Terms and ConditionslZJePI1FK42021-08-23T12:04:27+10:00
Terms and Conditions
These Terms and Conditions along with any Service Order Form, Statement of Work, or other addenda, executed by both parties together with the Master Service Agreement form a contract (the “Agreement”).
Terms of Business, Formation of Contract and Warranties.
5.2 Product and/or Services and/or Deliverables.
5.4 Risk and Title in Product
5.5 Customer Obligations.
6.1 Charges, Fees or Price.
6.2 Billing Commencement
6.3 Additional Charges.
6.4 Invoicing and Payment
6.5 Calculation of Charges.
6.6 Revision of Charges.
6.8 Failure to Pay.
6.9 Other Rights Not Affected.
Liability and Dispute Resolution.
7.1 Death or bodily injury, IP infringement and Personal Information.
7.2 Limitation of liability for claims.
7.3 Exclusion of losses and damages.
7.4 Total Liability.
7.5 Time Limitation.
7.6 Proportionate Reduction in Liability.
7.7 Customer’s business and operations.
7.8 Dispute resolution.
8.1 Termination for breach.
8.2 Termination for insolvency.
8.3 Termination Charges.
8.4 Termination for Convenience.
8.5 Return of property.
8.7 Termination not to affect other Agreements.
8.8 Customer Rights on Termination.
8.9 No Cancellation of Maintenance.
Intellectual Property Rights.
9.1 Retention of rights.
9.2 Ownership of rights.
9.3 Third Party Software.
9.4 Pre-existing Materials.
9.8 Protection of Customer’s data:
In these terms and conditions unless the context otherwise requires, the following words and expressions shall have the following meanings:
“Agreement” means, collectively, the contract formed by a Service Order, Statement of Work or other addenda, executed by both parties, which incorporates the terms and conditions of this Master Services Agreement;
“Assumption or Assumptions” means any assumption or assumptions (by whatever name called) which Genisys has made in calculating the Charges and which is stated in the Service Order, Statement of Work or elsewhere in the Agreement;
“Business Day” means Monday through to Friday, between the Business Hours, excluding public holidays in Sydney, New South Wales or Melbourne Victoria;
“Business Hours” means 08:30am to 5:30pm AEST on a Business Day;
“Change” means any variation to all or part of the Service Order and/or Statement of Work;
“Charges” or “Fees” or “Price” means the amounts payable by the Customer for the Product, Services, Professional Services and/or Deliverables under the applicable Service Order and/or Statement of Work, with any other amounts which are payable by Customer to Genisys under the Agreement;
“Claims” means all claims, demands, suits, actions and other proceedings of any kind, whether arising under contract (including under any warranty or indemnity), in equity, in restitution, in negligence or any other tort, under strict liability, under statute, or otherwise at all;
“Commencement Date” means, in the case of this Master Services Agreement, the commencement date outlined in Schedule 1 – Executive Summary, and, in the case of a Service Order or Statement of Work, the commencement date outlined in that Service Order or Statement of Work;
“Confidential Information” means:
a) the terms of the Agreement, including information submitted or disclosed by either party during negotiations, discussions and meetings relating to the Agreement;
b) information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
c) all other information belonging or relating to a Disclosing Party, which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any related entity of that Disclosing Party;
d) Information shall not be considered to be Confidential Information if it:
e) is already or otherwise becomes publicly known through no wrongful act of the Receiving Party; or
f) is compelled to be disclosed by law.
