser’s Confidential Information to any person other than to the extent:
  1. the disclosure is to a member of the Recipient’s Personnel who requires the Recipient’s Confidential Information for the performance of that party’s obligations, or the exercise of that party’s rights, under this Agreement;
  2. the disclosure is in accordance with the Discloser’s specific and prior written consent; or
  3. the disclosure is required by law.
3. If the Recipient or the Recipient’s Personnel is required to disclose any of the Discloser’s Confidential Information in accordance with clause 10.1, the Recipient will:
  1. immediately, and to the extent possible prior to the disclosure of the Discloser’s Confidential Information, inform the Discloser of the requirement of the applicable law; and
  2. disclose only so much of the Confidential Information as the Recipient is required by law to disclose.
4. The Recipient will take all reasonable steps to ensure that the Recipient and each member of the Recipient’s Personnel will keep the Discloser’s Confidential Information secure including but not limited to by using the security measures and degree of care no less than those the Recipient applies to its own confidential or proprietary information.
Intellectual property rights
1. A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the date of this Agreement (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
2. You grant to us a non-exclusive, royalty free, non-transferable and revocable licence to:
  1. use any of your Pre-Existing Materials including but not limited to any Client Supplied Item as reasonably required for us to provide the Services and Deliverables; and
  2. include any materials created for you as part of the Services and Deliverables (including PDF samples) as part of our portfolio of works for marketing purposes.
3. We agree:
  1. subject to clause 11.5, to assign to you all existing and future Intellectual Property Rights in any materials created for you as part of the Services and Deliverables other than the Intellectual Property Rights in any Third Party Rights and our Pre-Existing Material; and
  2. to grant to you a perpetual non-exclusive, royalty free licence of the Third Party Rights and our Pre-Existing Material incorporated or used in the Services or Deliverables.
4. In relation to any Third Party Rights that are not assigned to you, we will ensure that:
  1. access to and use of the Deliverables by any person will not infringe any such rights; and
  2. no fees, royalties or other payments are payable in respect of such Third Party Rights as a result of any such use in the Deliverables and the reproduction of the contents of the Deliverables unless otherwise agreed by the Parties in writing.
5. We retain all Intellectual Property Rights in any concepts or designs created by us and proposed but not ultimately approved by you as part of the Services and Deliverables.
6. Moral Rights
  To the extent permitted by law, we consent to the use, treatment, alteration, removal, destruction or attribution of the Deliverables as deemed appropriate by you and licensees and any person authorised by you and to do acts comprised in the copyright of work and other material used in the Deliverables or used in relation to the creation of the Deliverables which would otherwise be deemed an infringement of Moral Rights.
Privacy
1. Each Party agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines at all times.
Warranties
1. Each Party warrants that:
  1. it has the right, power, authority and entitlement to execute this Agreement and perform its obligations under this Agreement;
  2. in entering into and performing its obligations under this Agreement it has not, and will not, be in breach of any relevant law or any obligation owed to another person;
  3. there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved and that will or may have an adverse effect on its ability to comply with this Agreement; and
  4. it has all necessary licences, approvals, permits and consents to enter into and perform its obligations under this Agreement.
2. You represent and warrants to us that at the date of this Agreement all information given to us in relation to this Agreement is correct, complete and not misleading.
3. We warrant that:
  1. we have the requisite skill, ability and expertise to provide the Services;
  2. we will perform the Services in accordance with general industry standards; and
  3. to the best of our knowledge, the provision of the Services will not infringe any Intellectual Property Rights of, or constitute a breach of any agreement with, any other person.
4. We exclude all express and implied conditions and warranties in relation to any goods and/or services except those conditions or warranties that cannot be excluded by law and our liability under any such conditions or warranties is limited to, at our option:
  1. refunding the cost of the Services;
  2. resupplying the Services; or
  3. arranging to repair the outcome of the Services.
5. We will not be responsible for any spelling and grammatical errors in the any Deliverables unless you have engaged our copywriting service.
6. We may, from time to time, refer you to preferred suppliers or other third parties. You acknowledge and agree that any referral is not a recommendation by us that you seek that third party’s advice or provision of services. We do not make any warranty or representation as to the quality of the facilities or services of any third party.
7. We are not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by a failure of the facilities or services of any third party.
8. Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law.
Liability and indemnities
1. To the extent permitted by law, in any Contract Year, our liability in the aggregate for all Losses or Claims in relation to any Services, Deliverables 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 us in the current Contract Year in respect of the relevant Services giving rise to such Losses or Claims.
