PowerHouse Hub Licence and Service Level Agreement

Terms and Conditions for the Supply, Hosting and Management of the PowerHouse Platform


  • The Developer (Mediasphere Holdings Pty Ltd ACN 120 008 924 of Suite 30612, Level 6, Southport Central 3 Commercial, 9 Lawson Street, Southport, Queensland 4215) has developed the branded Aged Care Hub software suite which is a software application to host and manage content and datasets on a cloud-based platform.
  • The Sales Agent (The Aged Care Group Pty Ltd ACN 620 659 958 of 74 Smith Street, SOUTHPORT QLD 4215) has provided the Customer with a license to an application/s in the Aged Care Hub software suite.
  • The Customer wishes to subscribe to a non-exclusive license for the Mediasphere web training platform to host, manage and maintain your website and/or training portal in accordance with the Order Specification.

It is agreed

Definitions and interpretation

Definitions: In this Agreement:

  1. Agreement means this document, the Order Specification and any other schedule or annexure to this document;
  2. Authority to Proceed is the execution instrument at the end of the Customer Order Specification.
  3. Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
  4. Business Hours means between the hours of 9.00am and 5.00pm on any Business Day.
  5. Commencement Date means the date when this Agreement is signed by both parties;
  6. Confidential Information means information relating to:
    1. the design, specification and content of the Website that is not publicly available;
    2. information contained on the Customer’s computer network systems;
    3. personnel details, policies, business strategies or any other information or material provided to the Developer by the Customer;
    4. the Development Tools and Templates;
    5. the terms of this Agreement;
    6. any proprietary information of either party that is not publicly available; and
    7. any other information which is stated to be confidential or which, by its nature, should reasonably be considered to be confidential information.
  7. Customer Content means all text, pictures, sound, graphics, video, embed codes, documents, files and other data loaded and stored in the Website database;
  8. Customer Deliverables expressly excludes the Developer Tools and Templates and means whether created before or after the date of this Agreement all textual, graphical, audio and other material displayed on the Website which are custom developed by the Developer for the Customer;
  9. Data Protection Act means while they remain in force the Data Protection Act 1998, the European Data Protection Directive, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, the Electronic Communications Data Protection Directive, the Privacy and Electronic Communications (EC Directive) Regulations 2003, once it comes into force the European General Data Protection Regulation and any other laws and regulations relating to the processing of personal data and privacy which apply to a Party and, if applicable, the guidance and codes of practice issued by the Information Commissioner or other relevant data protection or supervisory authority;
  10. Developer Tools and Templates means the software developed prior to the date of this Agreement, or otherwise developed outside of the scope of this Agreement, that is proprietary to the Developer or licensed to the Developer by third parties.
  11. Hosting Fee means the annual fee that is payable by the Customer to the Developer for the annual hosting of the website;
  12. Installation Date means the date or period for installation of Software as set out in the Contract Details for the Works;
  13. Intellectual Property Rights means any and all now known or subsequently known tangible and intangible:
    1. rights associated with works of authorship, including but not limited to copyrights and moral rights;
    2. trademark and trade name rights and similar rights;
    3. trade secret rights;
    4. patents, designs, algorithms and other industrial property rights;
    5. all other intellectual and industrial property rights of every kind and nature throughout the universe and however designated (including logos, rental rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise;
    6. all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force; and
    7. all rights and causes of action for infringement or misappropriation of any of the foregoing;
  14. Internet means the world-wide connection of computer networks providing for the transmission of electronic mail, on-line information, information retrieval and file transfer protocol;
  15. Intranet is a private network that uses Internet protocols to securely share any part of an organisation's information or operational systems within that organisation.
  16. Maintenance Services means the supply to the Licensee of Updates and Upgrades;
  17. Off-peak Times means any time between 5:00pm and 11:59pm or 12:00am and 8:30am UK time or at any time on a Saturday or Sunday.
  18. Order Specification means a written order from the Customer to the Developer describing the services outside the Works and Software it wishes to obtain from the Developer;
  19. Personal Data has the meaning given to it under the Data Protection Act 1998 and shall include Sensitive Personal Data;
  20. Product means one of the software applications in the Aged Care Hub software suite. The main Product titles include Aged Care Select, Aged Care Onboard, Aged Care Talent, Aged Care Perform and Aged Care Certify.
  21. Release means, in respect of an Update or Upgrade, the release of that Update or Upgrade (as the case may be) to the customers of the Licensor generally] (and "Released" shall be construed accordingly);
  22. Sensitive Personal Data has the meaning given to it under the Data Protection Act 1998
  23. Services means services under this contract for the provision of the works or additional services relating to web hosting, the maintenance of the Website and all other services reasonably required to run the website by the Developer to the Customer;
  24. Server System means the hardware and software system owned or licensed by Customer on which the Website resides and that maintains the Website on the World Wide Web and which may change from time to time;
  25. Site means the agreed hardware system for the hosting of the Server Systems;
  26. Software means the Developer Tools and Templates and any other computer program or programs consisting of a set of instructions or statements in machine readable form, and each and every component thereof to the extent that they are used in relation to the Website or produced under additional services requested by this Agreement;
  27. Software License means the permission to use the Mediasphere software on a non-exclusive basis and subject to the terms and conditions in this agreement. Access to the License is granted on the payment of an annual license fee.
  28. Specifications means the requirements for the Customer Deliverables;
  29. Term means a period of one (1) year which can be renewed on an annual license basis if granted by the Developer;
  30. Third Party Materials means any software or other material owned by a company or individual other than Developer or Customer which is employed in the Website and is supplied by the Developer;
  31. Update means a hotfix, patch or minor version update to the Software;
  32. Upgrade means a major version upgrade of the Software.
  33. Website means the application which is accessible on the organisation’s Intranet and Internet through the World Wide Web, provides multimedia content through a graphical user interface, and which consists of documents, pictures, sound, graphics, video and other data embodied in the application supplied by Developer pursuant to the terms and conditions of this Agreement;
  34. Website Graphics means the custom graphics developed for the Website by Developer and included in the Customer Deliverables;
  35. Works means this agreement for the design and installation of Customer’s Website and as per Order Specification and the terms of this Agreement; and
  36. World Wide Web means a method of representing and obtaining graphical data and linking data items used by Internet users.