“Customer” means the person, firm, company, Government body or other entity who purchases Products, Services, Professional Services and/or Deliverables from Genisys;
“Customer Data” means all Data generated, processed, transmitted or stored by the Customer
or an End User by using the Services and includes:
(a) any database in which such Data is contained;
(b) the work product resulting from the use or manipulation of such Data;
(c) Data entered into or generated, processed, transmitted or stored by any Customer or End User hardware or software; and
(d) any copies of the above;
“Customer Obligation” means any obligation of the Customer stated in the Service Order, Statement of Work or elsewhere in the Agreement;
“Data” means data and information;
“Deliverables” means all materials created by Genisys specifically for the Customer as specified in a Service Order or Statement of Work, including, without limitation, data, diagrams, reports and specifications;
“Effective Date” means the effective date of an Agreement, being the date by which both parties have executed all executable documents comprising the Agreement;
“End User” means any person (including a Related Body Corporate of the Customer) whom the Customer permits to use the Services and/or Products in accordance with this Master Agreement and any Agreement;
“Exclusion” means any item identified in the Service Order, Statement of Work or elsewhere in the Agreement as (i) not available from Genisys; or (ii) available from Genisys for an additional Charge;
“Fixed Term Services” means any Service specified in the Service Order or Statement of Work to be provided by Genisys to the Customer for the specified Term or Initial Term, including any Renewal Term;
“Genisys Property” means all property (including the Services) in which Genisys has an interest under this Agreement or a Security Interest for the purposes of the PPS Law;
“Genisys” or “Genisys Australia” means Genisys Group Pty Ltd (ACN: 096 660 534), an Australian corporation and member of the Genisys Group with registered office at Unit 4, 9 Fitzpatrick Street Revesby NSW 2212;
“GST” means any goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended, renamed or replaced from time to time.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Hardware” means any equipment specified in the Service Order or Statement of Work to be provided by Genisys to the Customer;
“Law” means principles of law or equity established by decisions of courts, statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law;
“Genisys Group” means Genisys and all related bodies corporate as defined in section 9 of the Corporations Act 2001;
“Maintenance” means maintenance services described in a quotation for Product or a Statement of Work which shall include (a) Manufacturer’s Maintenance Services and (b) that maintenance forming part of the Support Services;
“Manufacturer” means the manufacturer of the Product;
“Manufacturer’s Maintenance Services” means any maintenance services which, although ordered from Genisys, are purchased from and supplied by the Manufacturer in respect of Product;
“Manufacturer’s Terms” means the Manufacturer’s standard warranty, Software licensing and/or service terms applicable to the Product and/or Manufacturer’s Maintenance Services, as may be packaged with the Product, set out on the Manufacturer’s website, or otherwise provided by the Manufacturer;
“Master Services Agreement” or “MSA” means these terms and conditions and shall include, without limitation, the Schedules 1 to 4.
“Personal Information” means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either Party deals within connection with performing its obligations under the Agreement;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“PPS Law” means the PPSA and any amendment made at any time to any other Law as a consequence of the PPSA;
“Pre-existing Materials” means materials which existed before the commencement of the Services;
“Pre-paid Services“, means Fixed Term Services which are payable in advance for the full term of the Service;
“Premises” or “Site” means the premises to which the Product is to be delivered and/or at which Services are to be performed, as specified in the Service Order or Statement of Work;
“Privacy Laws” means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of personal information (including health information) which is applicable to a party in the performance of its obligations under this document, including without limitation any codes, principles or guidelines contained in or arising out of such legislation and includes the Privacy Act (including the National Privacy Principles or Australian Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the Parties and which relates to the protection of Personal Information as amended from time to time;
“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time;
“Product” means any Hardware and/or Software (including any associated Maintenance) that Genisys is to supply to the Customer in accordance with this Agreement.
“Product Terms” or “Service Description(s)” means additional terms and conditions incorporated in a Service Order which contain Service or Product specific obligations;
“Professional Services” means services to be undertaken by Genisys under a Service Order or Statement of Work;
“Quote” means a written statement (including without limitation any attachments) of offer for the provision of Products, Services, Professional Services and/or Deliverables between Genisys and the Customer;
“Recurring Services” means Services which are provided on an on-going basis;
“Renewal Term” means a fixed term extension of the Term set out in the MSA or the Service Order as the case may be.
“Security Interest” has the meaning given to that term in section 12 of the PPSA;
“Sensitive Information” means ‘Sensitive Information’ as defined in the Privacy Act;
“Service Level” means a measure of the standard or quality to which a service is performed, including:
a) the time taken to initiate or complete performance of the service;
b) the accuracy, quality and completeness of the results of performing a service;
c) the time taken for an end-user to process a transaction using any computer hardware or computer software which is the subject of the service; and
d) the availability, reliability or functionality of computer hardware or computer software resulting from the performance of the service.
