The MST are standard terms of business applicable to the delivery of any engagement of technology professional services. When services are provided by Agilyx, they are done so under a 'Statement of Work' which imports the terms of the MST set out below.
In the Agreement, unless it is provided otherwise, the Rules of Interpretation apply.
The Agreement incorporates the Agilyx General Terms of Business, they apply as though set out in full here.
If expressly provided by the Statement of Work, the Agreement incorporates the Data Processing Addendum.
Capitalised words and phrases in the Agreement have their meaning from the Dictionary unless the contrary intention appears.
Certain other words and phrases in the Agreement have their meanings as set out below:
Change Request means an enforceable written variation to the Agreement, using a pre-defined process set out in the Statement of Work or otherwise a signed agreement to vary the Agreement. The consideration for the new obligations in a Change Request will be the new mutual obligations (or the extinguishing of existing obligations) of the parties as varied by the Change Request or the price paid for additional services performable, whichever applicable.
Software System means a software system and all its constituent Material which is the subject of any Services to provided by Agilyx under a Statement of Work.
Data means any data, records, database entries, or information (whether in soft or hard copy form) which is:
Documentation means documentation, manuals, guides, designs, drawings, reports, notes, calculations, photographs, audio-visual materials, recordings which describes or records the existence, operation, design, intention, function or specification of anything or series of things (such as a process).
Material means any Data, Software and/or Documentation.
Moral Rights means the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work and the right not to have authorship of a work falsely attributed.
Software includes scripts (including API scripts) and code (whether source code or binary/compiled code).
Services means any Agilyx professional services particularised on the Statement of Work and performed pursuant to, or in connection with, the Agreement.
Professional Services Rates means the hourly and/or daily rates for Services outlined in a Statement of Work.
Agilyx will prepare a first draft of a Statement of Work encapsulating the terms of the Services to be provided to the Customer as well as any Deliverables. Once the Statement of Work is agreed between the parties, the Customer and Agilyx will execute it.
Once executed, the Statement of Work creates the Agreement between the parties importing these Master Services Terms as well as any other terms expressed on the Statement of Work and any documents incorporated by reference.
Where there is an inconsistency between these Master Services Terms and any terms in a Statement of Work, these Master Services Terms supersede those conflicting terms in the Statement of Work to the extent of the inconsistency. However, the Statement of Work can expressly provide that any terms in the Master Services Terms do not apply to that Statement of Work, in which case only those terms expressly identified do not apply and the rest remain in full force as part of the Agreement.
Any terms of the Statement of Work will prevail over the terms of any other document incorporated into it by reference (except these Master Services Terms) to the extent of any inconsistency.
The terms set out in the Agreement documents (the Statement of Work, these MST and any other terms incorporated by reference) are the whole and entire agreement in relation to its subject matter and supersede all oral and written communications by or on behalf of the parties leading up to its creation and execution. This includes any pre-contractual representations of any form, including a Customer’s request for proposal/quote/information (RFx) issued prior to the creation of the Agreement. In other words, the parties intend that the terms of the Agreement capture all of the terms and representations made in the RFx that are intended to have contractual force.
Unless expressly modified in a Statement of Work, Agilyx must, for the term of the Agreement:
perform the services under the Agreement in accordance with good industry practice for a technology services consultancy working in a skilful, diligent, responsive and professional manner;
comply with all reasonable directions and procedures of the Customer relating to workplace health, safety and security in operation at those premises or facilities;
comply with its statutory obligations in the delivery of the services under the Agreement, including but not limited to compliance with:
minimum terms and conditions of employment including those in respect of long service leave, annual leave, parental leave and sick leave;
applicable industrial relations and anti-discrimination legislation; and
occupational health and safety and workers compensation legislation, and
co-operate in a collaborative manner with any other contractors of the Customer working on related services to those under the Agreement, but subject to any limitations on the scope of Services set out in the Agreement.
Unless expressly modified in a Statement of Work, the Customer must, for the term of the Agreement:
perform its obligations (whether expressed as obligations, responsibilities or otherwise) under the Agreement, which may include producing inputs to Deliverables that Agilyx’s services or Deliverables under the Agreement are contingent on, and perform those obligations promptly;
provide Agilyx or its subcontractors with appropriate access to its property or premises duly required for the performance of any services or obligations in the Agreement;
provide any reasonable assistance, in the spirit of mutual co-operation, with Agilyx’s efforts to perform any services, including fully co-operating with Agilyx personnel and any subcontractors;
provide Agilyx with full and frank disclosure of material matters which may impact the timely delivery of any services or Deliverables by Agilyx to the Customer;
ensure a safe working environment for any personnel visiting the Customer premises or facilities, including complying with best practice and laws regarding workplace health, safety and security;
pay all invoices for fees and expenses in accordance with the terms of the Agreement.
