Master Terms and Conditions

Effective from XX/XX/XX

Background

1. The Client has requested that Momentum assist with the Project.
2. Momentum has agreed to carry out certain Work relating to the Project on the terms set out in this agreement.

Operative provisions

1. Term

1.1. Commencement and expiration

This agreement begins upon execution of the Proposal and continues until the earlier of

1. completion of the Work; or
2. termination under the provisions of this agreement,
   (Term).

2. Work

2.1. Performance

1. Momentum will perform the Work in accordance with this agreement.
2. Momentum will carry out the Work in accordance with the Scope of Work.

2.2. Skills & qualifications

Momentum will ensure that its Personnel who perform the Work on its behalf are competent, exercise due care and skill and have the experience necessary to carry out the Work.

2.3. Provision of Client Materials, instructions and access to software

The Client agrees to:

1. provide all Client Materials to Momentum necessary for it to perform the Work in accordance with the Scope of Work;
2. supply clear directions regarding the Scope of Work, and respond to any questions about the Scope of the Work promptly and clearly;
3. assign suitable, trained and experienced Personnel to attend to the Client Action Items;
4. promptly attend to the Client Action Items in accordance with the Proposal;
5. respond in a timely manner if Momentum brings an issue to the Client’s attention in relation to the Client’s Data, the Client’s software, equipment, hardware, data or network that affects the performance of the Work;
6. promptly provide Momentum with access to any software, platform, or hardware reasonably necessary for Momentum to perform the Work and pay any additional licence fees or costs associated with granting such access; and
7. notify Momentum in writing as soon as reasonably practicable of any information or material event relevant to the Work, including, but not limited to, details of any changes to key Personnel, access codes or any hardware or software.

2.4. Access authority

1. Where Momentum requires access to the Client’s business premises to perform the Work, the Client must provide or arrange:

1. access and a safe working environment in compliance with all occupational health and safety laws; and
2. for Momentum’s employees or contractors to have adequate workspace, light, ventilation, electric current and outlets, internet and telephone access as necessary when at the Client’s business premises.

2. If the Client fails to satisfy its obligations under clause 2.4.a. Momentum may suspend performance of the Work until such access is granted, without liability for any resulting delay.

2.5. Remote Access

Where Momentum requires remote access to perform the Work, the Client must:

1. promptly facilitate remote access to any software, databases or systems necessary for Momentum to perform the Work;
2. provide any necessary authorisations and passwords to access the Client’s database and software; and
3. at its own cost, make copies or duplicates of such database and its data as reasonably requested by Momentum.

2.6. Client Obligations

The Client agrees to ensure that:

1. the Client’s Personnel action the tasks assigned to them in the Project Plan or other Project artefacts within the timeframes outlined in the Proposal;
2. the Client and its Personnel’s comply with the EULA and the Software Licence;
3. the Client holds all Authorisations necessary to deal with the Legacy Software and the Client Data in order to carry out the Project.

3. Changes to Work

3.1. Changes to the Scope of Work

1. The Client may request variations to the Scope of Work.
2. Momentum, at its sole discretion, may agree in writing to provide variations to the Scope of Work as Additional Work.

3.2. Urgent or out of hours Work

1. The Client may request that Momentum carry out the Work:

1. within an urgent timeframe; and
2. ii. outside of Business Hours,
   (Urgent Work).

2. Momentum, in its discretion, may agree to provide Urgent Work as Additional Work for Additional Fees.

3.3. Additional work

1. Momentum may treat the changes to the Scope of Work or Urgent Work as Additional Work, provided the Client is notified of and agrees to the relevant Additional Fees in advance and any changes to delivery of Deliverables.
2. Momentum will charge the Additional Fees for any Additional Work Momentum delivers.
3. This agreement will continue to apply to the Work as amended.

3.4. Changes to Work

Momentum may modify the Work to ensure the Client continues to receive the best possible outcomes having regard to technological and commercial developments generally. Momentum will give the Client reasonable notice of any material changes and ensure that the replacement services meet or exceed the original standard.

4. Delivery and acceptance of Work

4.1. Review of work

1. Momentum will provide the Deliverables for the Client’s testing, review and approval at the times set out in the Proposal.
2. Subject to this clause and the licence granted under clause 10.3, the Client will have no right of access to any work in progress prior to its delivery, and no right, title or interest in any Deliverable until acceptance of that Deliverable under clause 4.3 and payment in full of all fees applicable to that Deliverable (if any) as set out in the Proposal.  

4.2. Delivery

1. Momentum is not responsible for delays in delivery of the Work and Deliverables caused or contributed to by:

1. the delays, action or inaction of any third party (including the Client’s contactors);
2. the delays, action, operation, inaction, or failure of any third party service, software, hardware or equipment;
3. the Client’s delay in actioning Client Action Items necessary to undertake the Work;
4. errors in Client Data;
5. changes in the Scope of Work (whether requested by the Client, or required by Momentum pursuant to this agreement);
6. any Force Majeure Event; or
7. Momentum exercising its rights under clause 14.1;

2. If any of the events stated under clause 4.2.a cause a delay, Momentum may, by notice to the Client, extend the delivery date as Momentum deems reasonable.