“Service Level Agreement” or “SLA” means the document or documents contained in an MSA, Service Order or Statement of Work which define the Service Levels in accordance with which the Services must be performed, including the document set out in Schedule 4;
“Service Order” or “Order Form” means the document describing the Products, Services, Professional Services and/or Deliverables the Customer is purchasing, including any online order, process, API, or tool through which the Customer requests Products, Services, Professional Services and/or Deliverables and includes any Service Descriptions that are applicable;
“Services” means the information technology services, management consultancy services, and other services provided by Genisys to the Customer and includes any Support Services specified in the Service Order or Statement of Work provided to the Customer in accordance with the Agreement;
“Software” means any operating system or other software, including Third Party Software, installed on the Product or otherwise supplied by Genisys and/or specified in the Service Order or Statement of Work;
“Statement of Work” or “SOW” means a written statement or such other document as between Genisys and the Customer (including without limitation any attachments) for the provision of Products, Services, Professional Services and/or Deliverables;
“Support Services” means the maintenance and support services specified in the Service Order or Statement of Work;
“Term” means the minimum service period applicable to Services as specified in the MSA or the relevant Service Order or Statement of Work as the case may be and is defined as the period between the Commencement Date and the Termination Date.
“Termination Charges” or “Cancellation Charges” means:
a) the full Charges for all delivered Products, Services and/or Deliverables;
b) the full Charges for undelivered Product & Manufacturer’s Maintenance Service orders which cannot be cancelled with the Manufacturer;
c) the cancellation charges for undelivered Product & Manufacturer’s Maintenance Service orders which can be cancelled with the Manufacturer;
d) the full Charges, for the full term, of Fixed Term Services;
e) the Charges for Recurring Services equal to the monthly recurring Fee times the number of months remaining in the then current term of the Service Order for the Services that have been terminated;
f) any other termination or cancellation fees set out in the Service Order or the Agreement; and
g) all other costs, losses and expenses reasonably incurred by Genisys as a consequence of such termination including Unavoidable Costs.
“Termination Date” means the date being the date of expiry of the Term of the MSA, Service Order or Statement of Work as the case may be.
“Third Party Software” means Software that is not proprietary to Genisys and which is installed on the Product or otherwise supplied by Genisys;
“Transaction” means any transaction contemplated by or in connection with this Agreement;
“Unavoidable Costs” means.
a) any costs incurred by Genisys, in connection with the performance of its obligations under this Agreement or any agreement with any third party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to Genisys’ other operations or business activities;
b) the costs of any redeployment or termination of employment of Genisys’ personnel engaged for the purposes of providing the Services; and
c) the costs identified by Genisys for any capital purchases made in connection with the Services.
In this Agreement unless the context otherwise requires:
a) the singular includes the plural and vice versa;
b) the headings are used for convenience only and do not affect the interpretation of this Agreement;
c) other grammatical forms of defined words or expressions have corresponding meanings;
d) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
e) the word “month” means calendar month and the word “year” means 12 months;
f) the words “in writing” include any form of communication capable of being read by the recipient;
g) a reference to a thing includes a part of that thing;
h) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
i) wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”; and
j) money amounts are stated in Australian currency unless otherwise specified.
3.1 All Service Orders and/or Statements of Work that have not been signed by both parties, are valid for thirty (30) days from date of the Service Order and/or Statement of Work, unless otherwise stated in the Service Order and/or Statement of Work. All Service Orders and/or Statements of Works are subject to this Master Services Agreement.
3.2 Genisys may, but is not obliged to, incorporate or identify in the Service Order and/or Statement of Work, a statement containing details of the Products, Services, Professional Services and/or Deliverables and any applicable exclusions and assumptions.
3.3 Genisys may at any time before both parties have signed the Service Order and/or Statement of Work, withdraw and amend it to reflect any increase in the cost to Genisys of any Product, Services, Professional Services and/or Deliverables which form part of the Service Order and/or Statement of Work.