Interpretation Reference to:

  1. one gender includes the others;
  2. the singular includes the plural and the plural includes the singular;
  3. a person includes a body corporate;
  4. a party includes the party’s executors, administrators, successors and permitted assigns;
  5. a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
    1. that Statutory Provision as amended or re-enacted from time to time; and
    2. a statute, regulation or provision enacted in replacement of that Statutory Provision; and
  6. Money is Great British Pounds (£GBP), unless otherwise stated.
  7. “Including” and similar expressions are not words of limitation.
  8. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
  9. Headings are for convenience only and do not form part of this Agreement or affect its interpretation.
  10. A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.
  11. If an act must be done on a specified day which is not a Business Day, it must be done on the next Business Day.

1. Term

i. This Agreement commences and is deemed to have effect on the date that the Authority to Proceed is executed by the Customer and continues for the Term unless terminated in accordance with the Termination clauses. Unless stated otherwise, the term of the license is 12 months with the option to renew for an additional subsequent 12-month term based on the payment of the annual license fee.

2. Supply and Installation of the Website

i. The Developer must install the Website and provide the Services upon the terms of this Agreement.

ii. The Developer agrees to provide the Website and the Services in accordance with the Order Specification.

iii. The Developer must develop and install by the Installation Dates the Website in a competent, proper, efficient and timely manner in accordance with this Agreement.

iv. The Developer must supply and install the Website to the Site in accordance with the Order Specification and any agreed implementation plan and must do so in such a way as to avoid any reduction of or adverse effect on the then current business of the Customer.

3. Order Specification and Payment Terms

i. The Developer will work in good faith with the Customer to implement an Order Specification.

ii. The Order Specification will include all project deliverables and document all fees associated with the project.

iii. The Customer signs the Authority to Proceed on the Order Specification to commence the project and accept the project fees. The Customer signs the Authority to Proceed to agree with the terms and conditions in this Terms and Conditions for the Supply, Hosting and Management of Your Aged Care Platform agreement.

iv. The Customer agrees to pay the Developer on or before the payment date included on the Order Specification and Customer invoice. In the event of a non-payment or overdue payment, 15 days after the payment date, Mediasphere may deactivate your site. A site-reinstatement fee may apply. A service fee of 10% may be charged to all overdue accounts.

4. Assignment, licensing and allocation of rights in the Website

i. The Developer and Customer agree that on the Installation Date the Website will consist of:

  1. Customer Deliverables;
  2. Developer Tools and Templates; and
  3. The Terms and Conditions.

5. Ownership of Developer Tools and Templates

i. The Developer and Customer confirm that the Developer retains ownership of all rights, title and interest in and to the Developer Tools and Templates, including, without limitation, all applicable Intellectual Property Rights to the Developer Tools and Templates. The Developer retains all right, title and interest in and to all tools and other information and materials used in the creation or development of the Developer Tools and Templates.

