Master Services Agreement

Transcription

1 Master Services Agreement reinteractive pty ltd Level 32, 101 Miller Street North Sydney, NSW, 2060 (t) (f) info@reinteractive.net

2 BACKGROUND A. reinteractive Pty Ltd (ABN ) of Level 32, 101 Miller Street, North Sydney, NSW 2060, Australia ( reinteractive ) is a software developer. B. The Client has executed a Statement of Work with reinteractive and wishes to use the services of reinteractive. C. This Agreement including all and any Statements of Work executed from time to time by the parties specify the terms and conditions upon which reinteractive agrees to provide software development services, and other agreed services, to the Client. AGREEMENT 1. SERVICES 1.1. Each Statement of Work executed by reinteractive and the Client shall constitute a legally binding contract commencing on the Start Date set out in the Statement of Work. Each Statement of Work shall continue to operate until terminated in accordance with this Agreement reinteractive shall perform the Services for the Client in a professional manner using qualified professional personnel, in accordance with the requirements of the Statement of Work Should reinteractive perform services at the Client s premises, reinteractive shall follow any reasonable safety and security policies of the Client disclosed in writing in advance to reinteractive All Development Services will be carried out by reinteractive on a time and materials basis. Where reinteractive provides an estimate of fees, the actual fees incurred by the Client may be less than or greater than estimated. Estimates may be revised by reinteractive from time to time All Operations Services (other than related Professional Services) will be carried out by reinteractive for a fixed recurring fee set out in the Statement of Work. Professional Services delivered in connection with the Operations Services will be supplied on a time and materials basis under the same terms as Development Services in clause DEVELOPMENT SERVICES 2.1. The fees for the Tasks will be as specified in the relevant Statement of Work. Notwithstanding the foregoing, reinteractive will provide free of any charge, meetings and consultation required to draft the Statements of Work All time spent performing Tasks by or on behalf of reinteractive is payable by the Client to reinteractive at the agreed rates specified in the relevant Statement of Work It is the Client s responsibility to ensure that reinteractive is provided with sufficient information to enable reinteractive to obtain a comprehensive understanding of the functionality or features of the Software and System required by the Client. 13 April 2015 Page 2 of 19

3 2.4. reinteractive shall have no obligation to develop the Software for any browser other than the Google Chrome browser. For the avoidance of doubt, the Client must pay reinteractive for any time spent by reinteractive developing the Software for use in Google Chrome and any time spent effecting any necessary modifications to the Software in order to make it compatible with any other web browser, at the rates set out in the Statement of Work Unless and to the extent requested by the Client, the Software, the System and the Services will not be tailored to meet the needs of end users with disabilities or other special needs During development, reinteractive will place all Software relating to the Project into a VCS as detailed in the Statement of Work. As Software is created and delivered to the Client, it will be placed into the VCS for access by the Client, at which point it shall be deemed delivered to the Client Notwithstanding any other provisions of this Agreement or associated confidentiality agreements, reinteractive shall be permitted to disclose in a summary form the nature of the Services delivered to the Client under this Agreement including the Client logo and Client name or the names and logos relating to the Client s customer if work is being carried out by reinteractive in its capacity as a subcontractor. 3. OPERATIONS SERVICES 3.1. This clause 3 only applies if the Client has prepaid for reinteractive to provide monthly Operations as a Service Support (OaaS Support) or Deployment Service. In those circumstances: a) The Client will setup an AWS Account solely for the use of reinteractive to provide the OaaS Support or Deployment Service to the Client. The Client will provide reinteractive with an AWS Identity and Access Management account with admin privileges. b) reinteractive will build the System Infrastructure according to reinteractive best practices on the Client AWS Account. This will include a multi availability zone deployment of the Client s System. c) reinteractive will migrate the Client s existing System described in the Statement of Work to the System Infrastructure at the Client s request in accordance with the relevant Statement of Work at reinteractive s Professional Services rates. d) Where reinteractive has agreed to provide a data migration service to the System Infrastructure, the Client is responsible to ensure that the data being migrated is correct and is in the format required by reinteractive prior to the scheduled migration. The Client indemnifies and releases reinteractive in respect of any loss, damage or expense incurred by reinteractive as a result of the Client s failure to comply with this subclause. e) The Client will be responsible for the fees and charges billed to it from AWS in connection with the AWS Account, including those resulting from setting up the System Infrastructure, and to ensure compliance under its agreement with AWS. 13 April 2015 Page 3 of 19