4.3. Acceptance of Deliverables

1. Upon delivery of a Deliverable, it is the Client’s responsibility to assess and test the Deliverable to confirm the Scope of Work has been fulfilled and meets the Client’s requirements.
2. The Client must give Momentum notice within 5 Business Days of delivery, if the Client, acting reasonably, considers that the Deliverable contains a Fault. The notice must clearly identify the ways in which the Deliverable does not meet the agreed Scope of Work.
3. Momentum must correct the Fault to ensure the Deliverable meets the Scope of Work and present the Deliverable to the Client for acceptance within 10 Business Days (or such other period the parties agree to).
4. The parties will repeat the process in clause 4.3.b until the Deliverable meets the requirements of the Scope of Work;
5. The Deliverable is deemed to be accepted if the Client confirms acceptance of the Deliverable, or if Momentum does not receive a notice under clause 4.3.b within 10 Business Days of delivery of the Deliverable.
6. The parties acknowledge that delayed acceptance of a Deliverable will impact upon the delivery timeframe of all future Deliverables. As such, deadlines for all Deliverables will be extended by the same duration as acceptance of a current Deliverable is delayed.
7. Any changes the Client requests to a Deliverable once it has been deemed accepted (including changes to content) will be treated as Additional Work for which Momentum may charge Additional Fees accordingly.

5. Support Work

5.1. Support Work

1. For the duration of the Support Period and subject to clause 5.2, Momentum will provide the Client with support advice, trouble shooting and Fault rectification (Support Work).
2. Support Work is available during Business Hours.

5.2. Support exclusions

The following does not constitute Support Work:

1. The following does not constitute Support Work:

1. modifications to the Scope of Work requested by the Client;
2. fixing errors or missing Client Data supplied by the Client;
3. reconfiguring Data Mapping at the request of the Client.

2. If Momentum, reasonably determines that the Client request is not Support Work, then it will be deemed to be ‘Additional Support Work,’ and Momentum may charge Additional Fees as follows:

1. Momentum may charge the Client a reasonable amount for the time spent diagnosing the issue;
2. If the Client requests, and Momentum agrees, to carry out the Additional Support Work, Momentum may issue the Client a Tax Invoice for works undertaken at Momentum’s hourly rates as advised from time to time in accordance with this agreement.

3. If the Client requires ongoing Additional Support Work that can be provided under a separate proposal for the Client’s approval.
4. The Client may prepay for Additional Support Work on the terms contained in the Software Services Plan.

6. Software

6.1. Target Software

1. The Client must enter into a Software Licence with the Software Licensor of the Target Software before the Target Software can be installed.
2. The Client will be responsible for paying licence fees for the Target Software to the Software Licensor.

6.2. Ancillary Software

If the Proposal refers to any Ancillary Software, then the following will apply:

1. Momentum agrees to sublicence the Ancillary Software to the Client and warrants that it holds the required Authorisations from the relevant of the Software Licensor;
2. The Client must pay Momentum the licence fees specified in the Proposal for the Ancillary Software.

6.3. Software disclaimer

1. The Client should make its own enquiries in relation to the Software and Momentum makes no representation that the Software:

1. is free from defects;
2. will meet the Client’s particular objectives or needs;
3. is fully compatible with the Client’s existing business processes and operations.

2. Momentum will not be liable for any loss or damage suffered by the Client in connection with the Client’s use of the Software.

7. Payments

7.1. Deposit 

1. Momentum may stipulate in the Proposal that the Client pay a Deposit for any Work and is not obliged to commence that Work until it has received the Deposit in cleared funds.
2. Momentum may utilise the Deposit to recover any amounts payable by the Client to Momentum under this agreement or to compensate itself for any loss, liability or expense suffered or incurred by it as a result of any breach of this agreement by the Client.

7.2. Invoicing and payment

1. Momentum will issue the Client with a Tax Invoice for the Fees and Costs on each Payment Date.
2. Each Tax Invoice:

1. must be sent to the Client in accordance with clause 16.1; and
2. is payable no later than 10 Business Days from the date of the Tax Invoice or as otherwise specified in the Proposal.

3. All amounts payable under this agreement are payable by the Client via the Payment Method, unless the parties agree otherwise.
4. The Client must pay all Fees without deduction, set-off or counterclaim.

7.3. Third Party Charges

Momentum may pass on to the Client any increases in third party supplier or service provider fees (including increases due to variations in exchange rates). Momentum will provide notice of any such increases as soon as practical.

7.4. Processing fees

The Client must reimburse Momentum for any processing, transaction, dishonour or charge-back fees issued by a financial institution or payment gateway in the course of making payment.

7.5. Set-off

Momentum may deduct or set-off any amount it owes to the Client from any amount owed to it by the Client.

