Master Services Agreement

1. Operative Framework

1.1 Umbrella agreement

1. This MSA governs all Services that the Service Provider supplies to the Client during the Term, except to the extent the parties expressly agree in writing that separate terms apply.

2. No particular project or service is required merely because this MSA has been signed. The Service Provider is only required to perform Services that are agreed in an accepted SOW or other written instruction that expressly incorporates this MSA.

1.2 Schedules of Work (“SOWs”)

1. The Service Provider may prepare a proposed SOW following discovery, scoping, workshops, correspondence or other requirements gathering. A proposal, estimate, pitch deck, Discovery Audit or quotation is not itself an SOW unless it is expressly identified as one and accepted in accordance with this MSA.

2. The Client must ensure that the person accepting an SOW has authority to commit the Client to the scope, Fees and assumptions stated in it. The Service Provider may rely on that apparent authority unless notified otherwise before acceptance.

3. An SOW may incorporate schedules, specifications, diagrams, user stories, acceptance criteria, technical architecture, rate cards or other documents by clear reference. Incorporated material is binding only to the extent identified in the SOW.

4. Where a SOW contains an estimate or allowance rather than a fixed Fee, the Client must pay for actual work performed at the applicable rates, subject to any stated cap or approval threshold.

5. Each SOW must identify, as applicable, the Services, Deliverables, assumptions, exclusions, dependencies, Milestones, acceptance requirements, project timing, Fees, payment schedule, third-party costs, warranty arrangements and any project-specific terms.

6. A SOW may be signed electronically or otherwise accepted in writing by authorised representatives of both parties.

7. Each accepted SOW forms part of this MSA and does not create a separate legal relationship.

1.3 Discovery Audit and baseline scope

1. A Discovery Audit is supplied under separate terms of engagement and is not governed by this MSA unless the parties expressly agree otherwise in writing.

2. Where the Client has completed a Discovery Audit, the SOW may incorporate the final approved Discovery Audit by its title, version number and date. Only the version expressly identified in the SOW forms part of the project baseline.

3. Where a Discovery Audit is incorporated into an SOW under paragraph (b), this MSA and the applicable SOW supersede the separate terms of engagement under which that Discovery Audit was supplied, but without affecting any rights, liabilities or obligations accrued under those terms before the applicable SOW took effect.

4. Recommendations or possibilities identified in a Discovery Audit are not included in the Services unless they are expressly included in the SOW.

5. Subject to paragraphs (f) to (i), any addition to, deletion from or other change to the approved baseline after acceptance of the SOW is dealt with under clause 7.

6. Where a Discovery Audit incorporated into an SOW expressly records that a statement about the Client's existing product, system or technical environment is an inference because the relevant underlying system, source code, repository or other material could not reasonably be examined during the Discovery Audit, the Service Provider may rely on that inference in determining the scope, Fees and timing of the Services.

7. If, once the relevant system or material can reasonably be examined, the actual position is materially different from the inference recorded in the Discovery Audit and that difference requires additional or materially different work, that additional or affected work is outside the agreed scope. The Service Provider must notify the Client in writing of what has been identified, the effect on the agreed scope and timing, and the additional work and Fees proposed to address it.

8. The additional or affected work referred to in paragraph (g) will be dealt with as a Variation under clause 7. If the Client does not accept the proposed Variation, the affected item may be removed from the SOW by written Variation and the Fees will be reduced by the amount attributable to that item.

9. Nothing in this clause permits the Service Provider to increase a fixed Fee for work that remains within the agreed scope.

1.4 Third-party reliance on Discovery Audit

1. A Discovery Audit is prepared solely for the Client for the purpose stated in the terms of engagement under which the Discovery Audit is supplied or, if no purpose is stated, for the Client's assessment and planning of the services to which the Discovery Audit relates.

2. The Client may provide a copy of a Discovery Audit to its professional advisers, investors, lenders, prospective purchasers, insurers or other third parties for information purposes. Providing a Discovery Audit to a third party does not of itself entitle that third party to rely on it, and the Client must not represent that the Service Provider has agreed that the third party may rely on it.

3. To the maximum extent permitted by law, the Service Provider assumes no duty of care or other responsibility to any third party who receives, reviews or uses a Discovery Audit, and no such third party is entitled to rely on it, unless the Service Provider expressly agrees otherwise in writing.

4. Nothing in this clause limits any liability that cannot lawfully be excluded or limited.

1.5 Order of precedence

1. If documents forming part of this MSA are inconsistent, the following order applies unless the later document expressly states otherwise:

   1. an accepted Variation, for the subject matter of that Variation;
   2. the applicable SOW or Care Plan, for engagement-specific commercial and technical matters;
   3. this MSA; and
   4. any incorporated Discovery Audit, proposal, specification or other supporting document.

2. A SOW does not amend a standing legal term of this MSA merely because it contains inconsistent wording. A departure from a standing legal term must expressly identify the clause being varied.

1.6 No client purchase terms

1. The Service Provider's terms under this MSA and the applicable SOW or Care Plan govern the supply of the Services, including Fees, invoicing, payment terms and other commercial terms.

2. Any standard purchasing terms, payment terms, credit terms, procurement terms or other buying conditions of the Client do not apply to the Services and do not form part of this MSA unless the Service Provider expressly agrees otherwise in writing.

3. Terms contained in a purchase order, procurement document, vendor portal, onboarding form or other document issued or required by the Client do not form part of, amend or override this MSA merely because the Service Provider receives, processes or otherwise acts in connection with that document or system.

1.7 Non-exclusivity and future engagements

1. Unless an SOW expressly states otherwise, neither party is required to offer or accept future work and the Service Provider may provide services to other clients, including businesses operating in similar industries.

2. The Service Provider must nevertheless comply with its confidentiality obligations and must not use the Client’s Confidential Information or Client Materials for another client.

3. Terms contained in a purchase order, vendor portal, onboarding form or other document issued by the Client do not amend this MSA unless the Service Provider expressly agrees in writing to the amendment.

2. Services and Service Standard

2.1 Performance of Services

1. Unless the SOW prescribes a methodology, the Service Provider may use agile, iterative, staged, prototype-led or other development methods it reasonably considers appropriate.

2. Technical architecture, libraries, frameworks, hosting configuration and implementation choices may evolve during delivery where reasonably necessary to achieve the agreed outcome, provided a change that materially alters scope, Fees, functionality or an agreed requirement is dealt with under clause 7.

3. Refactoring, code optimisation, dependency updates and technical substitutions that do not materially reduce agreed functionality do not of themselves constitute a Variation.

4. The Service Provider will maintain project records and technical documentation to the extent reasonably appropriate to the nature and value of the Services and as expressly required by the SOW.

5. Unless expressly included, the Service Provider is not required to create enterprise-level architecture documentation, training manuals, disaster-recovery plans, compliance matrices or other documentation merely because those materials could be useful to the Client.

6. The Service Provider will perform the Services in accordance with the service standard and warranty in clause 18.2 and applicable law.

7. Unless a SOW expressly states that a date is fixed, delivery dates and Milestone dates are estimates based on information and dependencies known when the SOW is accepted.

8. The Service Provider may determine the manner, methodology, Personnel and technical means used to perform the Services, subject to the agreed scope and any express requirements in the SOW.

2.2 Personnel, Subcontractors and Specialist Resources

1. The Client acknowledges that the Service Provider may use suitably qualified personnel located outside Australia, including for software development and technical support, subject to applicable privacy, confidentiality and security obligations.

2. The Service Provider will ensure that each member of Personnel who creates or contributes to Project IP is bound by a written agreement with the Service Provider under which that person assigns to the Service Provider all Intellectual Property Rights in their contribution necessary for the Service Provider to grant or assign the rights contemplated by clause 11, and provides all consents necessary for the Service Provider and the Client to exercise those rights, and will take reasonable steps to ensure that Personnel with access to Client Confidential Information are subject to appropriate confidentiality obligations.

3. The Service Provider remains responsible for selecting and managing its Personnel and may replace Personnel during an engagement where reasonably necessary for resourcing, performance, leave, security or business continuity.

4. The Service Provider may use employees, contractors, developers, specialist providers and other personnel in Australia or overseas to perform the Services.

5. The Service Provider remains responsible to the Client for performance of the Services by its Personnel to the same extent as if the Service Provider performed those Services itself, subject to this MSA.

6. The Client has no right to select individual Personnel, but may raise reasonable, substantiated concerns about a person assigned to its engagement. The Service Provider will consider those concerns in good faith.

2.3 Third-party platforms and services

1. If a third-party provider changes an API, pricing model, technical requirement, licence, feature, policy or availability after an SOW is accepted, the Service Provider may propose a Variation where additional work or cost is required to maintain the agreed functionality.

2. The Service Provider is not required to absorb third-party price increases or undertake material re-engineering caused by a third-party change without additional Fees.

3. If a third-party service is discontinued or becomes commercially or technically unsuitable, the parties will cooperate in good faith to identify a reasonable alternative. Migration or replacement work is outside scope unless the SOW states otherwise.

4. The Services may depend on third-party platforms, APIs, cloud providers, app stores, payment processors, advertising networks, search engines, software libraries, plugins, SDKs, open-source software and other third-party products or services.