In the Agreement, Agilyx may set out assumptions. If an assumption is not satisfied or proves to be invalid or incorrect, it is an ‘Assumption Failure’.
Similarly, the Customer may be required to provide inputs or take on certain responsibilities throughout the Implementation Process in order to facilitate the production of Deliverables or the delivery of services by Agilyx. If the Customer fails to produce these inputs or discharge its responsibilities in a timely manner or to the standard required then it will be an ‘Input Failure’.
If there is an Input Failure or an Assumption Failure:
Agilyx will not be responsible for any resulting failure to perform obligations that are affected by the Input Failure or the Assumption Failure (such as the production of Deliverables);
The Customer will not unreasonably withhold its approval to a Change Request to the extent reasonably required to reflect the impact of the Input Failure or the Assumption Failure (including on the timeframes and fees); and
Agilyx may terminate the Agreement giving 5 Business Days’ notice if a suitable Change Request is not entered into between the parties to address the Input Failure or Assumption Failure.
Nothing in the Agreement confers a right or licence of any Intellectual Property Rights in the Software System. Such rights or licenses would only be granted under a separate agreement. This section deals only with Intellectual Property Rights and licensing of Materials produced in the implementation, customisation, or configuration of the Software System or with any ancillary services.
All Intellectual Property Rights in the Agilyx Materials are retained by, and remain, Agilyx’s and/or its licensors rights and are not, except as expressly provided for in the Agreement, transferred, assigned or granted to the Customer.
Agilyx grants the Customer and its Related Bodies Corporate an irrevocable, perpetual, non-exclusive, worldwide, paid-up licence to hold, reproduce, publish, adapt or otherwise use any Agilyx Material for its internal business purposes only. This licence expressly prohibits any use of the Agilyx Material for any commercial purpose (such as resale).
Where the Customer provides Agilyx Materials to its Related Bodies Corporate, it must ensure the license terms under this Agreement are enforceable by Agilyx directly as a third-party beneficiary against that Related Body Corporate.
Agilyx warrants that it has the rights to grant, license, or sub-license all parts of the Agilyx Materials to the Customer that it is required to grant, license, or sub-license (as applicable) under the Agreement.
Subject to the Customer’s compliance with the ‘Customer’s Conduct in an IP Claim’ subclause below, Agilyx will indemnify the Customer against all liability, losses, damages, costs and expenses suffered or incurred by the Customer as a result of any claim alleging that any of the Agilyx Materials or the Deliverable Materials (except where they are provided by a third party, such as for example if third-party Software is particularised in the Statement of Work as a Deliverable), or the Customer’s use or possession of any of them, infringes the Intellectual Property Rights or Moral Rights of any third party (IP Claim).
Upon becoming aware of any actual or anticipated IP Claim, the Customer must:
promptly notify Agilyx in writing;
allow Agilyx to take control of the conduct of any IP Claim and all negotiations for its settlement or compromise, with Agilyx consulting with the Customer to keep it fully informed of the conduct of the IP Claim; and
at its own cost, co-operate with Agilyx in defending or settling any IP Claim and make its employees available to give any statements, information and evidence that Agilyx reasonably requests.
If Agilyx is of the reasonable view that an IP Claim is likely to result in any Loss or Liability, then either as pre-emptive measure to, or during, the conduct of any IP Claim, the Customer must allow Agilyx, at its own cost, to:
obtain for the Customer the right to continue to use any infringing Material; or
without causing a material diminution in performance or function, to either:
modify the appropriate aspect of any infringing Material so it becomes non-infringing; or
replace the appropriate aspect of the Material with other non-infringing material.
All Intellectual Property Rights in the Customer Materials are retained by, and remain, the Customers and/or its licensors rights and are not, except as expressly provided for in the Agreement, transferred, assigned or granted to Agilyx.