These Terms and Conditions shall apply to the exclusion of any standard terms or conditions of the Customer, whether appearing in an order or in any other document, or published on any media issued by the Customer and notwithstanding any statement to the contrary appearing in such standard terms or conditions.
In the event of any conflict between this Master Services Agreement, a Service Order and/or a Statement of Work, the conflict will be resolved in the following order of precedence:
a) the Service Order and/or Statement of Work, including any special conditions, provided however that no special condition in a Service Order and/or Statement of Work will be taken to override these Terms and Conditions, unless the provision being overridden is expressly and specifically identified;
b) a Service Description provided however that no special condition in a Service Description will be taken to override these Terms and Conditions, unless the provision being overridden is expressly and specifically identified;
c) any other documents that Genisys and the Customer agree in writing forms part of the Agreement provided however that no special condition in any other documents will be taken to override these Terms and Conditions, unless the provision being overridden is expressly and specifically identified;
5.1.1 This Master Services Agreement continues until terminated in accordance with this MSA.
5.1.2 An Agreement commences on the date that both parties sign and Genisys confirms acceptance in writing of the Service Order and/or Statement of Work;
5.1.3 Unless otherwise agreed in the Service Order and/or Statement of Work, the Term commences when Genisys delivers the Products and/or supplies the Services and/or the Deliverables to the Customer and commences billing in accordance with clause 6.2, and will continue for the Term stated in the Service Order and/or Statement of Work and until all Services specified in the Service Order and/or Statement of Work have been provided to the Customer for at least the Term unless earlier terminated in accordance with the Agreement.
5.1.4 If the Service Order and/or Statement of Work provides for a renewal term or renewal terms, then upon expiry of the Term, the Agreement will automatically continue for successive renewal terms identified in the Service Order (“Renewal Term”) unless terminated by either party notifying the other in writing not less than 90 days before expiry of the then current Term. Any Term of the Agreement, whether the Term or a Renewal Term, is referred to as the “Term”.
5.1.5 The Customer may request the supply of Products, Services, Professional Services and/or Deliverables to the Customer or to the Customer’s Related Body Corporate by executing an Agreement.
5.1.6 Each Agreement is separate and independent from other Agreements. For clarity, multiple Service Orders and/or Statements of Work may be executed, each constituting a separate Agreement.
5.2 Product and/or Services and/or Deliverables
a) Genisys will deliver and, where applicable, install or provide the Products and/or Services and/or Deliverables on the dates and in the manner specified in the Service Order and/or Statement of Work as applicable;
b) Genisys is not responsible for any failure to perform any of its obligations under this Agreement where such failure is caused or contributed to by the Customer or any third party.
a) Genisys warrants that it has full power and authority to enter into and perform its obligations under the Agreement and that it will comply with all laws and regulations which are applicable to Genisys in the performance of its obligations under the Agreement.
b) Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
c) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Customer by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement.
d) To the fullest extent permitted by law, the liability of Genisys for a breach of a non-excludable condition or warranty referred to in clause 5.3.1 (c) is limited, at Genisys’ option, to:
i. in the case of Product, any one or more of the following:
A) the replacement of the Product or the supply of equivalent Product;
B) the repair of the Product;
C) the payment of the cost of replacing the Product or of acquiring equivalent Product; or
D) the payment of the cost of having the Product repaired; or
ii) in the case of Services (subject to clause 5.3.3 below):
A) the supplying of the Services again; or
B) The payment of the cost of having the Services supplied again.
5.3.2 Product Warranty
a) Genisys is not the manufacturer of the Product and does not provide any warranty in relation to the Product. All Product is supplied subject to the Manufacturer’s Terms. Wherever possible Genisys will pass to the Customer any warranty provision provided by the Manufacturer of the Product.
b) Any license for third party Software will be between the Customer and the Manufacturer and the Customer will comply with the Manufacturer’s terms.
c) For the removal of doubt, Manufacturer’s Maintenance Services are provided subject to the Manufacturer’s Terms. Genisys gives no warranties in relation to Manufacturer’s Maintenance Services.