Your indemnities
1. You indemnify and hold us and our Personnel harmless in respect of any Losses or Claims suffered in connection with:
  1. a fault or defect in any item of your Equipment;
  2. any breach of law by you or any breach of law arising out of any breach of this Agreement by you;
  3. any negligent or fraudulent act or omission by you or your Personnel;
  4. any claim by a third party arising out of a breach of this Agreement by you;
  5. the use of any Services including any Deliverables for other than its intended purpose;
  6. any death or injury to persons and any Loss or Claims to your real or personal property or of a third party, caused or contributed by your act or omission.
2. In no event will a Party be liable to the other for any Consequential Loss or any other consequential, indirect, special, incidental or punitive damages, regardless of the form of action, whether in contract, tort, strict product liability or otherwise, even if advised of the possibility of such damages and even if the damages were foreseeable.
3. Each Party will hold the other harmless of any claims by third parties, including all costs, expenses and legal fees incurred therein, arising out of or in conjunction with performance under or breach of this Agreement.
Term
1. This Agreement will commence on the date of this Agreement and will continue unless this Agreement is terminated earlier in accordance with these terms.
Suspension and termination
1. We may provide written notice to you to suspend the supply of any Services, without any liability to you if:
  1. you are in default of any payment or other obligation under this Agreement or any Statement of Work; or
  2. we are required to do so by law.
2. If we suspend the supply of any Services under this clause for a period of 30 days or more, we may provide written notice to you of termination of the Statement of Work that relates to such Services.
3. Either Party may terminate this Agreement for convenience by giving the other Party at least 90 days’ written notice provided that:
  1. such notice is provided at least 36 months after the date of this Agreement; or
  2. there are no ongoing Statement of Work between the Parties.
4. You may terminate this Agreement by giving us at least 30 days’ notice if we are in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, we have failed to remedy the breach within a reasonable period of receipt of written notice from you describing the breach and calling for it to be remedied.
5. We may terminate a Statement of Work immediately on notice if:
  1. we complete Deliverables;
  2. the completion of subsequent related Deliverables are conditional on your further input, instructions, or approval of Acceptance Tests (Steps); and
  3. you do not complete such Steps within 30 days of our request to you to do so.
6. If we terminate a Statement of Work under clause 17.5, all Fees you have paid for services which have been performed are non-refundable to the extent permitted by law. If you wish for a project to continue after we have terminated the applicable Statement of Work, we may agree to enter into a new Statement of Work for the project.
7. We may terminate this Agreement by giving at least 30 days’ notice to you if you are in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, you have has failed to remedy the breach within a reasonable period (no more than 7 days in the case of failure to pay money when due) of receipt of written notice from us describing the breach and calling for it to be remedied.
8. We may terminate this Agreement immediately by giving written notice if a Change of Control or an Insolvency Event occurs in relation to you.
Events following termination
1. Upon termination of this Agreement, we will:
  1. immediately stop performing the Services;
  2. immediately stop placing orders for supplies or services required in connection with the performance of the Services;
  3. immediately deliver to you all work in progress; and
  4. immediately return to you all property, including Confidential Information and Intellectual Property, in our possession that belongs to you.
2. Upon termination of this Agreement, you will:
  1. immediately return to us all property, including Confidential Information and Intellectual Property, in its possession that belongs to us;
  2. immediately pay us the Fees for all Services completed, any Variation Fees incurred prior to termination, and any other amounts owing under this Agreement or a Statement of Work; and
  3. pay us the Cancellation Fee within 30 days of termination.
3. The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination.
4. The provisions of clauses 10, 11, 12, 17, 19 and 22 will survive the expiry or termination of this Agreement.
Force majeure
1. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by reasons of Force Majeure, and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.
2. Force Majeure includes, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Dispute resolution
1. If a dispute arises out of or in relation to this Agreement, no party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has complied with this clause.
2. A Party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other Party specifying the nature of the dispute. On receipt of that notice by the other Party, the Parties’ representatives must endeavour in good faith to resolve the dispute expeditiously and failing agreement within 15 Business Days of the dispute, either Party, by giving notice to the other, may refer the dispute to the Parties’ Chief Executive Officers (or their nominees) who, each party must ensure, must cooperate in good faith to resolve the dispute within 21 days of the dispute being referred to them.