4 f) The Client will not perform, or allow any third party to perform, work on or modifications to the System Infrastructure without the prior written consent of reinteractive. g) The Client acknowledges that reinteractive is not responsible for any downtime in any services provided by AWS or in any outage in the System, the System Infrastructure or any interruption or unavailability of OaaS Support or the Deployment Services or loss of data caused or contributed by an AWS outage. h) reinteractive will configure an AWS backup policy to provide database (Amazon Relational Database Service) level backups of the Client s System migrated to the System Infrastructure and check on a monthly basis that backups have been created in accordance with the AWS backup policy. reinteractive will test the backups once every 6 months to establish whether or not they can be restored without any immediately apparent error. i) reinteractive will provide to the Client deployment tools that allow the Client to deploy updates to the Client s System migrated to the System Infrastructure, as set out in the Statement of Work. reinteractive will provide ongoing updates to these deployment tools as part of the ongoing monthly fee specified in the Statement of Work. j) The Client may purchase Professional Services to assist with the modification or update of the System migrated to the System Infrastructure. k) Unless stated otherwise in the Statement of Work, the Service Period for the OaaS Support and Deployment Service (as applicable) commences on the Start Date specified in the Statement of Work and continues indefinitely until terminated in accordance with this Agreement. l) reinteractive retains all Intellectual Property Rights in any software or system provided or used by reinteractive in connection with OaaS Support or the Deployment Service. m) reinteractive will provide Support Services during the Support Hours or as specified in the Statement of Work This clause 3.2 only applies where the Client has prepaid reinteractive to provide OaaS Support. In those circumstances: a) reinteractive will actively maintain the System Infrastructure on a monthly basis, applying updates as it deems appropriate to maintain the System migrated to the System Infrastructure. b) reinteractive will determine the monthly fee for the OaaS Support Service and this fee will be listed in the relevant Statement of Work. reinteractive may increase the monthly fee at any time on 60 days notice if it determines that the System Infrastructure has increased in size or complexity. If the Client does not approve of the new monthly fee, the Client s sole remedy shall be to terminate this Agreement. c) In addition to any downtime resulting from maintenance carried out by AWS, the Client agrees that reinteractive may take the System and the System Infrastructure offline to perform maintenance and updates to the System and the System Infrastructure where considered reasonably required by reinteractive. 13 April 2015 Page 4 of 19

5 d) Should the System Infrastructure suffer a service outage outside of scheduled maintenance periods, that is not due to an AWS service outage or caused by actions of the Client (or any person acting on behalf of the Client), the Client will be credited as follows: i. Less than 99.95% uptime over a calendar month but more than 99.0% will result in a 10% credit of the monthly fee set out in the next invoice. ii. Less than 99.0% uptime over a calendar month will result in a 25% credit of the monthly fee set out in the next invoice. e) The credits applied pursuant to paragraphs d) and e) shall be limited to a maximum aggregate amount of 100% of the relevant monthly fee charged by reinteractive for OaaS Support in the invoice. f) In addition to the above, reinteractive will provide as part of the monthly fee: i. Installation of commonly available open source software dependencies or AWS infrastructure changes needed by the Client s application in order to function; ii. iii. iv. Best practices advice on configuring the System for use on the System Infrastructure; Answering general questions relating to what software and services are supported by the OaaS Support service; Identifying problems that will prevent the System from running correctly on the System Infrastructure; v. Identifying broad areas of performance bottle necks in the Client s System; vi. vii. Troubleshooting of the installed System Infrastructure where it is not deemed to be working correctly by reinteractive, and Answering general questions about the OaaS Support service. g) reinteractive will not provide the following as part of the periodic OaaS Support or Deployment Service fee. The Client must purchase Professional Services at the rates defined in the relevant Statement of Work if it requires the following services: i. Debugging, modifying or patching the System or any third party or open source software it depends on (unless that software is provided pursuant to clause 3.2(a)); ii. iii. iv. Restoration of any part of the System or System Infrastructure where the outage was caused by the Client or a representative of the Client; Repair of any part of the System or System Infrastructure modified by the Client or a representative of the Client; or Installation of licensed or proprietary software dependencies or obscure open source software needed by the System that are provided by the Client This clause 3.3 only applies where the Client has prepaid for and reinteractive is providing Professional Services. In those circumstances unless and to the extent specified to the contrary in the relevant Statement of Work: 13 April 2015 Page 5 of 19