5.3.3 Service Warranty
a) Warranty Period: The warranties in this clause apply for the period starting at the time the Services specified in the Statement of Work begin to be supplied and ending 30 days following completion of the Service, or its acceptance, if acceptance is specified in the Statement of Work (“Warranty Period”). Genisys warrants for the Warranty Period that:
i) it will provide Services which comply in all material respects with the Statement of Work and the Agreement, with due care and skill and in a professional manner and in accordance with general industry standards and practices;
ii) it will obtain and maintain all licenses, permits and other consents required for its performance of the Services; and
iii) it will comply with all laws and regulations which are applicable to Genisys in the performance of the Services.
a) Rectification of Service defects: Genisys will rectify at no charge, any failure to comply with a warranty in this clause (‘Warranty Failure”) which is notified by the Customer within the Warranty Period. If the warranty notification:
i) is not due to a Warranty Failure; or
ii) is made outside the Warranty Period; or
iii) is a Service Exclusion or a Customer Obligation;
then Genisys will be entitled to Charge the Customer its then standard commercial charges for responding to the warranty notification.
5.4 Risk and Title in Product
a) Risk: Risk in the Product shall pass to the Customer when the Product has been delivered to the Premises.
b) Title: Notwithstanding that the risk in the Product may have passed to the Customer as set out in Clause 5.4(a) Ownership of the Product shall not pass to the Customer until Genisys has received payment in full for the Product, and until such time payment has been received the Customer shall hold the Product on a fiduciary basis as Genisys’ bailee and permit Genisys to enter any premises on which the Product is stored; to inspect, and where Customer is in material breach or this agreement is terminated for insolvency, to recover and remove the Product.
5.5 Customer Obligations
The Customer undertakes to:
a) do all things reasonably necessary to enable Genisys to perform its obligations under this Agreement including performing any works, providing any Product or connecting any Services as reasonably required by Genisys from time to time;
b) provide Genisys with all reasonable assistance and co-operation in the performance of this Agreement required by Genisys including providing Genisys with;
i) access to the Site as and when reasonably required by Genisys;
ii) access to relevant Customer individuals, officers, employees, agents, consultants, subcontractors, specialists and other personnel; and
iii) all information and documentation as reasonably requested by, or as otherwise necessary for, Genisys,
for the purposes of performing its obligations under this Agreement;
c) by direction of Genisys to appoint and maintain sufficient numbers of appropriately qualified personnel immediately aforementioned to liaise with Genisys in relation to the performance of this Agreement; and
d) negotiate in good faith and not unreasonably delay performance of its obligations, including consents, under this Agreement.
6.1 Genisys shall charge and the Customer shall pay the Charges set out in the Service Order and/or Statement of Work in AUD$, without deduction, set off or counterclaim.
6.2 Billing Commencement
Genisys will commence billing when the Services and/or Deliverables are installed and/or delivered on the Genisys network, internal testing is successful and the Service is functioning properly to the Genisys point of demarcation, unless Genisys cannot complete installation due to customer delay or inaction, in which case billing will commence and accrued charges will appear on the first invoice. Where applicable, Genisys may commence billing for individual Services and/or Deliverables as they are installed and/or delivered.
6.3 Additional Charges
a) Unless specifically excluded in the Service Order and/or Statement of Work, Genisys may make an additional Charge at its then current standard commercial charges for:
i) all Product and Service related taxes, duties and imposts, and all Product related delivery costs and installation charges;
ii) any increase in costs to Genisys resulting from Force Majeure, changes in laws, changes in exchange rates, changes in the prices and fees charged by its suppliers and/or changes, errors or omissions in Customer’s instructions, data or requirements;
iii) any Assumptions proving to be incorrect;
iv) any delays caused by Customer, or Customer’s failure to fulfil any Customer Obligations;
v) Service related travel and accommodation expenses specified in a Service Order or Statement of Work; and
vi) any other amounts which Genisys is entitled to receive from the Customer under the Agreement.
b) Where an expenses policy is included or referred to in the Service Order or Statement of Work, then expenses will be charged by Genisys as set out in that policy.
c) Customer will pay a cancellation fee to Genisys in the event that Customer cancels or rearranges the work schedule without giving at least three (3) Business Days written notice prior to the day on which work was due to commence. The cancellation fee shall be 100% of the Charges of the days cancelled, plus any expenses incurred by Genisys.