6. Developer Tools and Templates License

i. The Developer grants to the Customer (and its Related Bodies Corporate) a fully paid, non-exclusive licence for the Term, to use, publicly perform, publicly display and digitally perform the Developer Tools and Templates solely for the purpose and to the extent necessary to operate the Website.

ii. The licence granted in this agreement is revocable and is only for the Term of this Agreement.

iii. The Developer retains the right not to renew the license for an additional Term after the expiry of the original Term if the Developer intends to enact its rights under this clause 6 (iii) then the Developer shall provide not less than 90 days’ notice to the Customer.

iv. The Developer may also terminate the licence granted with 30 days written notice prior to the expiry of the Term where there are reasonable grounds for alleging the Customer is in breach of a provision of this Agreement when the breach relates solely to:

  1. the failure of the Customer to make a payment under this Agreement; or
  2. A material breach of the Developer’s Intellectual Property Rights in the Developer Tools and Templates by the Customer or its employees.

7. Customer Content and Customer Deliverables license

i. The Customer confirms its grant to the Developer of a non-exclusive, royalty-free licence for the Term to reproduce, distribute and digitally perform any Customer Content or Customer Deliverables only on or in conjunction with the Website, solely for the purpose and to the extent necessary to perform the Developer’s obligations under this Agreement.

8. Ownership of Customer Content

i. As between the Developer and Customer, any Customer Content stored or delivered on the website under this Agreement or otherwise, and all Intellectual Property Rights therein, at all times remains the property of the Customer or its licensor or Website subscribers. The Developer has no rights to such Customer Content, other than the limited right to use such content for the purpose expressly set out in this Agreement.

9. Access to Server Systems

i. The Customer agrees to provide the Developer with reasonable information and access to its relevant Server Systems (including without limitation, read, write and execute privileges where such privileges relate to the Website) to the extent necessary for the Developer to perform its obligations under this Agreement.

ii. When accessing the Server Systems, the Developer must comply with any reasonable policies or directions given by the Customer.

10. Hosting of Customer Content

i. The Developer will store all Customer Content on servers located on Rackspace servers in London for the United Kingdom and northern hemisphere clients and Sydney for Australian and southern hemisphere, unless otherwise specified.

ii. The Developer will comply with their Data Information and Security Policy at all times.

iii. The Developer will not store, disclose or otherwise permit access to Customer Content to anyone located outside of the countries of operation.

11. Developer’s warranties

i. The Developer warrants that all Software, supplied under this Agreement, will upon installation conform in all material respect to their Specifications and for the period of this agreement.

ii. The Developer will take all the reasonable steps to ensure that the software operates in accordance with the contract.

12. Warranties and covenants

i. The Developer warrants as at the Commencement Date that:

  1. The Customer Deliverables and Developer's Tools and Templates used in relation to the Website do not infringe the Intellectual Property Rights of any third party;
  2. No proceedings have been instituted by any third party against the Developer for the infringement of that party's Intellectual Property Rights by the Developer’s Intellectual Property;
  3. No proceedings have been instituted by any third party against the Developer seeking to challenge the validity of the Developer’s Intellectual Property Rights in the Development Tools and Templates;
  4. The Deliverables will be provided in accordance with this Agreement, including the Order Specification; and
  5. Any documentation provided as a part of the Deliverables will be adequate to enable a reasonably competent professional computer operator to operate the Website.

13. Services

i. From the Commencement Date, the Developer agrees to perform the Services for the customer in return for the License Fee and any agreed additional fees as set out in the Order Specification.

ii. After the project commences, the Customer has the right to request project variations to cover out-of-project-scope changes to the project. Project variations requested by the Customer and not described in the Order Specification will be managed with a written scope of work, delivery dates and aligned fees that the client can approve or reject.

iii. On and from the Commencement Date and until terminated in accordance with its terms, the Developer warrants that:

  1. it will perform all Services in a professional manner, using appropriately qualified and trained personnel and in accordance with prevailing industry standards;
  2. Performance of the Services by the Developer does not violate the terms of any other agreement between the Developer and a third party.