6 a) Professional Services will be scheduled according to the availability of the reinteractive team in a manner determined by reinteractive in its absolute discretion; b) Notwithstanding clause 3.3.a), the Client understands that reinteractive s general policy is to prioritise the provision of Professional Services to its clients according to the severity of the relevant issue, with urgent issues being given priority over non-urgent issues; c) Subject to the Client having sufficient hours prepaid to complete Professional Services requested by the Client, reinteractive agrees to use its best endeavours to carry out Professional Services in accordance with the following response and resolution times: Severity (determined by reinteractive) Response Time Service Level Resolution Time Service Level Low an issue which is cosmetic or is a new feature request or which affects a non-essential part of the Client s business operations Medium an issue that is materially negatively impacting Client business operations and is not a new feature request High an issue that is causing the Client s software application to be completely unusable and is materially negatively impacting on Client business operations reinteractive must acknowledge receipt of the Professional Services request within 1 Business Day of the Professional Services request being lodged in the ticketing system reinteractive must acknowledge receipt of the Professional Services request within 4 Business Hours of the Professional Services request being lodged in the ticketing system reinteractive must acknowledge receipt of the Professional Services request within 4 Business Hour of the Professional Services request being lodged in the ticketing system reinteractive must schedule development work to resolve the issue to begin within 20 Business Days of the acknowledged request reinteractive must schedule development work to resolve the issue to begin within 10 Business Days of the acknowledged request reinteractive must schedule Professional Services to work to resolve the issue to begin within 1 Business Day of the acknowledged request 3.4. Should reinteractive fail to meet the minimum response or resolution times specified in clause 3.3.c) over any calendar month, the Client will be credited the following percentage on its monthly Support Services fee for the subsequent month as follows: a) 1 service level breach in the period will result in a 10% credit; b) 2 4 service level breaches in the period will result in a 25% credit; and c) 5 or more service level breaches in the period will result in a 50% credit. 13 April 2015 Page 6 of 19

7 3.5. The Client understands that Professional Services software development can take an unknown time to complete due to requirements gathering and troubleshooting and it is up to the Client and reinteractive staff to work together and provide each other any reasonably required assistance to complete the development of any issue lodged To the extent possible by law, the credits referred to in clause 3.4 shall constitute the Client s sole and exclusive remedy for any breach of the response and resolution time service levels specified in clause 3.3.c) or other non-performance of the Professional Services The Client must provide reinteractive with the names, addresses and contact phone numbers of the Client s nominated authorised representatives who the Client authorises to contact reinteractive technical support. reinteractive will not discuss the System with any person purporting to be a representative of the Client not so authorised. 4. COPYRIGHT AND LICENCE 4.1. All Intellectual Property Rights in the Client IP solely created by reinteractive as original work for the Client shall vest in the Client, subject to payment by the Client of all fees and charges required under this Agreement. The Client grants a non-exclusive, non-transferable, royalty-free licence to reinteractive to use the Client IP for the purposes of this Agreement If payment of all fees and charges required to be effected by the Client is not effected in accordance with and by the time required by this Agreement, all Intellectual Property Rights in the Client IP shall remain vested in reinteractive and shall not vest in the Client All Intellectual Property Rights in the reinteractive IP shall remain vested in reinteractive and nothing in this Agreement shall result in any assignment or other transfer of those rights to the Client or any other person. Subject to payment by the Client of all fees and charges as required by this Agreement, reinteractive grants the Client a non-exclusive, non-transferrable, nonassignable, perpetual, worldwide licence, (without the right to grant sublicences) to use the reinteractive IP, to the extent reinteractive IP is incorporated by reinteractive in any Deliverable, solely as part of the System for the Client s internal business purposes in object code form only and not for any other reason Nothing in this Agreement transfers any third party rights to the Client. The Client acknowledges that to the extent that any components of the Software, Features, Fixes, Deliverables or Documentation comprise of open source software or other third party software and which is used by the Client in its System or delivered by reinteractive to the Client in the course of performance of the Services hereunder shall remain subject to the open source or other licence provisions under which it is licensed by the third party owner of the said software and the Client shall be required to enter into a licence agreement with the third party software owner in order to use any such third party software. 13 April 2015 Page 7 of 19