6.4 Invoicing and Payment
Unless otherwise stated in a Service Order and/or Statement of Work or in the Agreement: (a) all invoices must be paid by the Customer within 30 days after the date Genisys’ serves on the Customer a valid tax invoice for the same; and (b) Genisys will be entitled to invoice the Customer as follows:
i) Charges for Product will be invoiced on delivery of the Product to the Premises;
ii) Charges for other Pre-paid Services, including Manufacturer Maintenance Service renewals, will be invoiced, in advance, on the commencement date of the Service, or the commencement date of the Service renewal, as the case may be;
iii) Charges for all other Services, Deliverables and any other amounts due under the Agreement will be invoiced as specified in a Service Order and/or Statement of Work and in accordance with clause 6.2; and
iv) All Manufacturer’s Maintenance Services are payable in advance, for the full term of the Manufacturers’ Maintenance Services, within thirty (30) days after the date of Genisys’ invoice.
6.5 Calculation of Charges
If the means of calculating the Charges is not specifically stated in the Service Order and/or Statement of Work, then the Charges will be calculated using Genisys’ then current standard commercial charges applicable or charged from time to time.
6.6 Revision of Charges
Except where the Service Order and/or Statement of Work specifies that a Charge is fixed, the Charges may be revised by Genisys from time to time, consistent with Genisys’ then current standard commercial charges. Charges for Prepaid Services will not be revised during the pre-paid term, but will be revised to Genisys’ then current standard commercial charges on renewal of the pre-paid term applicable or charged from time to time.
The Customer’s obligation to pay the Charges is not dependent on the Products, Services, and/or Deliverables meeting any acceptance criteria, unless stated in the Service Order.
6.8 Failure to Pay
If any amount payable to Genisys under an Agreement remains unpaid by the Customer for more than 30 days after the Customer receives written notice from Genisys that the amount is overdue, Genisys may:
a) suspend its obligations to provide Products, Services and/or Deliverables and recover any Product storage costs incurred;
b) require payment in advance of delivery of Products, Services and/or Deliverables;
c) charge interest on overdue amounts at the National Australia Bank’s Published Base Rate plus four (4%) percent per annum;
d) recover all costs and expenses (including any legal costs and expenses on a full indemnity basis) incurred or sustained by Genisys in recovering sums due;
e) terminate the Agreement.
6.9 Other Rights Not Affected
The exercise by Genisys of any of its rights under clause 6.8 does not affect:
a) the Customer’s obligation to pay any money due and payable; or
b) any other rights or remedies Genisys may have in relation to any failure by the Customer to pay an amount due, under this Agreement or any other Agreement between Genisys and the Customer.
a) In this clause 6.10:
i) the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act); and
ii) Supplier means any party treated by the GST Act as making a Supply under this Agreement.
b) Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.
c) If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
d) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.
i) If this Agreement requires a party (the “First Party”) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the “Other Party”), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of: the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
ii) if the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount.
7.1 Death or bodily injury, IP infringement and Personal Information
Neither party excludes or limits liability to the other party for (i) death or bodily injury due to its negligence; or (ii) infringement of Intellectual Property Rights or moral rights; or (iii) any other liability which may not be excluded by law.
7.2 Limitation of liability for claims
The total liability of Genisys for all Claims, loss and damage arising out of, or in connection with the Agreement including without limitation the Service Order, Statement of Work, the Products, the Services or the Deliverables will not exceed the following:
a) where this Mater Services Agreement including the Agreement, Service Order and/or Statement of Work prescribes specific Service Level terms and for Genisys to provide rebates for failure to meet such Service Levels the rebates will be the Customer’s sole and exclusive remedy and Genisys’ sole and exclusive liability with respect to Genisys’ failure to meet the Service Levels and such failure will not be deemed to be a breach of this Agreement.