7.6. GST

1. Unless expressly stated otherwise, all fees are shown exclusive of GST. If any GST is imposed on a Taxable Supply under this agreement, the Client must pay the GST amount in addition to any amount payable under this agreement.
2. Momentum will itemise any applicable GST on each Tax Invoice.

7.7. Other taxes

1. The consideration for a supply made under or in connection with this document does not include any forms of taxation and statutory, governmental, state, federal, provincial, local, government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities arising under any jurisdictions outside of Australia; and any penalty, fine, surcharge, interest, charges or costs relating thereto (Tax).
2. If a supply made under or in connection with this document is subject to a Tax, then at or before the time any part of the consideration for the supply is payable the Client must pay Momentum an amount equal to the total Tax for the supply, in addition to and in the same manner as the consideration otherwise payable under this document for that supply.

7.8. Fee disputes

1. If the Client wishes to dispute a Tax Invoice, the Client must:

1. notify Momentum before the due date for payment of the Tax Invoice;
2. provide detailed information about why any amounts payable are disputed; and
3. pay all undisputed amounts on the Tax Invoice.

2. Momentum must reasonably assess the merits of the Client’s dispute and provide notice of its determination to the Client within 10 Business Days of receiving the notice under clause 7.8.a.
3. If Momentum reasonable determines that the dispute is without merit, the Client:

1. must pay the disputed amounts within 5 Business Days of Momentum providing the Client with notice of its determination under clause 7.8.b;
2. may issue a Dispute Notice under clause 13.

4. If Momentum reasonable determines that the dispute has merit under clause 7.8.b, if:

1. the disputed amount has not been paid by the Client, then the Client will have no obligation to pay the disputed amount; or
2. the disputed amount has been paid, then Momentum must refund the Client the disputed amount within 10 Business Days.

7.9. Variation of Fees

Momentum may increase its hourly rates effective from 1 July each year by giving one month’s prior notice to the Client.

7.10. Credit Policy

1. Momentum may require credit approval for the Client to ensure Momentum is satisfied with the Client’s credit rating, from time to time.
2. The Client acknowledges and agrees to:

1. Momentum disclosing to a credit reporting agency personal information relating to the Client that is in Momentum’s possession;
2. provide additional information if requested by Momentum to properly assess the Client’s credit rating.

7.11. Software licence fees

1. The relevant Software Licensor will invoice the Client directly for any licence fees relating to the Target Software.
2. The Client must pay the software licence fees to the relevant Software Licensor in accordance with the terms of the Software Licence applying to the Target Software.
3. The licence fees associated with any Ancillary Software set out in the Proposal will be included as Costs on the Tax Invoices issued by Momentum.

8. Warranties and liability

8.1. Warranties

1. Each party warrants that:

1. it has the power and authority to enter into this document and do everything contemplated by this document;
2. it is not subject to an Insolvency Event; and
3. it has had the opportunity to obtain its own legal advice with respect to this document.

2. The Client warrants that:

1. the Client holds all Authorisations necessary to authorise Momentum to perform the Work;
2. providing the Work as per the Client’s instructions will not contravene any applicable laws or third party Intellectual Property Rights;
3. the Client has the right and Authority to grant Momentum access to the Client Data, Client Materials and the Legacy Software for the purposes of this agreement; and
4. it has had the opportunity to obtain its own legal advice with respect to this document.

3. Momentum warrants that:

1. it holds all Authorisations necessary to perform the Work;
2. the Work will be undertaken by Momentum with due care and skill; and
3. the Momentum Personnel are appropriately trained and experienced to carry out the Work.

4. Each warranty is repeated for the duration of the Term of this agreement.

8.2. Service limitations

Momentum will apply reasonable effort in performing the Work and will endeavour to remedy any Faults in the Work for which Momentum is responsible within 20 Business Days. However, other than as set out in the Scope of Work and this agreement, to the fullest extent permitted by law:

1. Faults and Disruptions: Momentum does not take responsibility for defects or interruptions in the Work or Deliverables caused or contributed to by:

1. errors in Client Data or Client Action Items;
2. a Force Majeure Event;
3. delays, action or inaction of any third party or the Client;
4. the Software or any other Client software, hardware, equipment or network; or
5. any defect, delay, act or omission or failure of a third party service, software, hardware or equipment.

2. Disaster Recovery and Backup: Momentum is not responsible for providing backup or disaster recovery services to the Client, including for Client Data or any Deliverables.
3. Security: except as expressly set out in this agreement, Momentum is not responsible for any Loss suffered by the Client arising from computer hacking, malware or Client Data loss caused by an act or omission of the Client or a third party;
4. Exclusions: Momentum provides no services in relation to the Exclusions under this agreement.

8.3. Release

The Client agrees to release Momentum from responsibility for any Claim, Loss or Liability arising from or in connection with:

1. any service limitation specified in clause 8.2;
2. any failure to carry out or errors in the Client Action Items;
3. the impact of any third parties, such as hosting service providers and Software Licensors, on the usability and accessibility of the Deliverables;
4. any downtime, interruption, hardware or software failure suffered by the Client; and
5. any Fault in a Deliverable which the Client should have reasonably identified pursuant to its obligations under clause 4.3.