3. If the Chief Executive Officers (or their nominees) fail to resolve the dispute within 15 Business Days of the dispute being deferred to them, the Parties must, at the written request of either Party and within 10 Business Days of receipt of the request, submit to mediation, expert evaluation or determination or similar techniques agreed to by them.
4. If the Parties do not agree within 5 Business Days of receipt of the notice referred to in clause 20.3 as to the dispute resolution technique and procedures to be adopted, the time table for all steps in those procedures, and the selection of compensation of the independent person required for such a technique, then the Parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of Victoria and the President of the Law Society of Victoria or the President’s nominee will select the mediator and determine the mediator’s remuneration.
Non-solicitation
1. You will not solicit or entice any of our employee(s) or contractor(s) to work for you or any competitor of our business during the Term or for a period of 12 months after the date of expiry or termination of this Agreement, unless you obtain our express prior written consent.
GST
1. Taxable supply
  If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
2. Adjustment events
  If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
3. GST terminology
  The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
4. You agree to pay any Taxes in relation to the Services.
Notices
1. Form of notice
  A notice or other communication must be in writing in English and may be:
  1. delivered personally;
  2. given by an agent of the sender;
  3. left at a Party’s current delivery address for notices as set out in this Agreement;
  4. sent by prepaid mail to a Party’s current postal address for notices as set out in this Agreement;
  5. sent by email to a Party’s current email for notices as set out in this Agreement.
2. Receipt of notice
  A notice or communication is taken as having been given:
  1. when left at a Party’s current delivery address for notices; or
  2. if mailed within Australia to an Australian address, on the third Business Day after posting; or
  3. if mailed outside of Australia to an Australian postal address or within Australia to an address outside of Australia, on the tenth Business Day after posting; or
  4. if sent by email, when the email is sent to the receiving party at the email address specified in this Agreement, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.
3. Addresses for service of notice are as set out in this Agreement.
4. A Party may change its address for service of notices by written notice to the other Party.
Relationship of parties
1. This Agreement is not intended to create a relationship between the Parties of partnership, joint venture, agency or employer-employee.
2. Each Party has no authority to create, assume or otherwise enter into any agreement that imposes rights or obligatins on the part of the other Party.
Assignment
1. Neither Party may assign any rights or benefits under this Agreement without the other Party’s prior written consent which must not be unreasonably delayed or withheld.
Waiver or variation of rights
1. Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
2. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
Power, rights and remedies
1. Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
Further assurances
1. Each Party must from time to time and in a timely manner do all things reasonably required of it by the other party to give effect to this Agreement.
Counterparts
1. This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.
Severability
1. If any provision (or part of it) of the Agreement 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 this Agreement 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 this Agreement and the remaining provisions (and remaining part of the provision) of the Agreement are valid and enforceable.
Advice
1. Each Party acknowledges that the party has received legal advice or has had the opportunity of obtaining legal advice in relation to this Agreement.
Costs
1. Each Party will bear the party’s own costs and expenses in relation to the negotiation, preparation, and execution of this Agreement.
Cumulative rights
1. The rights arising out of this Agreement do not exclude any other rights of either Party.
2. Each indemnity in this Agreement is a continuing obligation that is separate and independent from the other obligations under this Agreement.
3. A Party is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Agreement.
Entire agreement
1. This Agreement supersedes all prior undertakings, arrangements and agreements and constitutes the entire agreement between the parties in relation to the subject matter of this Agreement and there are no conditions, warranties or other terms affecting the agreement between the parties other than those set out in this Agreement.