The Customer grants Agilyx a revocable (only after expiry or termination of the Agreement), perpetual, non-exclusive, worldwide, paid-up licence to hold, reproduce, adapt or otherwise use any Customer Material for any acts required in the performance of:
the Agreement (including for inclusion in any Deliverable or any Deliverable Material); or
any obligation under any other agreement between the parties (such as for support and maintenance purposes under a separate support and/or maintenance agreement).
If the Customer requires Agilyx to use any Materials from its Related Bodies Corporate under or in connection with the Agreement, the Customer must, on or before those Materials are to be used by Agilyx, procure a licence on the same terms as above from the relevant Related Body Corporate prior to Agilyx’s use of those Materials.
The Customer warrants that Agilyx’s use or possession of any of Customer Materials will not infringe the Intellectual Property Rights or Moral Rights of any person.
Agilyx grants the Customer Entities an irrevocable, perpetual, non-exclusive, worldwide, paid-up licence to hold, reproduce, adapt or otherwise use any Deliverable Material for its internal business purposes for the Customer and its Related Bodies Corporate, such a licence expressly prohibiting any use of the Deliverable Material for any commercial purpose (such as resale).
All fees payable under this Agreement will be invoiced by Agilyx as set out in the Statement of Work (for instance, in advance or in arrears) and will be due and payable by the Customer within thirty (30) days from the date of the invoice. Charges for applicable taxes, duties or other sales charges will be added to the invoice.
In addition to the fees payable under the Agreement, Agilyx will be reimbursed, by the Customer for all Agilyx staff travel time at half the Professional Services Rates plus all out-of-pocket expenses, plus applicable taxes. These expenses will be invoiced on a monthly-in-arrears basis and are only payable where Agilyx staff are required to travel outside of their regular metropolitan area of work.
If the Customer should fail to pay any invoice within thirty (30) days from the date of the invoice, Agilyx may charge the Customer interest and recovery costs for the overdue period. The rate of interest is provided in the table below and varies by jurisdiction, subject always to applicable law.
| Jurisdiction | Applicable Interest Rate (% per annum) |
|---|---|
| New South Wales, Australia | Commonwealth Bank of Australia’s Corporate Overdraft Reference Rate (CORR) for a Business Overdraft plus 5% |
| England and Wales | HSBC’s Representative EAR (Effective Annual Rate) for a Business Overdraft |
| Republic of South Africa | First National Bank’s Prime Lending Rate plus 5% |
| New Zealand | ASB’s Corporate Indicator Rate plus 5% |
| Ireland | Allied Irish Bank’s Business Overdraft AA Rate plus 5% |
| British Columbia, Canada | Royal Bank of Canada (RBC) Royal Bank Prime rate plus 5% |
| United States of America (all states) | JPMorgan Chase & Co’s most recent Historical Prime Rate plus 5% |
| Malaysia | The Malaysian Banking Berhad (Maybank2u) Base Lending/Base Financing Rate plus 5% |
| Republic of Singapore | United Overseas Bank Group (UOB) Prime Lending Rate plus 5% |
On each anniversary of the Commencement Date, any Professional Services Rates provided in a Statement of Work are subject to Indexation.
In the event that a Customer cancels the delivery of previously agreed professional services under a Statement of Work:
between 7 and 4 Business Days’ notice, Agilyx may charge the Customer 50% of the proposed professional services fees; or
with 3 or less Business Days’ notice, Agilyx may charge the Customer 100% of the proposed professional services fees,
that would have otherwise been payable under that Statement of Work had the services not been cancelled at late notice.
Agilyx will make reasonable efforts to reassign professional services personnel in the event of a cancellation by the Customer and where it is able to do so will reduce the fees levied pursuant to the ‘Agilyx may charge cancellation fees’ subclause above. However, regardless of length of notice of the cancellation given, any incidental costs (e.g. pre-booked travel and accommodation) which cannot be defrayed must be reimbursed to Agilyx by the Customer.
Agilyx must, unless specified otherwise in a Statement of Work, have and maintain valid and enforceable insurance policies to levels specified in a Statements of Work.
Agilyx must, on request by the Customer, provide to the Customer within five Business Days proof of the currency of the required insurances, in the form of an insurance certificate from the insurer certifying that the insurance required by this ‘Insurance’ clause is in force.
The provisions of this ‘Insurance’ clause shall survive termination or expiry of the Agreement for any reason.
The total aggregate liability of Agilyx (whether under statute, in contract or in tort, including for negligence, or otherwise) for loss or liability suffered or incurred by the Customer under or in connection with the Agreement, is limited to an amount equal to 1.5 times the total fees paid or payable by the Customer pursuant to the Agreement.