8.4. Limitation of Liability

1. To the extent permitted by law, Momentum:

1. does not provide any guarantee or warranty or make any representation with respect to the Work or Deliverables except as expressly set out in this agreement; and
2. disclaims all liability for any Claim or Loss howsoever arising directly or indirectly in connection with the Work and the Deliverables except to the extent that a negligent act or omission of Momentum caused the Claim or Loss to arise.

2. Where Momentum’s liability under this agreement cannot be fully disclaimed, Momentum’s liability is limited to (at Momentum’s election) the:

1. payment of the cost of having the Work supplied again; or
2. supplying the Work again; or
3. a refund of the amount the Client has paid Momentum for those Work;

3. Despite any other provision to the contrary, Momentum’s total liability in connection with this agreement (including for any Loss arising from negligence) will not exceed an amount equivalent to the total fees received by Momentum from the Client under this agreement in the preceding 12-month period.
4. Nothing in this agreement excludes, restricts or modifies or has the effect of excluding, restricting or modifying any condition, warranty guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) which by law cannot be excluded, restricted or modified.

9. Indemnity

The Client indemnifies Momentum, its Affiliates and Personnel from and against any Claim, Loss or Liability, howsoever arising, which Momentum suffers or incurs arising directly or indirectly out of, or in connection with:

1. any breach of this agreement by the Client or its Personnel;
2. death of or personal injury to Momentum’s Personnel, suffered while working at the Client’s business premises;
3. any damage to or loss of any equipment, software, network or other tangible property of Momentum’s or any third party to the extent that such loss is caused by an act or omission, of the Client or any of the Client’s Personnel;
4. a third-party Claim against Momentum to the extent that the claim relates to any act or omission of the Client or any of the Client’s Personnel in performing their obligations under this agreement;
5. a third-party Claim against Momentum (excluding claims for death, personal injury or damage to tangible property) arising from or in connection with the supply or cessation of supply of the Work.

10. Intellectual Property

10.1. Client Materials

1. As between the parties, at all times, the Client retains all right, title and interest which it holds in the Client Materials and, subject to clause 10.1.b, such rights are not transferred or assigned to Momentum under this agreement.
2. The Client grants to Momentum a non-exclusive, irrevocable, royalty-free, perpetual, sublicensable licence to use, copy, supply, publish, communicate, create derivative works from, modify and adapt the Client Materials as necessary to perform the Work and otherwise to comply with its obligations under this agreement.

10.2. Momentum Materials

As between the parties, at all times, all right, title and interest in Momentum Materials and the Deliverables is owned, and vests upon creation in, Momentum and, subject to clauses 10.3 and 10.4, such rights are not transferred or assigned to the Client under this agreement.

10.3 Licence to use Momentum Materials

Momentum grants the Client a royalty-free, non-exclusive, revocable, non-sublicensable, limited licence to use the Momentum Materials solely for the purpose of the Client exercising its rights and obligations under this agreement during the Term.

10.4. Limitations on licence

1. The licence granted under clause 10.3:

1. is not transferable or assignable without Momentum’s prior written consent; and
2. may not be sub-licensed except as reasonably necessary for the Client to maintain the Momentum Materials.

1. Without limiting the Client’s rights at law, and subject to any conflicting rights granted by this agreement, the Client must not, without Momentum’s prior written consent:

1. sell, sublicense, rent, lease, lend, modify, alter, translate, reproduce, transmit, distribute, adapt, or edit any part of the Momentum Materials;
2. use the Momentum Materials other than for the purpose for which they were developed;
3. decompile, reverse engineer or disassemble any part of the Momentum Materials, disclose the algorithmic nature or describe any part of the Source Code or inner workings of any part of the Momentum Materials;
4. copy the Momentum Materials, in whole or in part, except that:

1. the Client may make copies of the Momentum Materials for the Client’s own data recovery purposes, or otherwise as permitted by law. The Client may use a backup copy of the Momentum Materials only to reinstall in the event of damage or loss, subject to the terms of this agreement. The Client acknowledges that any backup copy of the Momentum Materials is and remains at all times the property of Momentum;

5. combine or incorporate the Momentum Materials in any program or system unless this was an intended outcome of the Work;
6. use any Momentum Materials other than in accordance with its specifications and this agreement;
7. use any Momentum Materials for any unlawful purpose; or
8. authorise any other party to do any of the acts in this clause 10.4.b.

10.5. Assignment of Deliverables

Subject to receipt by Momentum of full payment for the Work, and any other amount payable by the Client under this agreement, Momentum will assign all rights in the Deliverables to the Client.