14. Upgrades

i. The Developer shall keep the Customer reasonably informed during the Term of its plans for the release of Upgrades; however, except to the extent that the parties agree otherwise in writing, the Licensor shall have no obligation to release Upgrades with features requested by the Licensee or to take into account the opinions of the Licensee in relation to plans for the release of Upgrades.

ii. The Developer may produce Upgrades at least [once in each calendar year] during the Term and shall make such Upgrades available to the Customer.

iii. The Developer shall give to the Customer [at least 30 Business Days'] prior written notice of [the Release of an Upgrade].

iv. The Developer may apply each Upgrade to the Software within the period of [90 Business Days following Release].

v. The Developer reserves to right to charge a cost recovery fee for the migration of the Customer’s content and database to the updated version of the Product. The Developer will provide the Customer with the scheduled Upgrade fee in writing [at least 30 Business Days before the Upgrade].

15. Support

i. Application: The service levels are provided in respect of the server used in the provision of the Services.

ii. Email Support: Support consists of responding to queries logged by the Customer’s administration users via an email submission, Monday to Friday, 9:00am to 5:00pm locally, excluding public holidays.

iii. Extended Support: The Customer may wish to license an extended support contract which provides access to phone support. This extended support will be included on the Order Specification.

iv. Contact Details: Email: support@mediasphere.com.au

v. Telephone and Support Requests: The Customer may contact the Developer on a range of issues including:

  1. Reboot request
  2. Backup management and restore
  3. Operating system re-Installation
  4. Operating system updates
  5. Operating system troubleshooting

vi. Logging Support Call: The customer will log all internet support issues to: support@mediasphere.com.au. After logging a support issue, the Customer will receive a support ticket number that will be used as a reference for the job.

vii. The Developer’s Response and Resolution Times for Internet Support

Nature of Defect/Fault Response Time within Business Hours Resolution Time
Website Error 2 hours 6 to 12 hours
Hardware Error 4 hours 12-24 hours
Network Error 4 hours 12-24 hours
Server Software Error 4 hours 24 hours

viii. Depending on the nature and severity of the error, the majority of response and resolution times are typically managed within 2 hours (if the error occurs during Business Hours). In some cases, however, the response time may reflect the times shown above and in extreme situations exceed these times. Events beyond the Developer’s control or impact such as Acts of God, data centre disasters (fire, flood), power supply issues, replacement hardware etc. may result in protracted response and resolution times. The Developer will keep all relevant stakeholders informed of the status and expected time for resolution. If any such delay continues for a period of more than 30 Business Days, and the issue has been caused by the Developer’s software, the Customer may terminate the Agreement effective immediately.

ix. Hardware and network errors include monitoring, response and resolution 7 days per week, 24 hours per day by the server service provider. Software errors include monitoring, response and resolution Monday to Friday, 9:00am to 5:00pm locally, excluding public holidays.

x. Server Back-Up: A server backup means a complete copy of the website files, content and database. The backup data, stored in country, is only to be used as a non-functional copy of the original website in case the original website becomes corrupt or inaccessible.

xi. The Server Back-Up Schedule includes the following:

  • Day 1 to Day 7: Full back-ups are generated daily and stored on-network
  • Day 8 to Day 30: From the daily backups, the Developer generates a weekly back-up each Sunday.
  • Day 31 to Day 365: At the start of the month a full back-up is generated. The Developer stores a full year of your back-ups. These back-ups are stored off-network

xii. In the event of data corruption or server fault, the backup will be restored to a functional server which in effect will reinstate the website back to its previous state before the error occurred, minimizing data loss and downtime. The Developer may issue a service fee for the data recovery operation if not the fault of the Developer.

xiii. Scheduled Maintenance: The Developer will provide accurate and timely information in order to notify the Customer of all Scheduled Maintenance. The Developer will work with any third parties to ensure that Scheduled Maintenance is only to occur during Off-peak Times.

16. Customer warranties

Customer warrants that:

i. It has full power, right and authority to enter into this Agreement and the Customer is not subject to any obligations that would prevent or otherwise restrict the Customer from performing its obligations under this Agreement.

ii. The Customer Content does not infringe the Intellectual Property Rights of any person;

iii. The Customer Content is not obscene, offensive, upsetting, or defamatory; and

iv. The use of the Customer Content by the Developer in connection the performance of its obligations under this Agreement is not illegal, fraudulent or of a defamatory nature.