5. Third-party products and services are subject to their own terms, licences, availability, pricing, technical limitations and changes. The Service Provider does not control those matters and does not guarantee continued availability or unchanged functionality.

6. Unless included in the Fees, the Client is responsible for all third-party fees, subscriptions, usage charges, advertising spend and infrastructure charges associated with its project.

2.4 No guaranteed outcomes

The Service Provider does not guarantee any particular commercial, financial, regulatory, marketing, advertising, ranking, traffic, conversion, lead, revenue, user adoption, security or other outcome. Any forecast, estimate, strategy, target or projection is an informed estimate only and is not a promise or guarantee of result.

3. Client Obligations and Dependencies

3.1 Client Information, Requirements and Dependencies

1. The Client must provide complete and accurate information, instructions, approvals, decisions, content, access and assistance within the time reasonably required having regard to the applicable project timetable, Milestones and dependencies, as required for the Service Provider to perform the Services.

2. The Client is responsible for the accuracy and completeness of its requirements and must notify the Service Provider of any error, omission or change as soon as reasonably practicable after becoming aware of it.

3. The Service Provider may rely on information and instructions supplied by the Client and is not required to independently verify them unless the SOW expressly requires verification.

4. To the extent that any error, omission, inaccuracy or change in the Client's requirements, information, instructions or other materials provided by or on behalf of the Client causes the Service Provider to perform additional work, repeat or revise work already performed, or otherwise affects the scope, Fees, Milestones or timing of the Services, that additional or affected work will be dealt with as a Variation under clause 7.

3.2 Client approvals

1. The Service Provider may proceed on the basis of day-to-day project approvals, selections and instructions given through the agreed project channels, including email, project-management software and recorded meetings, for project administration and implementation purposes. For the avoidance of doubt, a day-to-day project approval, selection or instruction does not constitute acceptance of an SOW or Variation, or approval of a material change to the agreed scope, Fees or other contractual terms, unless accepted in accordance with the applicable provisions of this MSA.

2. If the Client delays a decision and the Service Provider identifies a reasonable default assumption in writing, the Service Provider may proceed on that assumption after giving the Client a reasonable opportunity to object, where doing so is necessary to avoid unnecessary project delay.

3. A project-administration approval does not waive the Client’s rights in relation to a latent defect that could not reasonably have been identified at the time of approval.

3.3 Delays and non-response

1. A delay caused by the Client, its Personnel, advisers or third-party providers extends affected project dates by at least the period of delay and may require a revised delivery timetable.

2. Where the Client's delay, non-response or failure to provide required information, access, instructions or approvals prevents or materially affects performance of the Services, the Service Provider may exercise its rights under clause 10. Any additional work reasonably caused by the delay may be treated as a Variation under clause 7.

3.4 Client materials and legal rights

1. The Client warrants that it has all rights, licences, permissions and consents required for the Service Provider to use materials, data, content, branding, software, specifications and other items supplied by or on behalf of the Client for the Services.

2. The Client must not instruct the Service Provider to perform an act that the Client knows, or ought reasonably to know, would infringe third-party rights or contravene applicable law.

3. The Client indemnifies the Service Provider against any liability, loss, damage and reasonable legal costs incurred by the Service Provider arising from a third-party claim that the Service Provider's use of any materials, data, content, branding, software, specifications or other items supplied by or on behalf of the Client, in accordance with this MSA or the applicable SOW, infringes that third party's Intellectual Property Rights or other proprietary rights.

4. The indemnity in paragraph (c) does not apply to the extent that the relevant claim arises from:

   1. use of the relevant item by the Service Provider other than as authorised by the Client or reasonably required to perform the Services;
   2. a modification made by the Service Provider that was not authorised or required by the Client and that gives rise to the claim; or
   3. the Service Provider's breach of this MSA or applicable law.

3.5 Regulated activities

1. The Client remains responsible for its business, products, services, licences, regulatory approvals and legal compliance. The Service Provider does not provide legal, taxation, credit, financial services or other regulated professional advice, and nothing in the Services, Deliverables or communications provided by the Service Provider is intended to constitute such advice.

2. The Service Provider may identify an issue that appears to warrant professional assessment and may recommend that the Client obtain advice, but identification or referral is not professional advice.

4. Infrastructure, Accounts, Access and Security

4.1 Client ownership of accounts

1. Hosting, domains, cloud accounts, app-store accounts, payment accounts and other production infrastructure intended for the Client’s ongoing use must be owned by or transferred into the Client’s name before launch, unless a SOW expressly provides otherwise.

2. The Service Provider may provision an account temporarily during a build for operational efficiency, but will transfer the account to Client ownership before launch once all amounts required for that transfer and the relevant Deliverables have been paid.

4.2 Administrative access

1. The Client grants the Service Provider and its authorised Personnel the administrative access reasonably required to perform the Services for the duration of the relevant engagement.

2. The Client must maintain multi-factor authentication where reasonably available, protect credentials and not share credentials insecurely.

3. The Client must not materially alter configuration, permissions, services, dependencies or access arrangements in a managed environment without first consulting the Service Provider where the change could reasonably affect the Services, security or Deliverables.

4.3 Client-side changes

1. The Service Provider is not responsible for an error, outage, vulnerability, incompatibility, delay or other issue to the extent caused by a change made by the Client or a person authorised by the Client, or by the Client’s failure to comply with clause 4.2.

2. To the extent a Client-side change causes or contributes to an issue, any warranty, support or Care Plan obligation relating to that issue is suspended until the cause is addressed, and investigation and remediation may be charged as additional Services.

4.4 Account provisioning and transfer

1. Where the Service Provider creates an account in its own name for speed or convenience, it will use reasonable efforts to ensure the account is capable of transfer to the Client, but transfer remains subject to the third-party provider’s procedures and eligibility requirements.

2. The Client must complete identity verification, payment-method, tax, app-store, merchant, domain or other onboarding requirements necessary to establish or transfer Client-owned accounts as soon as reasonably practicable after being requested to do so by the Service Provider or the relevant third-party provider, and in any event within the time reasonably required to avoid delaying the establishment or transfer of Client-owned accounts.

3. The Service Provider is not responsible for delay caused by a third party refusing, delaying or conditioning an account transfer where the Service Provider has taken reasonable steps to facilitate it.

4.5 Security

1. Each party must use reasonable security practices appropriate to the information and systems within its control. The Client remains responsible for security of its own users, devices, passwords, identity systems and accounts except to the extent expressly managed by the Service Provider under an SOW or Care Plan.

2. The Client must revoke access for departed personnel as soon as reasonably practicable after their access is no longer required, use unique credentials and implement MFA where reasonably available.

3. The Client must notify the Service Provider as soon as reasonably practicable after becoming aware of any suspected or actual unauthorised access relevant to the Services.

4. The Service Provider may suspend access or Services where it reasonably considers immediate action necessary to contain a security risk, provided it notifies the Client as soon as reasonably practicable.

5. The Client is responsible for paying third-party platform and infrastructure charges when due. A suspension, outage or loss caused by non-payment of those charges is not a failure by the Service Provider.

5. Fees, Invoicing and Payment

5.1 Payment structure, Fees and GST

1. The Client must pay the Fees and approved expenses specified in each SOW, Care Plan or Variation.

2. The payment structure for the Services will be specified in the applicable SOW or Care Plan and may include payment in advance, a deposit followed by Milestone or final payments, recurring Fees, time-and-materials billing, fixed Fees or another agreed payment structure.

3. Where an SOW requires a Fee, deposit or other amount to be paid before commencement of the Services or a particular Milestone, the Service Provider is not required to commence the relevant Services, reserve Personnel or resources, incur applicable costs or begin work on that Milestone until the required amount has been paid.

4. Where an SOW requires full payment in advance for a Service, the Service Provider is not required to commence that Service until the applicable Fee has been paid in full.

5. Where an SOW specifies a fixed Fee, that Fee will not increase merely because the Services take longer, prove more difficult or require greater internal resources than the Service Provider estimated, or because the Service Provider otherwise underestimated the cost of performing the agreed scope.

6. Paragraph (e) does not prevent an adjustment to the Fees under an accepted Variation in accordance with clause 7 or otherwise as expressly permitted by this MSA or the applicable SOW.

7. Unless expressly stated otherwise, all amounts are in Australian dollars and exclusive of GST. If GST is payable on a taxable supply, the recipient must pay the GST amount in addition to the consideration on receipt of a valid tax invoice.

5.2 Milestone Invoicing

Where Fees are linked to one or more Milestones, the Service Provider may invoice the applicable Fee when the relevant Milestone, or each Milestone in the relevant group of Milestones, has been accepted in accordance with clause 8.2, or when that Fee otherwise becomes payable under the applicable SOW.

5.3 Expenses and pass-through costs

1. The Client is responsible for reasonable third-party costs and expenses expressly included in the applicable SOW or otherwise approved in writing, including licences, stock assets, specialist services, travel, advertising or platform charges and other approved third-party costs.

2. Unless otherwise agreed in writing, the Service Provider may require the Client to pay material third-party costs and expenses in advance and is not required to incur, commit to or fund those costs on the Client's behalf before receiving the required funds.

3. If the Service Provider incurs an approved third-party cost or expense before receiving payment from the Client, or if an actual third-party charge exceeds an amount paid in advance, the Client must reimburse the applicable amount or difference on invoice.