8 4.5. reinteractive will procure (and provide to the Client at its request) a written consent, from each individual involved in the creation or development of any reinteractive IP or Client IP provided under this Agreement, to any acts or omissions of the Client in its use thereof that might otherwise infringe the moral rights of the individual under Part IX of the Copyright Act 1968 (Cth) reinteractive indemnifies the Client and its officers, employees and agents against all costs, losses, damages and other expenses (including reasonable legal fees) which any of them may suffer or incur as a result of any claims or proceedings brought or threatened against any of them that the Client s acquisition, possession or use of the Software (except any open source or other third party software incorporated into the Software) infringes or may infringe any third party s Intellectual Property Rights provided that: a) reinteractive is notified promptly in writing of any such claim; b) the Client makes no admission or settlement of such claim without reinteractive's prior written consent; c) reinteractive has sole control of the defence and any negotiations for compromise; and d) the Client provides, at reinteractive s expense, such assistance as reinteractive reasonably requires If the Software becomes the subject of a claim that falls within the scope of the indemnity in clause 4.6, reinteractive will use its best endeavours: a) to replace all or part of the Software with functionally non-infringing equivalent software; and/or b) to modify the Software as necessary to avoid such claim, provided that the Software (as amended) functions in substantially the same way as the Software before modification; and/or c) to procure for the Client a licence from the relevant complainant to continue using the Software. If in the above circumstances reinteractive is unable to procure for the Client the right to continue using the Software, or to provide the Client with functionally equivalent non-infringing software, this Agreement and any licence to use the Software may be terminated by reinteractive reinteractive shall have no liability under clause 4.6 for any claim that is caused by or arises out of: a) use of the Software in combination with software not supplied or approved in writing by reinteractive; b) any modification of the Software carried out without reinteractive s prior written approval; c) use of any version of the Software other than the latest version supplied by reinteractive, if such claim could have been avoided by the use of such supplied version; d) where the claim for infringement arises in respect of a feature of the Software which was requested by the Client in its design or functionality requirements; or 13 April 2015 Page 8 of 19

9 e) the Client s Materials The Client indemnifies reinteractive and its officers, employees and agents against any and all costs, losses, damages and other expenses (including reasonable legal fees) which any of them may suffer or incur as a result of any claims or proceedings brought or threatened against any of them that reinteractive s acquisition, possession or use of the Client Materials infringes or may infringe any third party s Intellectual Property Rights or other rights, or breaches any applicable law, provided that: a) the Client is notified promptly in writing of any such claim; b) reinteractive makes no admission or settlement of such claim without the Client s prior written consent; c) the Client has sole control of the defence and any negotiations for compromise; and d) reinteractive provides, at the Client s expense, such assistance as the Client reasonably requires This clause 3.4 shall survive termination or expiry of this Agreement. 5. CLIENT OBLIGATIONS 5.1. The Client shall make available to reinteractive in a timely manner all assistance, including personnel, information, facilities, services and equipment reasonably required by reinteractive for the performance of its obligations under this Agreement reinteractive will develop the Software in an iterative manner using Agile Principles. The Client will make available one authorised representative who has full authority to make decisions about the development of the Software and that reinteractive shall be entitled to assume has full authority to make decisions about the development on the Client s behalf. The authorised representative must be available for daily meetings and up to 2-3 hours per day to work with the reinteractive team. Periodically, as reinteractive considers any phase of the development complete, it will deliver the work carried out to the Client via an agreed method. The authorised representative must then accept or reject the work within 5 Working Days. Any work not rejected within 5 Working Days shall be considered complete and irrevocably accepted by the Client. If the Client s authorised representative rejects any work delivered by reinteractive it must provide reinteractive with detailed reasons as to why the Client considers that the work requires revision. All revisions to the work shall be charged to the Client at the rates set out in the Statement of Work The Client shall ensure that the Client s Representative is the key contact and point of communication for the purposes of this Agreement The Client must, at its sole cost and expense procure and provide to reinteractive access to any computer hardware or hosting services reasonably required by reinteractive in connection with the testing or hosting of the Software and System. 13 April 2015 Page 9 of 19

