Client Services Master Agreement
1) SCOPE OF SERVICES
The Company agrees to assist the Client with professional services (‘the Services’) as set forth in the applicable Statements of Work, Work Order Requests, Managed Services Agreements, Scope of Works or other documents (each referred to generically herein as “Services Documents”) that may be executed from time-to-time by both parties to this Agreement. To be effective, each Services Document (if any) shall, subject to the remainder of this paragraph, when executed by both parties, be deemed a part of, and governed by the terms of, this Agreement. Each Services Document is enforceable according to the terms and conditions contained therein, and in the event of a conflict between this Agreement and any Services Document, the Services Document shall prevail in respect of all matters specifically dealt with therein. The Company shall perform all the Services in accordance with the relevant industry best practices, as well as those service levels explicitly described in any relevant Services Document.
2) GENERAL RESPONSIBILITIES OF THE PARTIES
a) Subject to the foregoing the Client appoints the Company to supply the Services to the Client subject to the terms and conditions of this Agreement and the relevant Services Document(s).
b) At the request of the Client the Company may agree to provide additional services under this Agreement on a case by case basis under one or more additional Services Documents. Unless otherwise agreed in writing, any additional services will be provided at the Time and Materials Rates on any additional terms and conditions set out in the relevant additional Services Documents.
c) At the request of the Client the Company may agree to provide additional services under this Agreement on a case by case basis and on a Time and Materials basis. Unless otherwise agreed in writing, standard services rates valid on the date of request will be used.
a) Unless otherwise stated in a Services Document, Payment is due within thirty (30) days from the invoice date for Services from the Company. For prepaid fees or fees paid pursuant to a service plan, payment must be made in advance of work performed, unless other arrangements are agreed upon in the relevant Services Document.
b) Late payments shall be subject to an administration fee on the unpaid invoice amount(s) (or parts thereof) until and including the date payment is received, at the rate of 1.5% per month. The Client shall be liable for all reasonable fees and costs incurred in collection of balances past due including but not limited to collection fees, filing fees and legal costs.
c) If there is a dispute about whether an amount set out in an invoice is payable, the Client will pay the disputed amount and when the dispute is resolved, if it is resolved in favour of the Client, the Client will first set-off the disputed amount paid pursuant to this clause against any monies then due and payable to the Company as at the date the dispute is resolved or should there be no monies due, the amount will thereafter be held by the Company to the credit of the Client against future amounts payable by the Client to the Company
d) The price for the supply of the Services specified in the Services Document is the Contract Price.
e) The Contract Price for the Services specified in the Services Document, includes without limitation:
i) costs and expenses of the Company in supplying the Services;
ii) all costs and expenses of the Company in complying with this Agreement and any relevant Services Document; and
iii) all charges for materials required to be provided by the Company or third parties, or services required to be performed in order to fulfill the Client’s obligations under this Agreement.
f) The Company will charge the Client the Time and Materials Rates for any Services requested by the Client and agreed to be provided by the Company which are specified as ‘out-of-scope’ in the Services Document or for any ad-hoc requirements that are in addition to those required under any Services Document.
g) The Company will be entitled to charge the Client the amounts specified in clause 3(f) regardless of whether the parties have entered into a Services Document in respect of the additional services.
h) The Company will, on an annual basis, review the Contract Prices and the Time and Materials Rates and the Company may, at its absolute discretion vary such prices by providing written notice to the Client.
i) The Contract Price and the Time and Materials Rates are exclusive of duties and taxes and the Client must pay all duties and taxes in connection with the Services.
a) To the extent that a party (supplying party) makes a taxable supply and the consideration for that supply is either non-monetary, or expressly stated to be exclusive of GST, the party that is liable to provide the consideration (receiving party) will also pay an amount equal to the GST payable by the supplying party in respect of the consideration to be provided for the taxable supply.
b) The receiving party’s obligation to pay the GST component of any consideration under this Agreement is subject to receiving a valid tax invoice, at or before the time of payment of the consideration.