4. If an amount paid in advance for a third-party cost is not ultimately incurred, or the actual cost is less than the amount paid in advance, the Service Provider must credit or refund the unused balance, except to the extent the relevant third-party commitment is non-refundable or non-creditable.

5. The first development payment or deposit specified in a SOW is non-refundable once the Service Provider has reserved resources or commenced work, except to the extent required by law.

6. A SOW may provide for deposits, Milestone payments, recurring fees, time-and-materials billing, fixed fees or another agreed payment structure.

5.4 Invoices

1. Unless a SOW or Care Plan states otherwise, invoices are due within 14 days of issue.

2. If the Client genuinely disputes an invoice, the Client must notify the Service Provider in writing within 7 days after receipt of the invoice, identifying the amount disputed and providing reasonable particulars of the dispute. The undisputed portion of the invoice remains payable when due.

3. The parties must promptly attempt to resolve a disputed invoice in good faith. A dispute raised solely for the purpose of delaying payment does not relieve the Client from its obligation to pay the invoice when due or prevent the Service Provider from exercising its rights under this MSA.

5.5 Overdue amounts

1. Interest accrues on an overdue amount at 10% per annum, calculated daily from the due date until payment, or the maximum lawful rate if lower.

2. The Client must reimburse the Service Provider for reasonable external debt-recovery and enforcement costs actually incurred in recovering an overdue amount, to the extent recoverable by law.

3. Before commencing external debt recovery or proceedings to recover an overdue amount, the Service Provider will give the Client written notice identifying the overdue amount and allowing at least 5 Business Days for payment, unless urgent action is reasonably required to preserve the Service Provider's rights. Nothing in this paragraph requires the Service Provider to comply with clause 21 before recovering an undisputed debt.

5.6 Annual review for recurring Services

For recurring or ongoing Services, the Service Provider may review Fees annually by giving at least 30 days’ written notice. If the Client does not accept the revised Fees, it may terminate the affected recurring Services in accordance with the applicable SOW or Care Plan.

6. Director's Guarantee

6.1 Requirement for guarantee

Where the Client is a corporation, the Client must procure that at least one director of the Client executes the guarantee in this clause in their personal capacity (“Guarantor”). The provision of the guarantee is a condition of the Service Provider entering into this MSA and providing Services under any SOW.

6.2 Guarantee

In consideration of the Service Provider entering into this MSA and each SOW with the Client, the Guarantor unconditionally guarantees to the Service Provider the due and punctual payment by the Client of all Fees and other amounts properly payable by the Client under each SOW.

6.3 Payment on demand

If the Client fails to pay an amount guaranteed under clause 6.2 when it becomes due and payable, the Guarantor must pay that amount to the Service Provider on written demand.

6.4 Limitation of Guarantor's liability

The Guarantor's aggregate liability in respect of each SOW is limited to an amount equal to the total Fees payable under that SOW, as varied from time to time by any Variation accepted in accordance with this MSA. For the avoidance of doubt, where an accepted Variation increases or decreases the total Fees payable under a SOW, the maximum liability of the Guarantor in respect of that SOW increases or decreases by the corresponding amount.

6.5 Continuing guarantee

The guarantee in this clause:

1. applies separately to each SOW entered into under this MSA;

2. continues in respect of amounts properly payable under an SOW notwithstanding completion, termination or expiry of that SOW or this MSA;

3. is not discharged or otherwise affected merely because the Service Provider:

   1. grants the Client time or another indulgence in relation to payment;
   2. delays or refrains from enforcing a right against the Client;
   3. agrees to an accepted Variation; or
   4. compromises or settles an amount payable by the Client, provided that the Guarantor's liability remains subject to the limitation in clause 6.4; and

4. does not require the Service Provider to first commence proceedings against, obtain judgment against, or exhaust any remedy against the Client before making a demand on the Guarantor.

6.6 Scope of guarantee

The Guarantor guarantees the Client's payment obligations only. Nothing in this clause makes the Guarantor personally liable for the performance of the Client's other obligations under this MSA or an SOW, except to the extent that such obligation gives rise to an amount properly payable by the Client that falls within clause 6.2.

6.7 Guarantor acknowledgements

The Guarantor acknowledges that:

1. the Guarantor enters into the guarantee in their personal capacity and not merely in their capacity as a director or representative of the Client;

2. the Guarantor has read and understood the terms of this guarantee and has had the opportunity to obtain independent legal advice before executing it; and

3. the Guarantor's liability is subject to the limitations expressly set out in this clause.

7. Scope Control and Variations

7.1 Change request and variation process

1. Either party may propose an addition to, deletion from or change to the agreed scope, functionality, Deliverables, assumptions, dependencies, Milestones, timing, integrations or technical requirements.

2. The Service Provider may assess the proposed change and, where reasonably practicable, provide a written Variation setting out the effect of the proposed change on the scope, Fees, timing, Milestones, acceptance criteria, third-party costs, assumptions and any other affected requirements.

3. A Variation is binding only when accepted in writing by authorised representatives of both parties. Email approval is sufficient unless the parties require formal signature for the particular Variation.

4. The Service Provider is not required to commence work on a proposed Variation until the Variation has been accepted and any payment required under the Variation has been made.

5. Despite paragraph (d), the Service Provider may take reasonable temporary action without prior acceptance of a Variation where urgent technical, security, legal or third-party action is reasonably necessary to protect systems or data or avoid material disruption. Any material permanent change to scope remains subject to written approval under this clause.

7.2 Scope clarification versus Variation

1. A clarification that merely explains an existing agreed requirement without increasing the work required is not a Variation.

2. A new feature, material redesign, changed integration, additional platform, new user role, changed workflow, increased data migration, new compliance requirement, material rework caused by changed instructions, or other addition beyond the agreed baseline is a Variation unless the SOW expressly includes it.

7.3 Effect on timeline

1. A proposed or accepted Variation may affect sequencing and delivery dates. The Service Provider will use reasonable efforts to identify the impact, but is not bound to preserve the original timeline where additional or changed work makes that impracticable.

2. If the Client requests the Service Provider to pause affected work while a change is considered, resulting standby, remobilisation or rescheduling consequences may be reflected in the Variation.

7.4 Fixed scope

The scope is limited to the Services and Deliverables expressly stated in the applicable SOW. An item is not included merely because it was discussed, recommended in a Discovery Audit, demonstrated, described as desirable, or technically related to an included item.

8. Development, Testing, Acceptance and Handover

8.1 Development environments and review

1. The Service Provider may provide access to development, staging, prototype or test environments for review. Such environments may be incomplete, unstable, use test data and differ from production.

2. The Client must not treat a development or staging environment as production-ready unless the Service Provider expressly confirms otherwise.

8.2 Milestone review and user acceptance testing

1. Where an SOW provides for Milestone review or User Acceptance Testing (UAT), the Service Provider will notify the Client when the relevant Milestone or Deliverable is ready for review. The Client must review and, where applicable, test it against the agreed scope and acceptance criteria within the review period specified in the SOW or, if no period is specified, within 5 Business Days after notification.

2. The Client must provide consolidated written feedback within the applicable review period. Any rejection must identify reproducible failures against the agreed scope or acceptance criteria with sufficient detail for the Service Provider to investigate.

3. A difference in preference, undocumented expectation, new feature request, changed requirement, third-party change or matter outside the agreed scope does not constitute a Defect or valid rejection.

4. The Service Provider will use reasonable efforts to correct any verified Defect that prevents the Milestone or Deliverable from materially satisfying the agreed scope or acceptance criteria and will resubmit the affected item for review.

5. A Milestone or Deliverable is accepted when the Client:

   1. confirms its acceptance in writing;
   2. uses the relevant Deliverable in production;
   3. directs the Service Provider to launch or deploy it to production; or
   4. fails to provide a valid rejection within the applicable review period and does not provide a valid rejection within 2 Business Days after the Service Provider gives a written reminder that the review period has expired.

6. Acceptance under this clause permits the Service Provider to progress the project and does not limit the Client's rights in relation to a latent Defect that could not reasonably have been identified during review, the warranty under clause 9, or any statutory guarantee, right or remedy that cannot lawfully be excluded.

8.3 Launch and production deployment

1. Where the SOW requires Client approval before launch or production deployment, the Service Provider is not required to launch or deploy the relevant Deliverable until that approval has been received and all applicable pre-launch dependencies, account setup requirements and payments have been satisfied.

2. The Client's written direction or approval to launch confirms that the Client has had a reasonable opportunity to review the relevant Deliverables and authorises the Service Provider to proceed with production deployment.

3. A direction or approval to launch does not waive the Client's rights in relation to a qualifying Defect under clause 9 or any statutory guarantee, right or remedy that cannot lawfully be excluded.

8.4 Handover package

1. Subject to payment in full of all Fees then due for the relevant project, the Service Provider will provide the agreed final Deliverables and, where applicable, source-code repository access, agreed credentials, deployment information, Client-owned account access or transfers, and documentation expressly included in the SOW.

2. The Service Provider is not required to transfer ownership of unpaid Deliverables, provide final repository access, release final credentials or complete applicable account transfers before the corresponding Fees have been paid.