10 6. CHARGES AND PAYMENT 6.1. The Client must pay reinteractive the amounts specified in the Statement of Work in accordance with this clause 6. Subject to the provision by reinteractive of a properly prepared tax invoice, payment is required to be made by the Client for all work carried out by reinteractive described in a Statement of Work The Client must advise reinteractive as soon as practicable if it genuinely disputes any portion of an invoice issued to it by reinteractive. If the Client disputes the whole or any part of the amount claimed in an invoice submitted by reinteractive pursuant to this Agreement, the Client will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this Agreement. If it is subsequently resolved that a further amount is payable, the Client will pay that amount together with interest at the rate calculated in accordance with clause All sums payable by the Client under this Agreement shall be made in full, without set-off or counterclaim, free and clear of any deduction on account of tax or otherwise, subject to any amount which is the subject of an unresolved genuine dispute If the Client fails to make payment of any undisputed amount due under this Agreement on the due date, reinteractive may without prejudice to its other rights require the Client to pay interest on the amount due from the due date until the date of payment, at a rate equal to 2.5% per annum above the current overdraft per annum rate that reinteractive has with its principal banker (in addition to the Client remaining liable for the full amount outstanding) The Client agrees to pay all invoices within 7 days of receipt unless and to the extent specified otherwise in the Statement of Work. 7. WARRANTIES AND LIMITATIONS OF LIABILITY 7.1. All warranties and guarantees (including, without limitation, warranties, guarantees and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law If reinteractive breaches any condition, guarantee or warranty implied by law which cannot lawfully be excluded, to the extent permitted by law the liability of reinteractive is limited, at its option, to: a) in the case of services, the resupply of, or payment of the cost of resupplying, the service; and b) in the case of goods: i. the replacement of the goods or the supply of equivalent goods; or ii. iii. the repair of the goods; or the payment of the cost of replacing the goods or of acquiring equivalent goods; or 13 April 2015 Page 10 of 19

11 iv. the payment of the cost of having the goods repaired A party shall not have any liability to the other party for any loss, damage or injury whether arising in contract, tort, equity or otherwise which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of this Agreement including liability for loss of business or profits, loss of anticipated savings, loss of business opportunity, loss of data, or loss of goodwill, even if a party was advised that any such loss was foreseeable Unless and to the extent that a party s liability is not otherwise excluded, each party shall only be liable for losses which flow directly from its breach of this Agreement up to a maximum of the aggregate sum paid by the Client to reinteractive under the relevant Statement of Work, which sum shall be the total combined aggregate liability of the party for all breaches occasioned. This clause 7 shall not limit the Client s obligation to pay any fees or charges under this Agreement The Client acknowledges that reinteractive has not made any representations that the Software and/or the System will achieve any particular purpose or objective. The Client further acknowledges that numerous or many Tasks may be required to be carried out by reinteractive in order for the Software and/or the System to operate in accordance with the Client s requirements, and that all work provided by reinteractive in connection with such Tasks shall be payable by the Client at the rates specified in the relevant Statement of Work Without limiting the foregoing provisions of this clause 7, reinteractive shall have no liability for any failure of the Deliverables caused by: a) any upgrade, replacement or other modification made to the operating environment in which the Deliverables were created or delivered; b) the integration of the Deliverables with third party software, hardware or systems not approved by reinteractive; c) any upgrade, replacement or other modification made to any third party software incorporated into or relied on by the Deliverables or which the Deliverables interface with; d) use of the Deliverables other than in the ordinary course. 8. INSURANCE 8.1. reinteractive must, at its own cost and expense, effect and maintain the following insurance for any claims arising out of the provision of the Services: a) public liability insurance for an amount of at least $10 million for any one claim; b) professional indemnity insurance to the value of at least $10 million per claim; c) workers compensation insurance as required by law reinteractive must, on request, provide the Client with certificates of currency for the insurances required by clause TERMINATION 9.1. Subject to clause 9.2, either party may terminate a Statement of Work at any time by written notice to the other party. 13 April 2015 Page 11 of 19