11. Confidentiality

1. Each party acknowledges that in the course of performing its obligations under this agreement, it may receive Confidential Information.
2. Subject to clause 11.c, each party agrees not to use or disclose Confidential Information of the other party without the prior written consent of that party.
3. Either party may use or disclose Confidential Information of the other party only to the extent necessary to:

1. carry out its rights and obligations under this agreement, whilst ensuring that its officers, employees or contractors are bound by the same confidentiality obligation where Confidential Information is disclosed to them for this purpose;
2. comply with any law, regulation or a court order;
3. comply with the listing rules of any stock exchange on which its securities are listed; or
4. obtain professional advice in relation to matters arising under or in connection with this document where the advisors agree to be bound by the same obligation of confidentiality.

4. At the request of a party, the other party must destroy all Confidential Information received and must not retain any copies of, or other reproductions or extracts of, the Confidential Information, except as it may retain in accordance with prudent business practices. Any retained material must remain confidential pursuant to this clause.

12. Privacy and data security

12.1. Privacy and compliance

Momentum must:

1. in the course of performing the Work comply with all applicable Australian privacy laws and such other data protection and portability laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information, and not cause the Client to be in breach of these laws as a result of carrying on the Work; and
2. comply with any reasonable direction of the Client that is consistent with the laws, codes and policies referred to clause 12.1.a

12.2. Data security

Without limiting any other obligations under this clause 12, Momentum must (and must ensure that Momentum Personnel):

1. restrict access to any of the Client Data to Momentum Personnel who need to access the  Client Data to fulfil Momentum’s obligations under this agreement and in any event, not disclose the Client Data other than to Momentum’s Personnel without the Client’ prior written consent;
2. take reasonable steps to protect the Client Data from data breaches in accordance with industry best practice;
3. ensure that all the Client Data is segregated (either virtually or physically) from Momentum’s own data or that of Momentum’s other Clients;
4. provide appropriate training to Momentum Personnel with respect to the correct handling of the Client Data so as to minimise the risk of accidental or malicious security breaches; 
5. ensure that its physical and IT security systems only permit properly authorised Momentum Personnel to access the Client Data;
6. not sell, licence or otherwise deal with or commercially exploit any Client Data; and
7. not alter the Client Data except as required to perform its obligations under this agreement.

12.3. Data Breach

If Momentum becomes aware of a Privacy Data Breach:

1. Momentum must notify and provide the Client with the following details:

1. the kind or kinds of information concerned;
2. the volume of information concerned;
3. the individuals (or classes of individuals) to which the information relates;
4. the form or manner in which the information was stored (including whether it was encrypted or protected by other security measures);
5. the likelihood that security measures or encryption (if any) can be circumvented; and
6. the kinds of persons who could have obtained unauthorised access to the Client Data;

2. Momentum must take all available steps to:

1. assist the Client in reporting Privacy Data Breach to the relevant Government Agency; and
2. mitigate against the adverse effect and harm arising from a Privacy Data Breach.

13. Dispute Resolution

13.1. Informal dispute resolution

1. If a dispute arises in relation to the rights and obligations of the parties under this agreement (where a right of termination has arisen pursuant to clause 14.2.a), (the Dispute), the party raising the Dispute, must, in the first instance, provide the other party with details of the Dispute (Dispute Notice).
2. The parties must use their best endeavours and act in good faith to attempt to resolve the Dispute within 25 Business Days from receipt of the Dispute Notice (Dispute Period).
3. Each party must ensure that a senior representative with authority to settle the Dispute on behalf of that party is available for negotiation at all reasonable times during the Dispute Period

13.2. Legal Proceedings

1. No party may commence court proceedings unless the Dispute remains unresolved after the conclusion of the Dispute Period.
2. Nothing in this clause 13 prevents either party seeking urgent interlocutory relief from a court in relation to any breach or potential breach of an obligation of confidentiality or in relation to any other matter of urgency.

14. Suspension and Termination

14.1. Suspension

If the Client fails to pay a Tax Invoice by the due date or is otherwise in breach of this agreement and fails to remedy that breach within 10 Business Days of receiving notice of the breach from Momentum (Breach), then, without prejudice to Momentums’ other rights or remedies, until the Breach is remedied, Momentum reserves the following rights:

1. to immediately suspend performance of any or all Work;
2. to charge for interest on overdue amounts at a rate of 5%, compounded daily from the due date of the relevant Tax Invoice;
3. delay any delivery date for the Deliverables or go-live date, suspend any hosting, accounts, or server access relevant to the Work; and
4. to retain a lien over all equipment, materials, data and work in progress, including those owned by the Client in Momentum’s possession and control.

14.2. Termination

1. Momentum may terminate this agreement immediately if the Client:

1. fails to make a payment when due under this agreement;
2. experiences an Insolvency Event;
3. fails to remedy a Breach; or
4. engages in any act or omission which is illegal or which Momentum reasonably considers is likely to damage the reputation of, or result in a Claim against, Momentum.

2. The Client may terminate this agreement immediately if Momentum:

1. breaches a material term of this agreement that cannot be remedied; or
2. breaches a term of this agreement which can be remedied, but fails to do so within 25 Business Days of receiving written notice to do so from the Client;
3. experiences an Insolvency Event;
4. engages in any act or omission in relation to the Work which is illegal or which is likely to damage the reputation of, or result in a Claim against, the Client.