3. Final handover does not include the Service Provider's internal systems, internal development environments, internal credentials, proprietary tooling, unrelated code, internal security information or Background IP, except to the extent expressly assigned or licensed to the Client under clause 11.

9. Warranty and Post-Handover Support

9.1 Thirty-day project warranty

1. Unless an SOW states otherwise, the Warranty Period for a Client-specific Deliverable is the period of 30 days commencing on the earlier of: During the Warranty Period, the Service Provider will use reasonable care and skill to correct, without additional professional Fees, any reproducible Defect in a Client-specific Deliverable that causes the Deliverable to materially fail to conform to the agreed scope.

   1. the date on which the relevant Deliverable is first deployed to production; and
   2. where production deployment is delayed for a reason not attributable to the Service Provider, the date on which the relevant Deliverable is ready for production deployment.

2. The Client must notify the Service Provider of the Defect during the Warranty Period and provide reasonable information, cooperation and access required to reproduce, investigate and correct it.

3. This warranty is a defect-correction obligation only. It is not a warranty that any software or Deliverable will be error-free, continuously available or compatible with every future change to a third-party platform, service, API, library, dependency or environment.

4. Nothing in this clause limits any statutory guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.

9.2 Warranty exclusions

The warranty in clause 9.1 does not apply to an issue to the extent caused or contributed to by:

1. a Variation, changed requirement, new feature, enhancement or other matter outside the agreed scope;

2. a modification, configuration change, content change or other change made by or on behalf of the Client after Handover;

3. a modification or change made by an unauthorised third party;

4. misuse of the Deliverable or use contrary to applicable documentation or instructions;

5. a third-party platform, API, library, dependency, service, software, infrastructure or update outside the Service Provider's reasonable control;

6. use of the Deliverable in an unsupported or materially changed environment;

7. the Client's failure or refusal to implement a material update, remediation or instruction reasonably recommended by the Service Provider;

8. a security compromise to the extent outside the Service Provider's reasonable control; or

9. an event outside the Service Provider's reasonable control occurring after Handover and not attributable to the Deliverable as handed over. Work that falls outside the warranty is billable as additional Services unless it is included in an applicable SOW or Care Plan.

9.3 Defect classification

The parties will act reasonably and in good faith in distinguishing between a Defect, an enhancement or new requirement, a matter outside the agreed scope and a third-party issue.

Where the classification of an issue is reasonably disputed, the Service Provider may investigate the issue on a time-and-materials basis. If the investigation confirms that the issue is a Defect covered by the warranty in clause 9.1, the Service Provider will credit or refund the reasonable professional Fees charged for that investigation.

9.4 After the Warranty Period

After the Warranty Period, support, maintenance, updates, security patching, monitoring, bug fixes and enhancements are outside the Services unless expressly included in another applicable SOW or a separate Care Plan entered into between the parties.

10. Suspension

10.1 Suspension for Client default or delay

1. The Service Provider may suspend the affected Services by written notice if:

   1. an amount payable by the Client remains unpaid for 10 Business Days after its due date and the Service Provider has given the Client written notice identifying the overdue amount;
   2. information, access, approval, instruction, content, cooperation or another dependency reasonably required from the Client remains outstanding for 10 Business Days after the Service Provider has given written notice identifying what is required; or
   3. the Client's non-response or other failure to perform an obligation materially prevents the Service Provider from progressing the affected Services and the failure continues for 10 Business Days after written notice requiring the Client to address it.

2. The Service Provider is not required to suspend all Services where the relevant default or delay affects only part of an engagement and may limit the suspension to the affected Services, SOW or Care Plan.

3. Suspension under this clause does not waive or otherwise affect the Client's obligation to pay amounts properly due or any other right or remedy of the Service Provider under this MSA.

10.2 Consequences of suspension

1. During a suspension, the Service Provider is not required to reserve Personnel, resources or the previous delivery slot for the affected Services. Any recommencement is subject to the Service Provider's reasonable resource availability and may require a revised project timetable.

2. The Client remains liable for Fees accrued before and during the suspension to the extent properly payable under the applicable SOW or Care Plan, together with committed third-party costs and reasonable additional work required to secure, preserve or remobilise the affected Services.

3. Suspension does not transfer ownership of unpaid Project IP and does not require the Service Provider to release unpaid Deliverables, final credentials, repositories or account transfers before the corresponding amounts due have been paid.

4. A suspension does not of itself terminate this MSA or the affected SOW or Care Plan.

10.3 Immediate suspension for security or legal risk

The Service Provider may immediately suspend affected access or Services to the extent reasonably necessary where it reasonably considers the suspension necessary to address a material security threat, unlawful instruction, applicable sanctions requirement, material breach of a third-party platform requirement or other material risk of harm.

The Service Provider will notify the Client of the suspension and the general reason for it as soon as reasonably practicable, except to the extent notification is prohibited by law or would materially prejudice the steps being taken to address the relevant risk.

10.4 Reactivation

Following a Client-caused suspension, recommencement is subject to the Service Provider's reasonable resource availability and may require a revised project timetable.

The Service Provider may charge reasonable additional costs actually incurred in securing, preserving, rescheduling or remobilising the affected Services, provided those additional costs are disclosed to the Client before recommencement where reasonably practicable. No automatic reactivation fee applies unless expressly stated in the applicable SOW or Care Plan or otherwise agreed in writing.

11. Intellectual Property

11.1 Client Materials

1. As between the parties, the Client retains ownership of Intellectual Property Rights in Client Materials.

2. The Client grants the Service Provider and its Personnel a non-exclusive, worldwide, royalty-free licence during the Term to use, reproduce, modify, host, transmit and otherwise deal with Client Materials to the extent reasonably necessary to perform the Services.

11.2 Project IP and payment-linked assignment

1. Project IP means Intellectual Property Rights created specifically for the Client in performing the Services under an applicable SOW and embodied in a Deliverable, excluding Background IP and Third-Party Materials.

2. Upon payment in full of the Fees attributable to a Deliverable, the Service Provider assigns to the Client all right, title and interest it holds in the Project IP embodied in that Deliverable, including present and future copyright to the extent permitted by law.

3. Until the relevant Fees are paid in full, Project IP remains vested in the Service Provider and the Client receives only a revocable licence to review and test the relevant Deliverable for project purposes. The Client must not commercially exploit unpaid Deliverables except with the Service Provider’s written consent.

4. The Service Provider will execute reasonable further documents requested by the Client to evidence an assignment that has taken effect under this clause, at the Client’s reasonable cost unless the need arises from the Service Provider’s breach.

11.3 Background IP

1. The Service Provider retains ownership of its Background IP.

2. The Service Provider must not classify bespoke Client-specific code or other Project IP as Background IP merely because it may subsequently be capable of reuse or adaptation for another purpose.

3. To the extent Background IP is embedded in or reasonably necessary to use, maintain, modify or exploit a paid Deliverable, the Service Provider grants the Client a perpetual, worldwide, non-exclusive, royalty-free licence to use, reproduce, modify and permit its service providers to use and modify that Background IP solely as part of, or for the operation, maintenance and exploitation of, the Deliverable.

4. Unless expressly permitted by the applicable SOW, the licence granted under clause 11.3(c) does not permit the Client to extract, separately commercialise, resell, sublicense, distribute or white-label the Background IP independently of the Deliverables. Nothing in this paragraph prevents a transfer of the Deliverables together with a bona fide sale or transfer of the Client's business or the part of its business to which the Deliverables relate.

11.4 Third-Party Materials and open source

1. Third-Party Materials remain owned by their respective owners and are subject to applicable licence terms. The Service Provider does not assign rights it does not own. The Service Provider may use open-source software and commercially available libraries where reasonably appropriate. The Client’s rights in those components are governed by the applicable licences.

2. The Service Provider will not knowingly incorporate Third-Party Materials on terms that materially prevent the Client from using the Deliverable for its agreed purpose without first disclosing that restriction where reasonably practicable.

3. The Service Provider will not knowingly incorporate a component subject to a licence that requires disclosure of the Client’s proprietary source code merely by distribution of the Deliverable, unless disclosed to and approved by the Client or reasonably required by the agreed architecture.

4. The Client is responsible for ongoing third-party licence and usage charges unless the SOW states otherwise.

11.5 Moral rights

To the extent permitted by law, the Service Provider will obtain from relevant Personnel and other creators any consents reasonably necessary to permit the Client and its authorised users to exercise the rights granted or assigned under this clause, including to use, modify, adapt, maintain and exploit paid Deliverables without infringing applicable moral rights, subject to any third-party restrictions disclosed to the Client.

11.6 Repositories and source code

1. During development the Service Provider may manage source code in repositories controlled by the Service Provider or the Client. Final repository access or transfer is subject to final payment and the applicable SOW.

2. The Service Provider is not required to transfer repository history, internal issue tracking, unrelated code, secrets, internal CI/CD credentials or materials not forming part of the Deliverables.

11.7 Portfolio use

1. Unless the Client opts out in writing before public launch, the Service Provider may after public release identify the Client by name and display non-confidential screenshots or a high-level description of completed work in its portfolio and credentials materials, provided it does not disclose Client Confidential Information, non-public security information or sensitive commercial data.

2. The Service Provider must obtain specific consent before publishing a detailed case study containing performance data, testimonials, non-public security information or non-public or sensitive commercial information.