12 9.2. If the Client terminates a Statement of Work that is for a fixed term for any reason (other than material breach of the Agreement by reinteractive) before the end of the fixed term of that Statement of Work, within 14 days of the termination the Client will pay any outstanding fees and charges (the "Outstanding Fees and Charges") that would have been payable for the remainder of the fixed term of the Statement of Work. The Client agrees that payment of the Outstanding Fees and Charges is not intended to be, and will not be punitive in nature and effect and will compensate reinteractive for its reasonable losses (that may be difficult to ascertain) resulting from early termination of the Statement of Work Either party may terminate this Agreement immediately by notice in writing, upon: a) the other party committing any breach of this Agreement that is incapable of remedy; b) the other party failing to remedy any breach of this Agreement that is capable of remedy within 30 days of notice of that breach having been given by the nondefaulting party to the other party; or c) where the other party suffers an Insolvency Event. 10. CONSEQUENCES OF TERMINATION On termination of this Agreement: a) each party will at the other party s option either return to the other party, or destroy, all property and confidential material of the other party in its possession or control; b) reinteractive may issue an invoice in respect of any Services that have been performed but not yet invoiced which shall be payable by the Client within 7 days of receipt; c) reinteractive shall have no obligation to refund any monies paid by the Client in advance Clause 10.1.c) shall not limit any remedies available to the Client in circumstances where this Agreement is terminated by the Client pursuant to clause 9.3.a) or 9.3.b). 11. FORCE MAJEURE Either party may suspend its obligations to perform this Agreement if it is unable to perform as a direct result of a Force Majeure Event by notifying the other party giving details of the Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues When a party s obligations have been suspended pursuant to clause 11.1 for a period of 30 days or more, either party may immediately terminate this Agreement by giving notice in writing to the other party. 13 April 2015 Page 12 of 19

13 12. PERSONNEL Subject to clause 12.2 and resource availability, reinteractive will use reasonable endeavours to allocate its employees and subcontractors to perform the relevant Tasks according to the Client s preferences, and will accommodate any reasonable Client requests to replace such personnel Reinteractive reserves the right to allocate the employees and subcontractors it deems appropriate to perform the relevant Tasks and may replace or reallocate its employees or subcontractors allocated to a Project at any time after notifying and consulting with the Client. Without limiting the foregoing, the Client acknowledges that reinteractive has a policy of allocating its employees and contractors across multiple projects but does not generally replace staff on a particular project more often than bi-annually The Client understands that reinteractive and its employees or contractors allocated to a Client Project may perform services similar to the Services from time to time for other reinteractive clients. Nothing in this Agreement shall prevent reinteractive or its employees, contractors or representatives from performing similar services for other clients and which may result in the development of software and systems similar to the Software and System. reinteractive also understands that the Client may employ other consultants to perform similar services to the Services that reinteractive supplies from time to time and nothing in this Agreement shall prevent the Client from doing so (provided that nothing in this Agreement shall provide any rights to any such consultant or other third party in any reinteractive IP or confidential information or materials of reinteractive). 13. NOTICES Any notice to or by a party under this Agreement must be in writing and served by delivery in person or by post, facsimile or transmission to the address or number of the recipient specified in this Agreement or most recently notified by the recipient to the sender Any notice is effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report or read or delivery receipt before 4.00pm local time on a Working Day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next Working Day The Client consents to receiving from time to time, electronic messages from reinteractive which market or promote reinteractive s goods and services. 14. DISPUTE RESOLUTION If a party has a dispute or complaint against the other, that party ( Notifying Party ) must notify the other party in one of the ways described in clause 13 (Notices). The Notifying Party must ensure that the notice contains specific detail identifying the nature of the dispute or complaint. Both parties within 21 days of the delivery of a dispute notice will meet and use their best endeavours to resolve the dispute or complaint to the mutual satisfaction of both parties as soon as possible. 13 April 2015 Page 13 of 19

14 14.2. If the parties are not able to reach a resolution of the dispute or complaint within a reasonable period of time (in any event being no more than 21 days after the date of receipt of the notice of the dispute or complaint) ( First Dispute Period ), either party may refer the matter to mediation. The mediation must be conducted in New South Wales and the Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules (as at the date of this document) shall apply to the mediation If the parties have not agreed upon the mediator within 5 Working Days after the First Dispute Period the mediator is the person appointed by the President of the Institute of Arbitrators and Mediators Australia or the President s nominee, acting on the request of any party to the dispute or complaint The parties must pay the mediator's remuneration in equal shares. Each party must pay its own costs of the mediation and if the mediation does not resolve the dispute or complaint within 30 Working Days after the First Dispute Period then either party may commence a court action or proceedings Nothing in this clause 14 prevents either party from seeking urgent interlocutory relief or either party from seeking recovery for any claim that the seeking party reasonably considers to be a monetary claim from a Court of competent jurisdiction. 15. NON SOLICITATION OF EMPLOYEES During the term of this Agreement and for 12 months after any termination of this Agreement, the Client will not directly or indirectly, for himself or on behalf of any other entity, employ, engage or entice away from reinteractive and employ or engage as an independent contractor any employee or former employee of reinteractive unless the Client pays reinteractive an up front placement fee equal to 25% of the employees first year remuneration package or $25,000 AUD which ever is greater Notwithstanding clause 15.1, the Client may solicit the employment of any former employee of reinteractive that has had their employment terminated for of period of at least 6 months If a court of competent jurisdiction deems 6 months in clause 15.2 to be an unreasonable restraint, that clause shall be ready down so that the words 6 months in that clause are replaced with 3 months or in any other way deemed appropriate by the court. 16. GENERAL An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties Neither party can assign or otherwise transfer any of its rights or novate its obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld) The non-exercise of, or delay in exercising, any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other exercise of it or the exercise of any other 13 April 2015 Page 14 of 19