Governing law and juridiction
1. This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
Definitions and interpretation
1. In this agreement
  Acceptance Notice means the acceptance notice document provided by us to you;
  Acceptance Test Plan means a plan specifying details of Acceptance Testing (including but not limited to the type of tests to be undertaken);
  Acceptance Testing means testing to determine whether Services or Deliverables meets the requirements as set out in the Statement of Work;
  Acceptance Testing Period means the period for Acceptance Testing set out in the Statement of Work (or if such period is not specified in the Statement of Work, the period of 14 days from the date that we provide notice that the Deliverables are ready for Acceptance Testing);
  Business Day means a day which is not a Saturday, Sunday public or bank holiday in Victoria;
  Cancellation Fee will be set out in the Statement of Work;
  Change of Control means a change in:
  1. control of the composition of the board of directors of a corporation;
  2. control of more than half the voting rights attaching to shares in a corporation;
  3. control of more than half the issued shares of a corporation (excluding any share which carries no right to participate beyond a specified amount in the distribution of either profit or capital); or
  4. control as defined in the Corporations Act 2001 (Cth);
  Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any loss, 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;
  Confidential Information means the terms of this Agreement and all know-how, financial information, technical information and other commercially valuable or sensitive information whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to a party including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies, Intellectual Property Rights, or any other matter, which is marked as confidential or which a party regards as confidential, proprietary or of a commercially sensitive nature but does not include information which:
  1. is lawfully in a party’s possession prior to its disclosure to a party by the other;
  2. enters the public domain other than as a result of any unauthorised disclosure;
  3. information which is or becomes lawfully available to a Party from a third party who has the lawful power to disclose such information to that Party on a non-confidential basis; or
  4. is independently developed by a Party;
  Consequential Loss means any loss of actual or anticipated profits, loss of revenue, loss of opportunity or customer, loss of goodwill and loss of reputation;
  Contract Year means each 12 month period ending on an anniversary of the date that the Services are first provided;
  Deliverables means any materials, including any customisation, documentation or other materials to be delivered to you under this Agreement or any Statement of Work;
  Estimated End Date is set out in a Statement of Work;
  Equipment means any equipment used or supplied by a Party to enable the supply of Services;
  Expenses means any reasonable travel, accommodation, royalty payments for images or other disbursements or third party costs as agreed between the Parties in a Statement of Work;
  Fees means the fees for the Services and any Deliverable as specified in this Agreement or any Statement of Work;
  Insolvency Event means any of the following events or any analogous event in which a Party:
  1. disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
  2. ceases, or threatens to cease, carrying on business;
  3. is unable to pay its debts as they fall due;
  4. makes or commences negotiations with a view to making, a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors;
  5. takes any corporate action or any steps are taken or legal proceedings are started for:
    1. its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other party (which approval will not be unreasonably withheld); or
    2. the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or
  6. seeks protection or is granted protection from its creditors, under any applicable legislation.
  Intellectual Property Rights means any and all intellectual and industrial protection rights throughout the world including copyright (past, present and future copyrights and rights in the nature of or analogous to copyright), inventions, patents, designs (whether registrable or not), registered and unregistered trade marks, circuit layout designs;
  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);
  Loss means loss, damage, liability, charge, expense, outgoing, or cost, (including all legal and other professional costs on a full indemnity basis) of any nature or kind;
  Personnel means any employee, servant, contractor, subcontractor and agent of that Party;
  Services means the services we will provide under this Agreement as set out in each Statement of Work;
  Service Level Agreement is set out in a Statement of Work;
  Statement of Work means a proposal for Services provided to the Client by Rainstorm, which may be in the form of a written scope,proposal, statement of works or other form provided by Rainstorm to the Client from time to time;
  Support Services means the hosting and/or maintenance services as set out in a Statement of Work;
  Taxes means any tax, rate, levy, duty or import and any interest, penalty, expense or fine in connection with any of them including but not limited to any tax in relation to sales, use, property, value added, goods and services, turnover, stamp duty, interest equalisation, business, occupation, excise, income, profits or receipts;
  Term means the term of this Agreement as set out in clause 16;
  Third Party Rights means Intellectual Property Rights owned by or licensed to third parties including:
  1. computer programs owned by third parties and licensed by us and any subcontractor to provide the Services; and
  2. any literary, dramatic, artistic and musical works owned by third parties and licensed for inclusion in the Deliverable.
  Variation means a variation to this Agreement (including but not limited to a variation to the Services, Deliverable, timing, or any other part of a Statement of Work); and
  Variation Fee means any additional cost to perform the Variation as proposed by us.
2. Interpretation:
  In this Agreement, unless expressed to the contrary:
  1. words in the singular include the plural and vice versa;
  2. headings are for convenience and do not affect the interpretation of this Agreement;
  3. any gender includes the other gender;
  4. a reference to a clause, paragraph or form is a reference to a clause, paragraph or form, as the case may be, of this Agreement;
  5. if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
  6. a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;
  7. if a word or phrase is defined in this Agreement then any other grammatical form of the word or phrase shall have a corresponding meaning;
  8. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;
  9. “includes” and similar words mean includes without limitation;
  10. no clause of this Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
  11. a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation;
  12. a reference to this or any other agreement includes the agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the parties;
  13. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
  14. a reference to time is to local time in Victoria; and
  15. a reference to “$” or “dollars” refers to the currency of Australia from time to time.

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