11.8 Restrictions on background IP

The Client must not extract, isolate, reverse engineer, decompile or otherwise use the Background IP separately from the Deliverables, except to the extent that such restriction is prohibited by applicable law.

11.9 Definitions for this clause

1. Client Materials means all materials, data, content, branding, software and Intellectual Property Rights supplied by or on behalf of the Client for or in connection with the Services.

2. Background IP means Intellectual Property Rights owned, developed or acquired by the Service Provider independently of the Client-specific Services, including pre-existing tools, frameworks, libraries, templates, methodologies, know-how, processes, generic components, routines, utilities and other materials or technology of general application, including improvements of general application.

3. Third-Party Materials means materials or technology owned or licensed by a third party, including open-source components and AI tools or outputs to the extent third-party rights apply.

12. AI-Assisted Services

12.1 Permitted use of AI tools

1. The Client acknowledges that the Service Provider may use artificial-intelligence-assisted tools in performing the Services, including for coding, analysis, drafting, content, design ideation, testing, automation and productivity purposes.

2. The Service Provider remains responsible for exercising reasonable professional judgment over its work product and will not treat AI-generated or AI-assisted output as inherently accurate, complete or suitable without appropriate review having regard to the nature of the task and the agreed Services.

3. The Service Provider will exercise reasonable care in selecting and using AI tools having regard to the nature of the task, the information involved and any applicable requirements agreed with the Client.

12.2 Confidentiality, data and AI inputs

1. The Service Provider will use reasonable care when selecting AI tools and configuring their use having regard to the sensitivity of Client Confidential Information and the privacy, security and enterprise settings reasonably available for the relevant tool.

2. Before the relevant Services commence, the Client must notify the Service Provider of any contractual, regulatory, security, secrecy, data-residency or internal-policy restriction applicable to the use of AI tools or to the processing of particular categories of Client information.

3. Where the Client identifies a restriction under paragraph (b), the parties will agree any reasonably required handling controls or changes to the Services before the affected information is processed using an AI tool.

4. A restriction not disclosed before the relevant Services commence may affect the scope, methodology, Fees or timing of the Services and, where applicable, will be dealt with as a Variation under clause 7.

12.3 AI assisted output and intellectual property

1. The allocation of rights under clause 11 applies to AI-assisted Deliverables and AI-assisted output forming part of Project IP to the extent the relevant Intellectual Property Rights are capable of ownership, assignment or licensing under applicable law.

2. To the extent the Service Provider owns or is legally capable of assigning Intellectual Property Rights in AI-assisted output that forms Project IP, those rights will be assigned to the Client in accordance with clause 11.

3. The parties acknowledge that the availability, scope and exclusivity of Intellectual Property Rights in purely or substantially machine-generated material may vary according to applicable law, jurisdiction and the circumstances in which the material was created.

4. The Service Provider does not warrant that an AI provider grants exclusive rights in raw AI-generated material or that every AI-generated or AI-assisted element is independently capable of copyright protection, registration or exclusive ownership.

5. The Service Provider will use reasonable care to review, adapt or integrate AI-assisted output as appropriate having regard to the nature of the agreed Services.

13. Confidentiality

13.1 Mutual confidentiality obligation

1. Each recipient of Confidential Information must:

   1. keep the Confidential Information confidential;
   2. use the Confidential Information only for purposes connected with this MSA and the Services; and
   3. protect the Confidential Information using at least reasonable care.

2. A recipient may disclose Confidential Information:

   1. to its Personnel, professional advisers, insurers, financiers and service providers who reasonably need to know the information for a purpose connected with this MSA or the Services and who are subject to appropriate confidentiality obligations; or
   2. where disclosure is required by applicable law, a court, regulator or other competent authority, subject to clause 13.3.

3. Each recipient remains responsible for its own compliance with this clause and must take reasonable steps to ensure that persons to whom it discloses Confidential Information under paragraph (b)(i) comply with the applicable confidentiality restrictions.

13.2 Confidential information and exclusions

1. Confidential Information means non-public information disclosed by or on behalf of a party that is confidential by its nature or circumstances of disclosure, or is identified as confidential, including business, technical, security, financial, customer, product, source-code, architecture, strategy and project information.

2. Confidential Information does not include information that the recipient can demonstrate:

   1. is or becomes publicly available other than through a breach of this MSA or another obligation of confidentiality;
   2. was lawfully known to the recipient without restriction before disclosure;
   3. is lawfully received from a third party without an obligation of confidentiality; or
   4. is independently developed by the recipient without use of or reference to the discloser's Confidential Information.

13.3 Compelled disclosure

Where a recipient is required by applicable law, a court, regulator or other competent authority to disclose Confidential Information, the recipient must, to the extent legally permitted:

1. give the discloser reasonable prior notice of the required disclosure;

2. disclose only the Confidential Information reasonably required to comply with that requirement; and

3. reasonably cooperate with the discloser, at the discloser's cost, if the discloser seeks a protective order or other lawful means of limiting the disclosure.

13.4 Return and retention

On reasonable written request or termination of the relevant Services, each recipient must return or securely delete the other party's Confidential Information that it no longer reasonably requires, except to the extent retention is reasonably required:

1. by applicable law, regulation, insurance requirement or professional obligation;

2. for legitimate archival, recordkeeping, dispute-management or compliance purposes; or

3. because the information remains in automated backups or disaster-recovery systems and cannot reasonably be separately deleted in the ordinary course. Any Confidential Information retained under this clause remains subject to the confidentiality obligations in this clause 13 for so long as it is retained.

13.5 Equitable relief

Each party acknowledges that unauthorised disclosure may cause harm not adequately remedied by damages and that the affected party may seek urgent equitable relief where available.

13.6 Professional advisers and recordings

1. The Client authorises the Service Provider to disclose relevant Client Confidential Information to legal, accounting and other professional advisers engaged by the Client or otherwise authorised to participate in a Client workstream, to the extent reasonably necessary for that workstream. Such information may include project scope, Discovery Audit materials, recordings or transcripts of lawfully recorded scoping calls, and written responses to follow-up questions.

2. Unless separately authorised by the Client, the Service Provider will not disclose the Client's system passwords, authentication credentials or login credentials to a professional adviser and will instead facilitate relevant technical questions through appropriate communications.

3. Nothing in this clause authorises the recording of a meeting or call. Any recording must be separately authorised or otherwise lawfully made in accordance with the applicable recording terms and law.

14. Privacy, Data and Security

14.1 Privacy roles and lawful instructions

1. Each party must comply with the privacy and data-protection laws applicable to it in connection with the Services.

2. The Client is responsible for determining the purposes for which personal information is collected, used and disclosed in connection with its business and for ensuring that it has lawful authority to provide personal information to the Service Provider for the purposes of the Services.

3. The Service Provider will collect, access, use, disclose and otherwise handle personal information received from or on behalf of the Client only to the extent reasonably necessary to perform the Services, administer the parties' relationship, protect relevant systems or data, comply with applicable law, or as otherwise authorised by the Client.

4. Nothing in this clause makes the Service Provider responsible for the Client's independent privacy or regulatory obligations except to the extent expressly assumed by the Service Provider under an applicable SOW or Care Plan or required by applicable law.

14.2 Data location and residency requirements

1. Unless an applicable SOW expressly imposes a particular data-location or data-residency requirement, the Client acknowledges that cloud providers, development tools, third-party service providers and Personnel used in performing the Services may process, store or access Client data from locations outside Australia.

2. Any requirement for a particular hosting region, data-residency arrangement, regulated-data environment, data-processing agreement or other specific data-handling control must be identified before the relevant SOW is accepted.

3. A requirement identified after acceptance of the relevant SOW that requires a material change to the agreed Services, architecture, tools or delivery arrangements may be dealt with as a Variation under clause 7.

14.3 Security incidents

1. Each party must notify the other without undue delay after becoming aware of a suspected or confirmed security incident that materially affects Client data or systems within that party's responsibility in connection with the Services.

2. The Service Provider's obligation to notify the Client arises once it has sufficient information reasonably available to provide a meaningful notification. The Service Provider may provide further information as its investigation progresses.

3. Each party will provide reasonable information and cooperation available to it to assist the other party in investigating and assessing a relevant security incident, having regard to that party's responsibilities and the scope of the applicable Services.

4. Unless applicable law requires otherwise, the Client remains responsible for determining whether notification to a regulator, affected individual or other third party is required in relation to its business or Client data and for making any such notification.

5. To the extent permitted by law, material remediation, regulatory-response work, forensic investigation or other assistance outside the agreed scope may be charged as additional Services, except to the extent the relevant work is reasonably required as a direct result of the Service Provider's breach of this MSA.

14.4 Backups and data restoration

The Service Provider is responsible for maintaining backups of Client data only where backup services are expressly included in an applicable SOW or Care Plan. Any backup frequency, retention period, restore-testing commitment and restoration obligation is governed by the applicable SOW or Care Plan and clause 17.6.

14.5 Client data following termination

1. Where the Service Provider hosts or manages Client data as part of the Services, any agreed data-export format, transition arrangements or retention period will be as specified in the applicable SOW or Care Plan.

2. If the applicable SOW or Care Plan does not specify a retention period, the Service Provider may delete Client data remaining within systems under its control 30 days after termination or expiry of the relevant Services, provided the Service Provider gives the Client reasonable prior notice of the intended deletion.