17. Indemnities

i. Each party fully indemnifies the other against any loss, costs, expenses, demands or liability, in respect of third party claims arising out of a breach of any warranty giving.

ii. Without limiting the obligations of the Developer under this clause, if a determination is made by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of Intellectual Property Rights has occurred, the Developer must at its sole expense:

  1. replace or modify the infringing product in a manner acceptable to the Customer such that the quality, performance or usefulness of the Website is not degraded and so that the infringement ceases; or
  2. Procure for the Customer the right to possess and continue to use the whole or the relevant part of the Website or what was required under a Purchase Order.

iii. The indemnities contained in this Agreement continue notwithstanding the expiry or termination of this Agreement.

18. Data Protection and Privacy

i. The Developer must comply with the Data Protection Act in relation to the Personal Data, whether or not the Developer is an organisation bound by the Data Protection Act in so far as they apply to the Developer and/or the Services.

ii. The Developer and the Customer acknowledge that for the purpose of the Data Protection Act, the Customer is the Data Controller (as defined in the Data Protection Act) and the Developer is the Data Processor (as defined in the Data Protection Act) in respect of the processing of any Personal Data.

iii. The Developer must:

  1. use the Personal Data only for the permitted purposes of it carrying out its obligations under this Agreement;
  2. keep a record of any processing of personal data that it carries out on behalf of the Customer;
  3. promptly comply with any request from the Customer requiring the Developer to amend, transfer or delete Personal Data;
  4. not disclose Personal Data without the prior consent of the Customer except to an employee of the Developer to the extent necessary for the permitted purposes of it carrying out its obligations under this Agreement or as required by law;
  5. ensure that any employees who are granted access to the Personal Data are informed of the confidential nature of the Persona Data, have undertaken training in the laws relating to the handling of personal data and are aware both of the Developer’s duties and the employee’s personal duties and obligations under such laws and this Agreement;
  6. ensure that any person to whom Personal Data is disclosed as required by law, does not do or omit to do anything which, if done or omitted to be done by the Developer, would constitute a breach of this clause 18;
  7. obtain from any contractor of the Developer to whom information is disclosed under this Agreement or as required by law, written agreement to comply with provisions having the same effect as this clause 18;
  8. not do anything or omit to do anything with the Personal Data that will cause the Customer to breach its obligations under the Data Protection Act;

iv. The Developer must not transfer Personal Data to a person (including itself) in a country outside of the European Economic Area without the Customer’s prior written consent.

v. If the Developer receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Act and the data protection principles set out therein, it shall immediately notify the Customer and it shall provide the Customer with full co-operation and assistance in relation to any such complaint, notice or communication.

vi. The Developer shall notify the Customer within 5 Business Days if it receives a request from a Data Subject (as defined under the Data Protection Act 1998) for access to that person’s Personal Data.

vii. The Developer shall provide the Customer with full co-operation and assistance in relation to any request made by a Data Subject to have access to that person’s Personal Data.

viii. The Developer shall not disclose Personal Data to any Data Subject or third party other than at the request of the Customer or as provided for in this Agreement or as required under a court order from a court with competent jurisdiction;

ix. At the Customer’s request the Developer shall provide to the Customer a copy of all Personal Data held by it in the format and on the media reasonably specified by the Customer.

x. The Developer shall immediately inform the Customer if any Personal Data is lost or destroyed or becomes damages, corrupted or unusable and the Developer will restore such Personal Data at its own expense.

xi. The Developer warrants that it will:

  1. Process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments; and
  2. take appropriate technical and organizational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure the Customer’s compliance with the seventh data protection principle.

xii. If the Developer authorises third party subcontractors to process any Personal Data under the terms of this Agreement the Developer shall ensure that any sub-contractors are retained on terms which are substantially the same as those set out in this Agreement.

19. Independent Contractors

i. The Developer and Customer are each independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party has the power to obligate or bind the other party. Personnel supplied by the Developer must work exclusively for the Developer and must not, for any purpose, be considered employees or agents of the Customer and vice versa.

20. Confidentiality

i. A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.

ii. A party is not in breach of this clause in circumstances where:

  1. it is legally compelled to disclose the other party’s Confidential Information;
  2. the information disclosed is generally available to the public (other than as a result of the wrongful disclosure by such party);
  3. such party obtained the Confidential Information from a third party without breach by that third party of any obligation of confidence concerning the Confidential Information; or

iii. The Confidential Information was already in such party’s possession (as evidenced by written records) when provided by or on behalf of the other party.

iv. Each party must take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.

v. The Customer may at any time require the Developer to arrange for its employees, agents or sub-contractors engaged in the performance of this Agreement to execute a suitable confidentiality deed and if requested the Developer must arrange for the deed to be executed within the time frame reasonably required by the Customer.

vi. Each party must on demand or on the expiration or termination of this Agreement, destroy or return to the other party (as directed by that party) any documents supplied to that party in connection with this Agreement.

vii. Despite any other provision of this clause, the Developer may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants, but must ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to the Developer.