c) If one party is to indemnify or reimburse another party (payee) for any loss or expense incurred by the payee, the required payment does not include any amount which the payee (or any entity that is in the same GST group as the payee) is entitled to claim as an input tax credit, but will be increased under clause 4(a) if the payment is consideration for a taxable supply.
d) If any regulatory changes to the GST system directly or indirectly affect the net dollar margin of the Company in respect of any supply made under or in accordance with this Agreement, the consideration (excluding GST) payable for the supply will be reduced in accordance with guidelines issued by the Australian Competition and Consumer Commission pursuant to Part VB of the Trade Practices Act 1974 (Cth) so that the Company’s net dollar margin in respect of the supply is not increased and the Company must provide upon request reasonable evidence to demonstrate that it has complied with this clause 4(d).
e) Interpretation of GST Terms in this Agreement:
i) Capitalised terms used in this clause 4, not defined elsewhere in this Agreement have the meaning given to them in the A New Tax System (Goods and Services) Tax Act 1999 (Cth), unless the context makes it clear that a different meaning is intended; and
ii) Consideration includes non-monetary consideration, in respect of which the parties will agree on a reasonable market value.
5) FORMATION OF CONTRACT
a) A Services Document constitutes a contract; each Services Document incorporates by reference the general contractual terms of this Agreement (as applicable and unless stated otherwise in that Services Document) in the manner set forth in clause 1 above.
b) Any purported addition to or modification of any provision of this Agreement contained in any Services Document will not be binding on the parties unless such addition or modification has been made in accordance with clause 26b (‘Variation’) following.
The Term shall continue for the period specified in the Agreement and will be automatically extended for additional periods of the same duration unless either party gives notice in writing to the other party terminating the Agreement by invoking the appropriate provisions set out in Clause 18 (“Termination”).
7) CHANGE CONTROL
a) The Company is entitled to make minor alterations to the Services that do not:
i) adversely affect the function or performance of the Services;
ii) change the functionality or performance of the Services; or
iii) cause the Services to cease to comply with their intended purpose under the terms of this Agreement.
b) From time to time a party may propose variations in or changes to the Services under a Services Document using the procedures set out in this clause 7.
c) The Client may propose a variation in or a change to the Services under a Services Document by delivering a written notice to the Company describing the proposal. The Company will, within 10 Business Days after receipt of such notice, provide to the Client an estimate in writing of the time and cost involved in implementing the variation or change. The cost will be based on the Contract Price and/or Time and Materials Rates current at the time of the Company’s receipt of the Client’s proposal.
d) The Company may also propose a variation in, or change to, the Services under a Services Document by providing the Client with a written notice describing the proposal together with an estimate of the time and cost involved in implementing the variation or change. The cost will be based on the Contract Price and/or the Time and Materials Rates current at the time of the Company’s proposal.
e) Within 10 Business Days after receipt of an estimate from the Company, the Client will confirm in writing to the Company whether it wishes to proceed with the Company’s proposal or not to proceed with the Company’s proposal. If the Client confirms that it requires a response from the Company, or requires the Company to proceed with the Company’s proposal, as the case may be, the Company must provide a response or confirmation of the Company’s proposal as soon as possible by preparing and delivering to the Client a written document in respect of such variation (Change Control Document).
f) Acceptance of a Change Control Document
i) If the Client accepts the Change Control Document, then the relevant Services Document will be amended to give effect to the changes described in that Change Control Document.
ii) No variation in or change to the Services under a Services Document will be effective until both parties have executed a Change Control Document. Until the parties have executed the Change Control Document, the original scope of work will remain unaffected and the Company shall perform its obligations in accordance with the original agreed Services Document.