3. Paragraph (b) is subject to applicable law and does not require the Service Provider to separately delete data retained in ordinary backups or archival systems before that data is deleted in accordance with the Service Provider's ordinary retention cycles.

4. The Client is responsible for obtaining any required copy or export of Client data before the applicable deletion date.

14.6 Security standard

1. Each party must use reasonable security practices appropriate to the information, systems and responsibilities within its control in connection with the Services.

2. The Service Provider will use reasonable care and skill and reasonable security practices appropriate to the Services it has expressly agreed to provide.

3. Unless expressly included in an applicable SOW or Care Plan, the Service Provider does not provide continuous security monitoring, managed detection and response, penetration testing, vulnerability scanning, compliance certification or any other managed security service merely because it provides development, hosting, maintenance or other technology Services.

4. The Client remains responsible for security matters within its control, including maintaining reasonable access controls, multi-factor authentication where reasonably available, secure credential practices, supported systems and timely action on material security recommendations.

5. The parties acknowledge that security risk cannot be completely eliminated and that effective security may depend on the Client, the Service Provider and relevant third-party providers each performing their respective responsibilities.

6. Nothing in this clause constitutes a guarantee that any system, Deliverable or Service will be immune from vulnerability, compromise, outage, unauthorised access or data loss.

14.7 Client refusal or delay of security remediation

1. If the Service Provider identifies a material security vulnerability or reasonably recommends a material security remediation measure within the context of the Services, it may notify the Client of the vulnerability or recommendation in writing.

2. If the Client elects not to approve, implement or fund the recommended remediation, or materially delays doing so, the Service Provider may record that decision in writing and, where reasonably necessary to manage material security risk, exercise any applicable suspension right under clause 10.

3. To the extent permitted by law, the Service Provider is not responsible for loss to the extent caused or contributed to by the Client's failure or delay in implementing a remediation measure reasonably recommended under this clause.

4. Nothing in this clause excludes or limits liability to the extent it cannot lawfully be excluded or limited.

15. Independent Professional Advisers

15.1 Separate professional engagement

1. Where the Service Provider identifies a matter that may require legal, accounting, taxation, financial, regulatory or other specialist professional advice, the Client remains free to select and engage its own professional adviser unless otherwise agreed.

2. Any professional adviser engaged by the Client is engaged directly by the Client under that adviser's own engagement terms. The professional adviser acts for the Client and is independently responsible for the professional advice, documents and services it provides.

3. A professional adviser is not a Personnel member, agent or subcontractor of the Service Provider merely because the Service Provider introduces the adviser, assists in briefing the adviser or coordinates the relevant workstream.

4. The Service Provider does not supervise, adopt, verify, endorse, warrant or assume responsibility for the professional advice or documents provided by an independently engaged professional adviser merely because the Service Provider coordinates the relevant workstream or is copied on communications.

5. The Client may communicate directly with its professional adviser at any time.

15.2 Coordination by the Service Provider

1. At the Client's request or where expressly included in an applicable SOW, the Service Provider may provide coordination services in connection with an independently engaged professional adviser.

2. Those coordination services may include:

   1. assisting to identify or scope questions for the adviser;
   2. briefing the adviser on relevant project requirements;
   3. coordinating requests for information and responses;
   4. providing information authorised by the Client;
   5. receiving copies of advice or documents where authorised;
   6. tracking the progress of the professional workstream; and
   7. communicating relevant implementation requirements or project status to the Client.

3. The activities described in this clause are coordination Services only and do not constitute the provision by the Service Provider of the underlying legal, accounting, taxation, financial, regulatory or other regulated professional advice.

4. The Client authorises the Service Provider to provide the professional adviser with information reasonably required for the authorised workstream, subject to clauses 13 and 14.

5. The Service Provider will not provide the Client's system passwords, authentication credentials or login credentials to a professional adviser unless the Client separately authorises that access and appropriate security arrangements are agreed.

15.3 Professional adviser engagement and fees

Where the Client separately engages a professional adviser in connection with the Services, the adviser's engagement terms, professional advice and costs disclosure are matters between the Client and the adviser. Any amounts payable by the Client to the Service Provider are governed by the applicable SOW or other agreed payment arrangements.

15.4 Coordination Fee

Any Fee payable to the Service Provider for coordinating a professional-adviser workstream is consideration for the Service Provider's own coordination Services and is separate from any fees payable in respect of the professional adviser's services.

16. Marketing, Advertising and Content Services

16.1 Client responsibility and compliance

1. The Client is responsible for the legality, accuracy and substantiation of its products, services, business model, pricing, promotions, claims and offers, and for holding all licences, approvals, permissions and authorisations required for its business and the relevant marketing activities.

2. The Client is responsible for the availability and fulfilment of its products, services, promotions and offers.

3. Unless an applicable SOW expressly requires the Service Provider to independently verify particular information, the Service Provider may rely on factual information, claims, pricing, offers and other materials supplied or approved by the Client.

4. The Service Provider may refuse to publish, or may pause or withdraw, content, advertising or a campaign where it reasonably believes that doing so may contravene applicable law or applicable platform requirements, pending clarification, amendment or appropriate professional advice.

16.2 Third-party platforms and marketing outcomes

1. Advertising networks, search engines, social-media platforms, marketplaces and other third-party platforms control matters including account approvals, advertising review, policies, algorithms, auctions, rankings, delivery, account restrictions and suspension.

2. The Service Provider does not control those matters and does not guarantee platform approval, account availability or uninterrupted access to any third-party platform.

3. A platform rejection, algorithm or policy change, account restriction, suspension or other third-party platform decision is not of itself a breach by the Service Provider.

4. Marketing, advertising, SEO, content and social-media outcomes may depend on matters outside the Service Provider's control, including market conditions, competitors, algorithms, auctions, platform decisions, Client pricing and offers, and user behaviour.

5. The Service Provider will perform the Services with reasonable care and skill but does not guarantee any particular ranking, impression level, traffic level, click volume, lead volume, conversion rate, revenue, return on advertising spend, user engagement or other commercial or marketing outcome.

6. Additional work reasonably required as a result of a third-party platform change, restriction or decision is outside scope unless expressly included in the applicable SOW and may be dealt with as a Variation under clause 7.

16.3 Advertising budgets and media spend

1. Advertising spend, media spend and third-party platform charges are separate from the Service Provider's professional or management Fees unless the applicable SOW expressly states otherwise.

2. The Client authorises the Service Provider to incur or deploy advertising or media spend only up to the budget stated in the applicable SOW or otherwise approved by the Client in writing.

3. Unless otherwise agreed, advertising spend and platform charges will be paid through Client-owned accounts or Client-approved payment methods.

4. The Service Provider may reasonably reallocate spend within an approved campaign budget in managing the campaign unless the Client has imposed specific written allocation limits.

5. Advertising or media spend committed to a third-party platform is non-refundable to the extent that the relevant platform does not refund or credit that amount.

16.4 Application

This clause 16 applies only to the extent an applicable SOW includes marketing, advertising, SEO, content, social-media, email marketing or related digital marketing Services.

17. Ongoing, Hosting, Maintenance and Care Services

17.1 Care Plans and ongoing services

1. Following completion or launch of a project, the Service Provider may offer the Client an optional ongoing Care Plan covering such hosting, monitoring, maintenance, security patching, backup verification, access review, support, compliance checks and other ongoing services as are specified in the Care Plan.

2. A Care Plan is separately priced and subject to separate acceptance by the Client. The Client is under no obligation to enter into a Care Plan.

3. Each accepted Care Plan is governed by and forms part of this MSA, but does not form part of an SOW unless expressly stated otherwise.

4. The Discovery Audit may identify ongoing operational, security, maintenance or compliance activities that should continue for as long as the relevant product or system remains in operation. Unless expressly assumed by the Service Provider under a Care Plan or other written agreement, responsibility for those activities remains with the Client.

5. Without limiting paragraph (d), after the Warranty Period the Client is responsible for the ongoing security and operation of the product or system, including appropriate security patching, dependency updates, access review, monitoring, backup arrangements and incident response, except to the extent those responsibilities are expressly assumed by the Service Provider under a Care Plan or other written agreement.

17.2 Maintenance versus new work

1. Maintenance means work reasonably necessary to preserve agreed existing functionality against ordinary Defects and to perform dependency updates expressly included within the applicable SOW or Care Plan.

2. Unless expressly included in the applicable SOW or Care Plan, new features, redesigns, new integrations, migrations, material upgrades, material architectural changes and work required because of material third-party platform changes constitute additional Services rather than maintenance.

3. Additional work requested or required outside the agreed ongoing Services may be dealt with as a Variation under clause 7.

17.3 Support hours and response time

1. Unless an applicable SOW or Care Plan states otherwise, support Services are provided during the Service Provider's ordinary Business Hours in New South Wales.

2. Any response time stated in a SOW or Care Plan is a target for responding to or commencing assessment of the relevant request and is not a guaranteed resolution time unless the SOW or Care Plan expressly states otherwise.

3. Emergency or after-hours Services are provided only where expressly included in an applicable SOW or Care Plan or separately agreed and may attract additional Fees.