14.3. Effect of termination

1. If this agreement ends for any reason, then in addition to any other rights Momentum may have:

1. Momentum will cease providing the Work and the Deliverables;
2. all outstanding Tax Invoices issued to the Client become immediately due and payable;
3. Momentum may issue a Tax Invoice for work in progress;
4. Momentum may retain a lien over all Deliverables, Momentum Materials, work in progress until all outstanding Tax Invoices have been paid in full;
5. no licence with respect to the Deliverables or Momentum Materials is created in favour of the Client under this document until all outstanding Tax Invoices are paid;
6. Momentum will refund to the Client any Upfront Fees or Deposit relating to any portion of the Work which have not been commenced as at the date of termination;

2. Where this agreement is terminated under clause 14.2.a, the Client is liable by way of liquidated damages for all amounts payable under this agreement plus Momentum’s costs of debt collection and enforcement, including legal fees on a solicitor and own client basis.

15. Restraint

1. Momentum and the Client must not, during each Restraint Period:

1. induce, solicit or canvass, approach or accept any approach from, any person who was at any time during the six-month period ending on the date on which this agreement is terminated Momentum or Client Personnel;
2. seek to engage or engage the services of any of Momentum’s or Client Personnel; or
3. induce or help to induce any Momentum or Client Personnel to leave their office or employment.

2. If either party engages the other party’s Personnel during the Restraint Period, the party in breach of this clause must pay a Recruitment Fee to the other within 25 Business Days of receiving a Tax Invoice for the Recruitment Fee.
3. The parties agree:

1. the restraints in clause 15.a are separate from one another and if any of them is unenforceable the rest are unaffected;
2. that any combination of the acts referred to in clause 15.a is unfair and calculated to damage the party and its business; and
3. that each of the restraints in clause 15.a is reasonable in its extent (as to duration and restrained conduct) considering the interests of each party to this document and goes no further than is reasonably necessary to protect the interests of the parties’ business (including the goodwill thereof).
4. The parties agree that the Recruitment Fee is not a penalty but represents a reasonable estimate of fair compensation for the costs of recruiting, hiring and training a suitable replacement for the Personnel.

16. General

16.1. How notice is to be given

1. A notice, consent or communication under this document is only effective if it is:

1. in writing, signed by or on behalf of the person giving it;
2. addressed to the person to whom it is to be given; and
3. given as follows:

1. delivered by hand to that person’s address;
2. sent to that person’s address by prepaid mail or by prepaid airmail, if the address is overseas; or
3. sent by email to that person’s nominated email address.

2. A notice, consent or communication given under clause 16.1.a is given and received on the corresponding day set out in the table below. The time expressed in the table is the local time in the place of receipt.

If a notice is	It is given and received on
Delivered by hand or sent by email	a. That day, if delivered by 5.00pm on a Business Day; or b. the next Business Day, in any other case.
Sent by post	a. Three Business Days after posting, if sent within Australia; or b. seven Business Day after posting, if sent to or from a place outside Australia.

3. The parties contact details are as set out in the Proposal or as the person notifies to the other party or parties at any time in writing.

16.2. Amendments

Except where expressly provided otherwise herein, this document may only be amended by written agreement between all parties.

16.3. Assignment

A party may only assign or novate this agreement, and its rights and obligations thereunder, in part or in whole with the prior written consent of the other party. Upon assignment or novation, the parties’ obligations and benefits under this agreement are binding on and shall benefit their respective Personnel, successors and assigns.

16.4. Counterparts

This document may be signed in any number of counterparts. All counterparts together make one instrument.

16.5. Consent to Electronic Signature

Either party may sign electronically an electronic copy of this document and bind itself accordingly. Any copy signed electronically by a party will constitute an executed original counterpart. In addition, any print-out of a signed soft copy will also be an executed and delivered original counterpart.

16.6. No merger

The rights and obligations of the parties under this document do not merge on completion of any transaction contemplated by this document.

16.7. Costs

All stamp duty, government charges and legal fees incidental to this agreement, specifically including all legal fees incurred in enforcing this agreement on a solicitor own client basis, are payable by the Client.

16.8. Sub-contracting

Momentum may, from time to time, appoint agents, sub-contractors or other types of third parties to perform any part of its obligations under this agreement at its own expense.

16.9. Force majeure

Neither party is liable for any delay or failure to perform its obligations under this agreement (except to pay any amount) to the extent that such failure is caused by a Force Majeure Event.

16.10. Surviving Clauses

Clauses 9, 10, 11, 12, 13, 14.3, 15, 16 and 17 survive termination or expiry of this agreement.

16.11. Relationship between the parties

This document does not create a relationship of employment, trust, agency or partnership between the parties.

16.12. Governing Law and Jurisdiction

1. Queensland law governs this document.
2. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts.

16.13. Severability

1. A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.
2. If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from this document in the relevant jurisdiction, but the rest of this document will not be affected.