21. Termination

i. Without prejudice to any other rights either party may have under this Agreement or at law or in equity, either party may terminate this Agreement with immediate effect, in whole or in part, upon:

  1. the other party becoming subject to any form of insolvency administration (whether voluntary or otherwise);
  2. the other party being in breach, including multiple small breaches, of any clause of this Agreement and such breach not being remedied with 30 days of written notice by the party of that breach; or
  3. the other party purporting to or proposing to assign this Agreement or its rights or interests in any relevant Intellectual Property, without the owner or licensor’s prior written consent.

ii. Either party may terminate this Agreement for convenience with 180 days of written notice to the other party at any time.

iii. The Developer reserves the right to discontinue a Product or version of a Product at any time. In this event, the Developer will announce an End-of-Life date on the Product website and provide email communication to the Customer. The End-of-Life date will apply 12 months after the announcement date. The Customer will provide bug fixes, maintenance releases, work arounds, or patches for critical bugs during the 12-month period. At the end of the period End-of-Support will apply and Customers will be required to upgrade to the supported version of the software or terminate the agreement. When the End-of-Life applies to a critical security issue, upgrades dates may be reduced to protect Customer data.

iv. Upon termination of this Agreement:

  1. the Customer agrees to use all reasonable endeavours to assist the transfer of the Developer Tools and Templates to the Developer; and
  2. Any transfer or migration that occurs under this clause must be carried out at the Developer’s expense.

22. Inconsistency

i. To the extent that there is an inconsistency between a provision in a clause in the body of this Agreement and a provision in a Schedule:

  1. a specific provision takes precedence over a general provision; and
  2. otherwise, to the extent necessary to resolve the inconsistency the following order of precedence applies:
    1. the clauses of this Agreement;
    2. the Order Specification;
    3. the Schedules; and
    4. any Purchase Orders.

23. Further assurance

i. Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.

24. Severability

i. If anything in this Agreement is unenforceable, illegal or void then it is severed, and the rest of this Agreement remains in force.

This Agreement:

i. is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and

ii. Supersedes any prior agreement or understanding on anything connected with that subject matter.

iii. Each party has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.

25. Variation

i. An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

26. Assignment

i. The Developer may not assign or novate its rights and obligations under this Agreement without the prior written consent of the Customer.

ii. The Customer may assign or novate its rights and obligations under this Agreement without the Developer's consent.

27. Waiver

i. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

ii. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

iii. A waiver is not effective unless it is in writing.

iv. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

28. Costs and disbursements

i. Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.

ii. The Customer as the purchaser of goods and services pursuant to this Agreement, must pay all stamp duty and other government imposts payable in connection with this Agreement and all other documents and matters referred to in this Agreement when due or earlier if requested in writing by the Developer.

29. Notices

i. A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.

ii. In addition to any other method of service provided by law, the Notice may be:

  1. sent by prepaid post to the address of the addressee set out in this Agreement or subsequently notified;
  2. sent by email of the addressee sent by electronic mail to the electronic mail address of the addressee; or
  3. delivered at the address of the addressee set out in this Agreement or subsequently notified.

iii. A Notice must be treated as given and received:

  1. if sent by post, on the 2nd Business Day (at the address to which it is posted) after posting;
  2. if sent by email before 5 p.m. on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or

iv. If otherwise delivered before 5 p.m. on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

v. An email message is not treated as given or received if the sender’s computer reports that the message has not been delivered.

vi. A Notice sent or delivered must be treated as validly given to and received by the party to which it is addressed even if:

  1. the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent;
  2. the Notice is returned unclaimed; or
  3. in the case of a Notice sent by electronic mail, the electronic mail message is not delivered or opened (unless the sender’s computer reports that it has not been delivered).

vii. Any Notice by a party may be given and may be signed by its solicitor.

viii. A party may change its postal address for service or email address by giving Notice of that change to each other party.

30. General

i. This Agreement:

  1. is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
  2. supersedes any prior agreement or understanding on anything connected with that subject matter.

ii. Each party has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.

iii. At end of contract, the Developer will provide the Customer with a CSV export of the Customer’s database before decommissioning the site.

31. Governing law and jurisdiction

i. The law of Queensland governs this Agreement.

ii. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Federal Court of Australia.