17.4 Security services

1. Where an applicable SOW or Care Plan expressly includes security Services, those Services are limited to the activities, systems, frequencies and response obligations specified in that SOW or Care Plan.

2. Security Services are intended to reduce security risk but cannot eliminate the possibility of vulnerability, compromise, unauthorised access, outage or data loss and do not constitute a guarantee that any system will be immune from attack or security incidents.

3. The parties' general security responsibilities, including the consequences of a Client's refusal or delay in implementing recommended security remediation, are governed by clause 14.

17.5 Third-party outages, changes and pass-through costs

1. The Service Provider is not responsible for an outage, interruption, degradation, discontinued service, licence change, API change, platform change or other event to the extent caused by a third-party provider and outside the Service Provider's reasonable control.

2. Where a third-party provider increases a fee or charge payable in connection with the ongoing Services, and that charge is payable by or passed through to the Client under the applicable SOW or Care Plan, the Service Provider may pass through the applicable increase to the Client and will notify the Client in writing as soon as reasonably practicable after becoming aware of it.

3. Paragraph (b) does not permit the Service Provider to increase a fixed professional Fee payable to the Service Provider merely because the Service Provider's own costs have increased.

4. Additional work reasonably required as a result of a third-party outage, discontinued service, licence change, API change or platform change is outside scope unless expressly included in the applicable SOW or Care Plan and may be dealt with as a Variation under clause 7.

17.6 Backups and data restoration

1. The Service Provider is responsible for maintaining backups only where backup Services are expressly included in the applicable SOW or Care Plan.

2. Where backup Services are included, the applicable SOW or Care Plan must specify the agreed backup frequency, retention period and any restore-testing commitments.

3. No backup system eliminates all risk of data loss or corruption. The Service Provider does not warrant that every backup will be free from corruption or that every item of data will be capable of restoration.

4. Where the Service Provider has agreed to maintain backups, its restoration obligation is, to the extent permitted by law, limited to using reasonable care and skill to restore affected data from the most recent usable backup available within the agreed backup and retention regime.

5. Any recovery, reconstruction, forensic or restoration work beyond the backup Services expressly included in the applicable SOW or Care Plan is additional work unless otherwise agreed or required as a remedy for the Service Provider's breach.

18. Warranties and Australian Consumer Law

18.1 Mutual authority

Each party warrants that it has the power and authority to enter into and perform its obligations under this MSA.

18.2 Service Warranty

1. The Service Provider warrants that it will perform the Services with reasonable care and skill and substantially in accordance with the applicable SOW or Care Plan.

2. The warranty in clause 9 applies separately to qualifying Defects in Client-specific Deliverables during the applicable post-Handover Warranty Period.

3. Except as expressly stated in this MSA or an applicable SOW or Care Plan, and to the maximum extent permitted by law, the Service Provider does not warrant that any software, Deliverable or Service will:

   1. be uninterrupted or completely error-free;
   2. be suitable for a purpose or requirement that was not expressly included in the agreed scope;
   3. remain compatible with every future change to a third-party platform, API, service, library, dependency or environment; or
   4. achieve any particular commercial, financial, marketing, regulatory or other outcome.

4. Nothing in this clause excludes, restricts or modifies any statutory guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.

18.3 Australian Consumer Law (ACL)

1. Nothing in this MSA excludes, restricts or modifies any consumer guarantee, right or remedy under the Australian Consumer Law or any other applicable law that cannot lawfully be excluded, restricted or modified.

2. To the extent permitted by law, including section 64A of the Australian Consumer Law, where a guarantee under the Australian Consumer Law applies to Services supplied under this MSA and the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Service Provider's liability for failure to comply with that guarantee is limited, where it is fair and reasonable for the Service Provider to rely on that limitation, at the Service Provider's option, to:

   1. supplying the Services again; or
   2. paying the cost of having the Services supplied again.

3. This clause applies despite any other provision of this MSA that purports to exclude or limit liability.

19. Limitation of Liability

19.1 Excluded loss

1. To the maximum extent permitted by law, neither party is liable to the other for indirect, consequential or special loss, or loss of profit, revenue, anticipated savings, business opportunity, goodwill or reputation, arising out of or in connection with this MSA, except to the extent such loss forms part of a liability that cannot lawfully be limited.

2. The Service Provider is not liable to the extent loss is caused by Client Materials, Client instructions, Client-side changes, unauthorised access by persons outside the Service Provider’s control, failure by the Client to follow security requirements, third-party outages or changes, or the Client’s failure to maintain licences, accounts or payments.

3. This clause does not excuse the Service Provider from liability to the extent its own breach materially caused or contributed to the relevant loss.

19.2 Service Provider liability cap

Subject to clause 18.3:

1. the Service Provider's total aggregate liability arising out of or in connection with an SOW, the Services supplied under that SOW and any related acts or omissions is limited to 100% of the total Fees payable under that SOW. This cap applies separately to each SOW; and

2. the Service Provider's total aggregate liability arising out of or in connection with a Care Plan, the Services supplied under that Care Plan and any related acts or omissions is limited to 100% of the Fees paid or payable under that Care Plan in the 12 months immediately preceding the event giving rise to the liability. This cap applies separately to each Care Plan.

19.3 Contributory acts and mitigation

A party’s liability is reduced to the extent the loss was caused or contributed to by the other party or a person for whom the other party is responsible, and each party must take reasonable steps to mitigate loss.

19.4 No other indemnities or releases

Except for the indemnity expressly provided under clause 3.4(c), this MSA does not create any other contractual indemnity, hold-harmless obligation or release in favour of either party. Rights and liabilities are otherwise determined under the substantive obligations, limitations and remedies in this MSA and applicable law.

20. Term and Termination

20.1 Term

This MSA begins on the Effective Date and continues until terminated under this clause. Termination of one SOW or Care Plan does not automatically terminate this MSA or any other SOW or Care Plan.

20.2 Termination of umbrella agreement for convenience

Either party may terminate this MSA on 30 days’ written notice, but termination does not by itself cancel an active SOW or Care Plan unless that SOW or Care Plan is also terminated in accordance with its terms or this clause.

20.3 Termination for breach

1. If an SOW or Care Plan remains suspended because of Client non-payment or non-response for 30 days, the Service Provider may terminate that SOW or Care Plan on written notice on the basis of prolonged suspension and abandonment without affecting accrued payment rights.

2. Termination does not require the Service Provider to maintain the original project team, environment or delivery slot for any later recommencement.

3. The Service Provider may suspend or terminate affected Services where it reasonably believes continued performance would:

   1. breach law, third-party terms or professional obligations;
   2. create a material security risk that cannot reasonably be mitigated; or
   3. expose the Service Provider or any member of its Personnel to threatening, abusive, harassing, discriminatory or otherwise seriously inappropriate conduct by the Client or any person acting on the Client's behalf, creating an unacceptable risk to their safety or wellbeing, after consulting the Client where practicable, except where the Service Provider reasonably considers immediate suspension or termination necessary having regard to the nature or seriousness of the relevant circumstances.

4. A party may terminate this MSA, an affected SOW or an affected Care Plan by written notice if the other party commits a material breach and, where the breach is capable of remedy, fails to remedy that breach within the period reasonably specified in a written notice requiring the breach to be remedied.

5. A party may terminate immediately if the other party becomes insolvent or if continued performance would be unlawful.

20.4 Client termination mid-build

1. The Client may terminate a development SOW on written notice. The Client must pay:

   1. all Fees for work completed up to the effective termination date;
   2. approved non-cancellable third-party commitments; and
   3. any other amount expressly payable on early termination under the SOW. The initial development deposit remains non-refundable except to the extent required by law.

2. After payment of amounts due, the Service Provider will hand over the work product existing at termination in its then-current state, together with Project IP for which the corresponding Fees have been paid, subject to clause 11 and reasonable technical limitations.

20.5 Effect of termination

1. Termination does not affect any rights, liabilities or payment obligations accrued before termination.

2. For managed environments, subject to payment of amounts due, the Service Provider will transfer agreed credentials and, where included in the Services, provide any agreed final backup or data export. Data retained by the Service Provider may be deleted after the applicable retention period, subject to applicable law and ordinary backup or archival retention practices.

20.6 Exit assistance

At the Client's request, the Service Provider will provide reasonable transition assistance, including reasonable knowledge transfer and cooperation with a replacement provider. Unless otherwise agreed in the applicable SOW or Care Plan, that assistance will be charged at the Service Provider's then-current rates and is subject to payment of outstanding amounts and reasonable security requirements. The Service Provider is not required as part of any transition or exit assistance to disclose or transfer its Background IP, internal systems, internal security information, unrelated source code or third-party confidential information.

20.7 Accrued IP rights

Termination does not reverse or otherwise affect an assignment of Project IP that has already taken effect under clause 11. Any Project IP that has not transferred to the Client at the time of termination remains subject to clause 11.

21. Dispute Resolution

21.1 Notice and escalation

1. A party claiming a dispute must give written notice describing the dispute and the outcome sought.

2. Within 5 Business Days after the notice, authorised representatives must meet by telephone, video conference or in person and use reasonable endeavours to resolve the dispute in good faith.

21.2 Mediation

1. Unless the Agreement or affected SOW or affected Care Plan has been validly suspended or terminated, each party must continue performing undisputed obligations while a dispute is being resolved, where reasonably practicable, unless agreed otherwise.