Unless specified otherwise in a Statement of Work, the Liability Cap does not apply to any liability arising out of:
the ‘Third Party Intellectual Property Claim Indemnity’ subclause;
personal injury (including sickness or death of a person);
loss of, or damage to, tangible property; or
any fraud or any unlawful act or omission.
To the extent permitted by law, under no circumstances whether in tort, contract, or otherwise, shall either party be liable to the other for any indirect, special, incidental, or consequential loss or damage of any character, or any claims, losses or damages (whether actual or anticipated) for loss of goodwill, profits, revenue, future contracts, opportunity, anticipated savings, loss or corruption of data or equipment, work stoppage, computer failure or malfunction, regardless of whether or not such losses or damages were foreseeable, known or may have reasonably been within the contemplation of the parties before, during or after the Agreement was made.
Each party shall take reasonable steps to mitigate any losses, damages, costs or expenses sustained or incurred as a result of any act or omission (including any breach or default of the Agreement) by the other party.
Other than the warranties expressly provided for in the Agreement each party excludes all implied terms and warranties whether statutory or otherwise, relating to the subject matter of the Agreement including any warranties of merchantability or fitness for any purpose.
Nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Customer by any other law that cannot be excluded, restricted or modified by agreement.
The provisions of this ‘Liability’ clause shall survive termination or expiry of the Agreement for any reason.
The rights of termination in this clause are granted without limiting any other rights or remedies a party may have against the other party arising out of or in connection with the Agreement.
The Agreement begins on the date the Statement of Work is executed between the parties (the Commencement Date) and will continue in full force and effect unless it is earlier terminated in accordance with its terms.
Without prejudice to any other right or remedy it may have, Agilyx may immediately terminate the Agreement at any time by giving to the Customer notice in writing if:
the Customer fails to pay any fees under the Agreement; and
the failure to pay is not remedied within 20 Business Days of the Customer receiving written notice from Agilyx specifying the failure to pay and requiring payment.
Agilyx may terminate the Agreement as set out in the ‘Assumption Failure’ subclause above.
In order to protect the business and commercial interests of Agilyx, the Customer agrees that it will not, either directly or indirectly, during and after the term of the Agreement:
solicit, canvass, induce or encourage (or attempt to do any of these things) any employee or agent of Agilyx to terminate their contracts of employment or agency with Agilyx whether for the purposes of becoming an employee of the Customer or otherwise; or
interfere, or seek to interfere with, the relationship between Agilyx and any subcontractors, suppliers or employees of Agilyx.
The restraints in this clause apply during the entire term of the Agreement and following termination or expiry of the Agreement within any of the following time periods:
3 months;
6 months; and
12 months.
Each of the time periods in the ‘Time periods of restraint’ subclause provide a separate restraint and take effect as if each is separate and independent from the others. Each separate restraint consists of the:
obligations in ‘Customer restrained from soliciting Agilyx Professional Services’ subclause;
acknowledgements in the ‘Acknowledgements regarding restraints’ subclause below; and
one of the time periods referred to in ‘Time periods of restraint’ subclause.
If any of the separate and independent restraints described in the above ‘Individual nature of restraints ‘ subclause are invalid or otherwise unenforceable for any reason, without limiting any provision in the Agreement concerning severance/severability, the invalidity or unenforceability shall not affect the validity or enforceability of any of the other separate and independent restraints and time periods.
It is specifically acknowledged by the Customer that:
Agilyx’s rights under this clause are in addition to, and do not derogate from, or affect, Agilyx’s common law or equitable rights;
the restraints in this clause are reasonable, and that injunctive relief may be sought by Agilyx to enforce them; and
in the event that any of the restraints in this clause, or parts of them, are found not to be enforceable then it is agreed that the remainder of the restraints shall apply and remain unaffected.
The Customer acknowledges that a breach by it of the provisions of this clause requires the expenditure of time and expense by Agilyx in replacing such employee for which Agilyx is entitled to recover as liquidated damages an amount equal to 50% of the gross annual salary or fee of the individual concerned as at the time of the breach (which is acknowledged to be a genuine pre-estimate of the loss and damage suffered by Agilyx). This provision shall be without prejudice to Agilyx’s right to seek injunctive relief.
The provisions of this clause shall survive termination or expiry of the Agreement for any reason.