15 power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of it remains in force In the event and to the extent of any inconsistency between this document and a Statement of Work, the Statement of Work shall prevail The parties acknowledge and agree that they are independent contracting parties and that this Agreement does not represent or imply a partnership, agency, fiduciary relationship, joint venture, distribution or any other category of commercial or personal relationship between the parties A Statement of Work may be entered into in any number of counterparts. A party may execute a Statement of Work by signing any counterpart. All counterparts, taken together, constitute one document The laws of New South Wales govern this Agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales The parties agree that the terms and conditions in this document (together with any other written terms and conditions expressly referred to and incorporated in this document including but not limited to any Statements of Work) represent the entire agreement between the parties. 17. DEFINITIONS Unless the context otherwise requires, the following expressions shall have the following meanings: Agile Principles means the principles as defined at and for clarity include the four principles of a) Individuals and interactions over processes and tools, b) Working software over comprehensive documentation c) Customer collaboration over contract negotiation, and d) Responding to change over following a plan. Agreement means this Master Services Agreement and all and any Statements of Work executed by the parties; AWS means Amazon Web Services, Inc. and its related entities. AWS Account means an account setup with Amazon Web Services. Business Day means Monday to Friday, excluding weekends and public holidays in Sydney. Business Hours means 9:00AM to 5:30PM on Business Days. Client means as set out in a Statement of Work. Client IP means as specified in the Statement of Work; Client Materials means any logos, trademarks and content supplied by or on behalf of the Client to reinteractive. Client's Representative means an individual authorised by the Client to make binding decisions on behalf of the Client and to perform the Client s obligations under this Agreement; 13 April 2015 Page 15 of 19

16 Confidential Information means information that is or has been disclosed by one party to the other, but does not include any information that is: a) on receipt, in the public domain, or that subsequently enters the public domain without any breach of this Agreement; b) on receipt, already known by the party receiving it; c) at any time after the date of receipt, received in good faith from a third party; or d) required by law to be disclosed; Deliverables means the Software, the System and any other product or service which reinteractive is required to supply to the Client upon completion of the Services; Deployment means Services provided to make the System or Software operational in a Staging Environment or Production Environment; Deployment Service means the product Deployment Service provided by reinteractive to the Client under a Statement of Work. Development Services means any software development services carried out by reinteractive under a Statement of Work. Documentation means any documentation created by reinteractive and provided to the Client to facilitate the Client's understanding of the System or Software; Feature means any Services provided to improve or extend the System's or Software s functionality; Fix means Services provided to correct a fault found within the System caused by software or computer hardware; Force Majeure Event means any war, riot, strike, natural or man-made disaster, other circumstance of a similar nature, or any other event beyond a party s reasonable control; Google Chrome means the Google Chrome web browser desktop version for the Apple Macintosh platform available as the most recent General Release at the Statement of Work commencement date; GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999; Insolvency Event means the occurrence of any of the following events in relation to a party (in each case, the relevant party): a) the relevant party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so; b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the relevant party or any of its assets; c) the relevant party enters into, or resolves to, enter into, a scheme or arrangement, compromise or composition with any class of creditors; 13 April 2015 Page 16 of 19