16.14. Waiver

1. The failure of a party to require full or partial performance of any provision of this document does not affect the right of that party to require that performance subsequently.
2. A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
3. A right under this document may only be waived in writing signed by the party granting the waiver and is effective only to the extent specifically set out in that waiver.

16.15. Entire agreement

To the extent permitted by law, this agreement contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the subject matter of this agreement.

17. Definitions and interpretation

17.1. Definitions

In this document:

Defined term	Definition
Additional Fees	means the fees for any Additional Work.
Additional Support Work	has the meaning given to that term in clause 5.2.c.
Additional Work	means any services provided by Momentum to the Client, which is outside the Scope of Work including, but not limited to fees for Additional Work, Additional Support Work and Urgent Work.
Ancillary Software	means the software referred to in the Proposals as the ‘Ancillary Software’ which will be used by the Client in conjunction with the Target Software.
Authorisation	means an approval, authorisation, consent, declaration, exemption, notarisation, licence, quota, permit or waiver, however described, and any condition attaching to it.
Business Day	means a day that is not a Saturday, Sunday or public/bank holiday in Maroochydore, Queensland.
Business Hours	means 9 am to 5 pm Australia Eastern Standard Time on any Business Day.
Claim	means any claim, action, proceeding or demand, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Client	means ‘the Client’ specified in the Proposal.
Client Action Items	means action items assigned to the Client (and including its Personnel) in the Proposal.
Client Data	means the Client’s data as described in the Proposal.
Client Materials	means the Client Data and any other data, documents and any other materials, in any form, created or owned by the Client and which is provided to Momentum by the Client for the purposes of this agreement, including all Intellectual Property Rights therein.
Confidential Information	means all information in relation to a party (Discloser) which: a. is by its nature confidential; b. the Discloser indicates is confidential; or c. the receiving party (Recipient) ought to know is confidential; other than information that the Recipient can establish: a. was in the public domain when it was given to the Recipient; b. becomes, after being given to the Recipient, part of the public domain, except through disclosure contrary to this agreement; c. was in the lawful knowledge and possession of the Recipient before it was disclosed to the Recipient, or was otherwise developed independently by the Recipient without reference to or use of any of the Discloser’s Confidential Information; or c. was lawfully received by the Recipient from another entity having the unrestricted legal right to disclose that information without requiring the maintenance of confidentiality.
Data Fields	means a function within software that allows the user to insert variable data (data entry) or the software to determine the value of the data (data output).
Data Mapping	means matching Data Fields in the Legacy Software to Data Fields in the Target Software.
Deliverables	means all data, information, spreadsheets, documents and any other materials, created or developed by Momentum as part of the Work including all Intellectual Property Rights therein, where those materials are specified as Deliverables in the Proposal.
Deposit	any funds deposited by the Client at the request of Momentum for future Work to be carried out which is charged on a time basis.
EULA	means the end user licence agreement of the Software Provider, relating to the Software.
Exclusions	has the meaning given to it in the Proposal.
Fault	means an issue with a Deliverable which: a. results in the Deliverable not meeting the agreed specifications in the Scope of Work; and b. materially affects the performance of the Deliverable; and c. is not attributable to incompatibility with third party software or hardware unless the Scope of Work states that the Deliverable will be compatible with that particular third party software or hardware; and d. Momentum is able to replicate the issue under test conditions.
Fees	means the fees for the Work determined pursuant to this agreement.
Force Majeure Event	means any of the following: a. an act of God including but not limited to pandemics, fires, floods, earthquakes or any other natural disasters; b. war, terrorism, riot, insurrection, vandalism or sabotage; c. strike, lockout, ban, limitation of work or other industrial disturbance; or d. law, rule or regulation of any government or governmental agency, and executive or administrative order or act of general or particular application, which is: a. unforeseen by the affected party; b. is beyond the control of the affected party; and c. occurs without the fault or negligence of the affected party.
Go-Live Date	means practical completion of the Project.
GST	has the same meaning as in the GST Act.
GST Act	means A New Tax System (Goods and Services Tax) Act 1999 as amended.
Insolvency Event	in relation to a party means any of the following: a. the party enters into an arrangement with creditors, commits an act of bankruptcy or is charged with a criminal offence; b. the party resolves to wind itself up, or takes steps to appoint an administrator or receiver, or is placed under official management; or c. judgment is entered against the party for more than $20,000.00, which remains unsatisfied or un-appealed for more than 15 Business Days.
Intellectual Property Rights	means: a. all present and future industrial, intellectual or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, domain name licences; trademarks, designs, trade secrets, business name, know-how, inventions, confidential information and circuit layouts; and b. all statutory and common law rights including the right to sue for damages and other remedies against third parties for infringement or misuse of the related intellectual property, whether or not the infringement or misuse took place before the date of this document and retain all amounts recovered in any action (whether as to damages, or following an account of profits or on any other basis) obtained as a result of any such action.
Legacy Software	the software listed in the Proposal as the ‘Legacy Software’ from where the Client Data is migrated from.
Liability	includes liabilities, duties and obligations of any nature affecting the person concerned, however arising, including penalties, fines and interests, and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
Loss	includes losses, damages, costs (including legal costs), expenses and liabilities, however arising, including those that are prospective or contingent and those the amount of which is not ascertained or ascertainable, and includes, without limitation, loss of profit or expected profit, and diminution in value, data loss, loss of opportunity, loss of use, loss of goodwill, and all other pure economic loss.
Momentum Materials	means all data, information, branding, software, code, spreadsheets, documents and any other materials, in any form: a. owned by Momentum and which existed prior to commencement of this agreement; b. created, improved, invented or developed by Momentum in connection with or during the course of this agreement (other than the Deliverables); including all Intellectual Property Rights therein.
Moral Rights	means: a. the right of integrity of authorship; b. the right of attribution of authorship; c. the right not to have authorship falsely attributed; d. including those rights as conferred by the Copyright Act 1968 (Cth) and rights of a similar nature anywhere in the world whether existing before, on or after the commencement of this document.
Payment Date	means the date when Tax Invoices may be issued, as set out in the Proposal.
Payment Method	has the meaning given to that term in the Proposal.
Personnel	an officer, employee, contractor or agent of a party.
Privacy Data Breach	has the meaning given to it under the Privacy Act 1988 (Cth).
Project	means the Project described in the Proposal, which involves configuring and installing the Target Software and transfer the Client Data from the Legacy Software to  the Target Software.
Project Plan	means the plan for carrying out the Project which will be prepared by Momentum in consultation with the Client as described in the Proposal.
Proposal	means the document provided in conjunction with these terms and conditions which sets out, without limitation, the Work, Payment Date, Scope of Work, Fees, and Payment Method.
Recruitment Fee	means liquidated damages in an amount equal to the total of all amounts paid by Momentum to the relevant Personnel in the preceding 12 months.
Restraint Period	means each of the following: a. the period starting when this agreement is executed and ending 12 months from the date this agreement is terminated; b. the period starting when this agreement is executed and ending 6 months from the date this agreement is terminated; c. the period starting when this agreement is executed and ending 3 months from the date this agreement is terminated.
Scope of Work	means the specifications for the Work to be performed under this agreement as set out in the Proposal, or as varied under the terms of this agreement.
Work	means the work set out in the Scope of Work, plus any Additional Work, Additional Support Work or Urgent Work as agreed to by the parties in accordance with this agreement.
Software	means the Target Software and the Ancillary Software referred to in the Proposal.
Software Licence	means the licence for the use of the Software.
Software Licensor	means the developer of the Software used by the Client and supported by or implemented by Momentum.
Software Services Plan	means the offer to provide ongoing Additional Support Work as set out in the ‘Software Services Plan’ here.
Source Code	means the collection of computer instructions written in human-readable computer language used to control compilation, installation, and execution of the corresponding Momentum Materials.
Support Period	means 10 Business Day from receipt of a Deliverable and also 10 Business Day from the Go-Live Date.
Support Work	means the support services provided by Momentum to the Client which are specified in the Proposal.
Target Software	means the software listed in the Proposal as the ‘Target Software’ to where the Client Data is to be migrated to.
Tax Invoice	has the meaning given to that term in the GST Act.
Taxable Supply	has the meaning given to that term in the GST Act.