8) PERFORMANCE OF SERVICES
a) Standards for performance : In performing its obligations under this Agreement and any Services Document, the Company will use reasonable endeavors to:
i) work (and ensure its employees, officers, agents and Subcontractors, and the employees, officers, agents and contractors of its Subcontractors) with the Client in an efficient and co-ordinated manner;
ii) perform its obligations in an efficient, professional and cost effective manner;
iii) overcome any delays (howsoever caused) in performing this Agreement;
iv) comply with the reasonable instructions, guidelines or procedures specified by the Client; and
v) ensure that its employees, when dealing with persons, are courteous and polite and do nothing that is prejudicial to the goodwill, commercial reputation or overall public image of the Client.
b) The Client may request in writing that the Company promptly remove any individual Company personnel who is not performing the Services in a reasonably satisfactory manner or who, in the Client’s reasonable opinion, is not suitable to perform the Services due to conduct. The Company will replace such personnel as soon as possible. The Client agrees:
i) not to exercise its right to request removal unreasonably;
ii) to provide the Company with 5 Business Days’ written notice of the Client’s intent to exercise its right to request removal; and
iii) provide the Company with an opportunity to rectify the cause of the Client’s dissatisfaction,
provided that the Client is entitled to require immediate removal for conduct that has caused, or is likely to cause, material loss or damage to the Client’s assets, reputation or injury to its personnel, agents or contractors.
9) SERVICE LEVEL AGREEMENTS (SLAs)
a) The Company will use its reasonable endeavors to comply with each of the SLAs.
b) If the Company fails to perform to the standard required by a SLA, the Client may require the Company to submit to the Client, within the period specified by Client but being not less than 14 days, a Remedial Plan, and the Company shall commence implementation of the Remedial Plan within a further 14 days thereafter.
10) CLIENT RESPONSIBILITIES
a) In relation to the Client’s receipt of the Services under this Agreement, the Client must:
i) appoint the Client’s Representative to provide liaison with the Company and provide the Company with any necessary or relevant information and make decisions or obtain decisions from others expeditiously;
ii) maintain daily backup of its systems (except to the extent that daily backups are included in the Services to be provided by the Company in a Services Document);
iii) allow the Company to install, operate and maintain system diagnostic computer software on its system as required for the Company to provide the Services;
iv) provide the Company with at least 30 days’ prior written notice of any changes to its system or relocation of same which are to be made by the Client or any third party. The Client acknowledges that such changes may result in a change to the Services Document and, if so, the parties must follow the procedures set out in clause 7 (Change Control) in respect of such change to the Services;
v) provide the Company with all reasonable support and information as required by the Company to provide the Services;
vi) make available to the Company the Client’s personnel, as reasonably required and agreed between the parties, to permit the Company to perform the Services. The Client will also provide the Company with:
(1) the facilities, utilities and other items, reasonably required for housing, maintaining and operating the system;
(2) the office space, computer resources, materials, facilities and other support necessary for the Company to provide the Services as specified by the Company; and
(3) a permanent or VPN based communications link including software and licensing for remote support and monitoring purposes,
(vii) ensure that all of the Client’s work facilities made available meet occupational health and safety guidelines;
(viii) provide the Company with reasonable access to the Premises and to the system to provide the Services;
(ix) ensure that the Client’s personnel attend any scheduled training or demonstration provided by the Company;
(x) ensure that the Client validly and rightfully holds licenses for all of the software in the system at all times and the Client must ensure that it complies with the terms and conditions of all such licenses; and
(xi) perform such Client obligations as specified in a Services Document.
b) If the Client’s failure to comply, or the Company’s delay in complying, with the Client’s obligations set out in this Agreement prevents or delays the Company from meeting its obligations to the Client, then:
(i) the time for performance of the Company’s relevant obligations will be extended for a period of time that is equal to the additional amount of time taken by the Client to perform the Client’s interdependent obligations;
(ii) where the Company is required to incur additional costs as a result of the Client’s failure or delay, the Company may charge the Client those additional costs; and
(iii) to the extent that the Client’s failure causes the Company to breach this Agreement, the Company will not be liable for that breach or its consequences.