17 d) a resolution is passed or an application to a Court is taken for the winding up, dissolution, official management or administration of the relevant party; e) any liquidator, receiver or manager enters into possession of any of the assets of the relevant party; f) a mortgagee, chargee or other holder of security, by itself or by or through an agent, enters into possession of all or any part of the assets of the relevant party; g) the relevant party applies for, consents to, or acquiesces in the appointment of a trustee or receiver in respect of the party or any of its property; h) except to reconstruct or amalgamate while solvent on terms approved by the other party to this document, the relevant party enters into or resolves to enter into a scheme of arrangement, compromise or re-construction with its creditors (or any class of them) or with its members (or any class of them) or proposes a reorganisation, re-arrangement, moratorium or other administration of the party s affairs; or i) anything having a substantially similar effect to any of the foregoing events happens. Intellectual Property Rights means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, rights to confidential information and any other intellectual proprietary right or form of intellectual property, and the right to apply to register and enforce the foregoing rights; OaaS Support means Operations as a Service Support and the Deployment Service provided by reinteractive to the Client under a Statement of Work, as described in clause 3 and as further particularised in the Statement of Work; Production Environment means the computer hardware, hosting or ancillary services required to support the proper intended operation of the System. All and any such hardware, hosting or ancillary services shall be charged at the fees specified in a Statement of Work where such services are agreed to be supplied by reinteractive, and where such services are performed by a third party the Client shall be responsible for payment to all such third parties for the services; Professional Services means the technical support, training and other professional services to be provided by reinteractive to the Client in connection with the System, either provided by reinteractive in response to a Client request, or as specified in a Statement of Work; Project means the specific purpose for which the Client has engaged reinteractive to provide Services, as further particularised in the relevant Statement of Work.; reinteractive IP means: a) any pre-existing material or material created by reinteractive independently of this Agreement (including but not limited to, source code) owned by or licensed to reinteractive; or 13 April 2015 Page 17 of 19

18 b) any Deliverables in which the parties expressly agree that all of the Intellectual Property Rights vest in reinteractive as specified in the Statement of Work; Service Period means the period in which Support Services are provided to the Client as specified in the relevant Statement of Work; Services means the services to be provided by reinteractive under this Agreement for the purposes of the Projects, as specified in the Statements of Work; Software means the Documentation, computer software and computer configurations checked into the VCS solely created and where expressly authored by reinteractive as being an original work created in the course of supplying Services to the Client; Staging Environment means a preliminary version of the Production Environment or part thereof that is operating for the Client and reinteractive to test Tasks. All and any hardware, hosting or ancillary services required to support the Staging Environment shall be payable by the Client to reinteractive at the fees specified in a Statement of Work where such services are agreed to be performed by reinteractive, and where such services are performed by a third party the Client shall be responsible for payment to all such third parties for the services; Start Date means as specified in the Statement of Work. Statement of Work means a document executed by both the Client and reinteractive detailing specific services required by the Client including retainers, rates and other charges specific to the work agreed to be performed by reinteractive as well as specific commercial details regarding the parties commercial relationship that are additional to the provisions of this document. Any conflict between the Statement of Work and this document shall be resolved by giving precedence to the executed Statement of Work; Support Hours means the hours during which reinteractive will be available to provide Support Services to the Client, which are 24 hours a day 7 days per week for Client s who have purchased OaaS Support or 9am till 5pm Working Days in Sydney, Australia for all other reinteractive clients, unless and to the extent otherwise specified in the relevant Statement of Work. Support Services means the technical support and training Services to be provided by reinteractive to the Client in connection with the System, as specified in a Statement of Work; System Infrastructure means the running system built on top of a Client supplied AWS Account paid for by the Client and managed and maintained by reinteractive. Task means any Deployment, Documentation, Fix, Feature or other Services provided by reinteractive to the Client for the purposes of a Project under this Agreement; VCS means a Version Control System used by reinteractive to record all incremental changes to the Software created by reinteractive on behalf of the Client for the purposes of a Project. The type of Version Control System used in each Project shall be defined in the relevant Statement of Work; and 13 April 2015 Page 18 of 19

19 Working Day means a day that is not a Saturday, Sunday or statutory holiday in New South Wales, Australia. 18. INTERPRETATION In this Agreement: a) headings and underlinings are for convenience only and do not affect the interpretation of this agreement; b) a reference to currency is to Australian dollars unless otherwise explicitly stated; c) a reference to time is to Australian Eastern Standard Time; d) the words including, includes and similar words are not words of limitation; e) a provision of this agreement will not be interpreted against a party just because that party prepared or was responsible for the preparation of the provision; f) a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it; g) a reference to a document includes an amendment or supplement to, or replacement or novation of, that document. ooo 13 April 2015 Page 19 of 19