17.1. Paramountcy

This agreement consists of the following parts:

1. this document;
2. the Software Service Plan;
3. the Proposal.

17.3. Inconsistency

If there is an inconsistency between any of the terms in those documents listed in clause 17.2, the document listed first prevails to the extent necessary to resolve the inconsistency.

17.4. Commissions

The Client acknowledges that Momentum may receive commissions from Software Licensors.

17.5. Client documents

If the Client (or any person on the Client’s behalf) purports to impose upon Momentum or incorporate into this agreement any additional, alternative or varied terms by any means whatsoever (including, but not limited to, purchase order forms, delivery documents or other similar documents), then such additional, alternative or varied terms will be null, void and of no force or effect.

17.6. General Interpretation

In this document:

1. a singular word includes the plural and vice versa;
2. a word which suggests one gender includes the other gender;
3. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
4. a reference to a party to this document or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
5. a reference to a person includes a corporation, trust, partnership, unincorporated body, government, governmental agency local authority statutory body, or other entity whether or not it comprises a separate legal entity;
6. a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document and references to this document include any schedules or annexures;
7. a reference to a document or agreement (including a reference to this document) is to that document or agreement as amended, supplemented, varied or replaced;
8. a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
9. if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;
10. a reference to a year or a month means a calendar year or calendar month respectively;
11. the meaning of general words is not limited by specific examples introduced by “including,” “for example,” “such as” or similar expressions;
12. this document is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this document to protect itself;
13. headings, footnotes and contents are for convenience only and do not affect the interpretation of this document;
14. unless the Proposal expressly states otherwise, a reference to a monetary amount is a reference to the currency of Australia.