2. The Client must continue paying undisputed amounts when due.

3. If the dispute is not resolved within 10 Business Days after the meeting, either party may refer it to mediation in New South Wales administered by a mediator agreed by the parties. The parties share the mediator’s fees equally and otherwise bear their own costs.

21.3 Proceedings

Neither party may commence court proceedings concerning the dispute until the mediation has concluded or 20 Business Days have passed after a mediation request, whichever occurs first, except for urgent interlocutory or injunctive relief or recovery of an undisputed debt.

22. Relationship of Parties

1. The parties are independent contracting parties. Nothing in this MSA creates a partnership, joint venture, employment, fiduciary or agency relationship, except to the limited extent the Client expressly authorises the Service Provider to perform a particular administrative act on its behalf, such as administering a Client-owned account.

2. Neither party may bind the other except as expressly authorised in writing.

3. During the Term and for 6 months after the later of completion or termination of the Services through which the Client became aware of the relevant person, the Client must not, without the Service Provider's prior written consent, directly solicit for employment or engagement any member of the Service Provider's Personnel whom the Client became aware of through the performance of those Services. This paragraph does not prevent the Client from employing or engaging a person who responds independently to a general public advertisement not specifically directed at that person, or who approaches the Client without prior solicitation by or on behalf of the Client.

23. Publicity and Use of Names

1. Except as permitted by clause 11.7, neither party may issue a press release or imply endorsement by the other without prior written consent.

2. Nothing prevents a party from making a disclosure required by law or a stock exchange, regulator or court.

24. Notices

A notice under this MSA must be in writing and sent by email:

1. if to the Service Provider, to andy@awlabs.com.au, or any replacement email address notified by the Service Provider in writing for notices; and

2. if to the Client, to the email address used by the Client in connection with the negotiation or execution of this MSA, or any replacement email address notified by the Client in writing for notices. An email notice is taken to be received on the next Business Day after transmission unless the sender receives an automated failure notice.

25. Assignment and Corporate Changes

1. The Client must not assign or novate this MSA without the Service Provider’s prior written consent, not to be unreasonably withheld where the proposed assignee has equivalent financial and operational capacity.

2. The Service Provider may assign or novate this MSA in connection with a bona fide internal restructure, merger, sale of business or transfer of substantially all relevant business assets, on written notice to the Client, provided the successor assumes the Service Provider’s obligations.

26. General

26.1 Entire MSA and reliance

1. This MSA and the documents incorporated under clause 1 constitute the entire agreement concerning their subject matter and supersede prior agreements, proposals and representations concerning that subject matter.

2. Nothing in this clause excludes liability for misleading or deceptive conduct or another liability that cannot lawfully be excluded.

26.2 Variation of MSA

A variation to this MSA itself must be in writing and accepted by authorised representatives of both parties. Project Variations are governed by clause 7.

26.3 Waiver

A waiver is effective only if given in writing and only for the particular instance stated. Delay or failure to exercise a right is not a waiver.

26.4 Severability

If a provision is invalid or unenforceable, it is to be read down to the minimum extent necessary and, if that is not possible, severed without affecting the remainder.

26.5 Cumulative rights

Except where this MSA expressly provides otherwise, rights and remedies are cumulative and do not exclude rights or remedies available by law.

26.6 Further acts

Each party must do reasonable further acts and execute reasonable documents necessary to give effect to this MSA, at the requesting party’s cost unless the need arises from the other party’s breach.

26.7 Electronic execution and counterparts

This MSA and any SOW or Variation may be executed electronically and in counterparts. All counterparts together constitute one instrument.

26.8 Records and audit trail

Electronic records of approvals, SOW acceptances, Variations, project-management entries and email instructions may be used as evidence of the parties’ communications and project administration.

26.9 No contra proferentem

This MSA is not to be construed against a party merely because that party or its advisers prepared it.

26.10 Business Days and time

Unless stated otherwise, references to time are to Sydney, New South Wales time and Business Day excludes weekends and public holidays in New South Wales.

26.11 Survival

Clauses concerning payment, intellectual property, confidentiality, privacy and data, professional advisers, liability, termination consequences, dispute resolution and any provision intended by its nature to survive continue after termination.

27. Force Majeure

1. A party is not liable for a failure or delay in performing an obligation under this MSA to the extent that the failure or delay is caused by an event beyond that party's reasonable control, including natural disaster, fire, flood, epidemic or pandemic, war, terrorism, civil disturbance, industrial action, government action, widespread telecommunications or internet failure, or material failure or outage of utilities, cloud infrastructure or other critical third-party technology services.

2. The affected party must notify the other party as soon as reasonably practicable after becoming aware that the event is materially affecting its performance and must use reasonable efforts to mitigate the effect of the event and resume performance.

3. The affected obligation is suspended only to the extent and for the period that performance is prevented or materially delayed by the event, and any affected Milestone or delivery date will be reasonably extended having regard to the effect of the event.

4. This clause does not excuse or delay the Client's obligation to pay an amount that became due before the force majeure event or an amount properly payable for Services already performed or costs already incurred.

5. If a force majeure event prevents a material part of the affected Services from being performed for more than 30 consecutive days, either party may terminate the affected SOW or Care Plan by written notice. Termination under this paragraph does not affect accrued rights or amounts payable for Services performed or costs incurred before termination.

28. Governing Law and Jurisdiction

This MSA is governed by the laws of New South Wales, Australia. Subject to clause 21, each party submits to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals from them.

29. Definitions and Interpretation

29.1 Definitions

Agreement

means this Master Services Agreement together with each accepted SOW, each accepted Care Plan, each accepted Variation and any document expressly incorporated by reference.

Background IP

has the meaning given in clause 11.9(b).

Business Day

a day other than a Saturday, Sunday or public holiday in New South Wales.

Care Plan

has the meaning given in clause 17.1.

Client Materials

has the meaning in clause 11.1.

Confidential Information

has the meaning in clause 13.2.

Defect

means a reproducible material failure of a Deliverable to conform to an express requirement or acceptance criterion in the applicable SOW, excluding a new requirement, enhancement or an excluded cause under clause 9.

Deliverable

an output expressly identified as a deliverable in a SOW.

Discovery Audit

means a separately purchased discovery, scoping or assessment engagement performed by the Service Provider under separate terms of engagement, the final approved output of which may subsequently be incorporated into an SOW in accordance with clause 1.3.

Effective Date

means the date on which the last of the Service Provider and the Client executes this MSA.

Fees

fees, charges and approved expenses payable to the Service Provider under this MSA, a SOW, Care Plan or Variation.

Handover

the point at which the Service Provider provides the agreed final project Deliverables or production access following satisfaction of the applicable payment and acceptance requirements.

Intellectual Property Rights

all present and future copyright, patent, design, trade mark, domain name, circuit layout, database, trade secret, confidential information and analogous proprietary rights, whether registered or unregistered, and applications for them.

Milestone

a project stage or delivery point identified in a SOW.

Personnel

a party’s employees, officers, contractors, subcontractors and agents.

Project IP

has the meaning in clause 11.2(a).

Services

services supplied or to be supplied by the Service Provider under an accepted SOW or Care Plan, including where applicable development, technology, digital, marketing and ongoing services.

SOW

a document accepted by the parties that describes project-specific Services and commercial terms and incorporates this MSA.

Term

the period described in clause 20.1.

Third-Party Materials

has the meaning given in clause 11.9(c).

Variation

a written change to a SOW accepted under clause 7.

Warranty Period

has the meaning given in clause 9.1(a).

29.2 Interpretation

In this MSA, unless the context requires otherwise:

1. headings and underlinings are for convenience only and do not affect interpretation;

2. the singular includes the plural and vice versa;

3. other parts of speech and grammatical forms of a defined word or phrase have corresponding meanings;

4. the meaning of general words is not limited by specific examples, and “includes”, “including” and similar expressions are not words of limitation;

5. a reference to a person includes an individual, company, corporation, partnership, joint venture, association, trust, government authority and other legal entity, and includes that person's successors and permitted assigns;

6. a reference to a party includes that party's successors and permitted assigns;

7. a reference to legislation includes any amendment, re-enactment or replacement of that legislation and any subordinate legislation made under it;

8. a reference to a document or agreement includes that document or agreement as amended, supplemented, replaced or novated from time to time;

9. a reference to this MSA includes this MSA, each accepted SOW, each accepted Care Plan, each accepted Variation and any document expressly incorporated by reference;

10. a reference to a clause or Schedule is a reference to a clause of, or Schedule to, this MSA, and a reference to a clause includes its subclauses;

11. a reference to writing or written communication includes email and other electronic written communication capable of being retained;

12. an obligation not to do something includes an obligation not to cause, permit or allow that thing to be done;

13. a reference to a party doing something includes the party doing that thing through its Personnel, agents or other persons acting on its behalf to the extent applicable in the circumstances;

14. if an act is required to be done on a day that is not a Business Day, it must be done on the next Business Day;

15. a provision of this MSA is not to be interpreted against a party merely because that party prepared, proposed or drafted the provision or any part of it; and

16. if there is any inconsistency between this MSA, an SOW, a Variation or another document forming part of the MSA, the order of precedence is determined in accordance with clause 1.5.