7.3 Exclusion of losses and damages
Subject to clause 7.1, Genisys will not be liable for any loss which does not arise naturally, according to the usual course of things, from the default, act, omission or event which creates (or would otherwise create) the liability whether or not such loss may reasonably be supposed to have been in the contemplation of the parties, at the time of entering this Agreement, as the probable result of the relevant breach, and such loss shall include:
a) any loss of profits, revenues, business, goodwill, opportunity, anticipated savings, or Data; or
b) any exemplary, punitive or special damages; or
c) any indirect, consequential or economic losses, (including down time costs and failure or loss of or inability to use Product or software or loss of Customer Data); or
d) any loss or damage specifically excluded in the Service Order,
howsoever arising (in negligence or otherwise), in relation to any Claim, or otherwise in connection with the Products, the Services, the Deliverables, Service Order, Statement of Work or the Agreement, or any act or omission by Genisys irrespective of whether such loss and/or damage was foreseeable.
7.4 Total Liability
If for any reason the exclusion of liability in clause 7.3 above is void or unenforceable, then Genisys’ total liability for all loss or damage under the Agreement shall be as provided in clause 7.2.
7.5 Time Limitation
No Claim may be brought under the Agreement more than two years after the circumstances giving rise to the Claim have come, or with reasonable diligence should have come, to the notice of the party bringing the Claim.
7.6 Proportionate Reduction in Liability
The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage has been caused by the other party’s failure to comply with its obligations and responsibilities under this Master Services Agreement, Agreement, Service Order or a Statement of Work and/or to the extent that the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party for breach of contract or for negligence.
7.7 Customer’s business and operations
The parties agree that Genisys will not be exposed to the business and operational risks associated with Customer’s business and operations. Customer therefore agrees that (i) any use of the Products, Services and/or Deliverables in the conduct of the Customer’s business and operations will be entirely at its own risk, and (ii) it will indemnify and keep indemnified, defend and hold harmless Genisys, from and against any third party claim, suit, action or proceeding arising out of the use or attempted use by the Customer of the Products, Services and/or Deliverables in the conduct of the Customer’s business and operations and such indemnity shall extend to include any failure by the Customer to obtain consent necessary for Genisys to provide the Services, except for a third party claim for which Genisys is liable under clause 10 (Intellectual Property Rights Indemnity).
Genisys does not warrant uninterrupted or error free operation of any Products, Services or Deliverables.
7.8 Dispute resolution
7.8.1 Save where expressly stipulated to the contrary in the Agreement, all and any disputes or differences arising out of or in connection with the Agreement (including any question as to its validity or termination) (the ‘Dispute’) shall be determined in accordance with the provisions of this clause 7.8 and, for the removal of doubt, a party may not commence any legal proceedings relating to the Dispute unless it has complied with the provisions of this clause except to seek urgent equitable or interlocutory relief. The Dispute procedures in this clause must be completed within 30 Business Days from the giving of notice referred to in this clause or such other period agreed in writing between the parties (“the Resolution Period”). If the Dispute is not determined by the Resolution Period and after expiry of this time a party may commence legal proceedings relating to the dispute.
7.8.2 The Dispute Procedures:
a) Either party may serve a notice of dispute upon the other party. The Dispute will be escalated to each party’s Chief Executive (or a delegate specifically authorised by the Chief Executive) for determination by negotiation.
b) If the Dispute is not determined by negotiation within 14 days (or such longer period as agreed in writing by the parties), then Either party must refer the Dispute to the President of Law Society of New South Wales to appoint an expert (“the Expert”) with at least 10 years experience in Contracts to determine the Dispute (“the Expert Determination”). The parties shall be entitled to make submissions to the Expert. The parties will share equally the cost of the Expert Determination pending the Expert giving his/her Expert Determination. The Experts Expert Determination shall be final and binding including the cost of the Expert Determination. The Expert may include in the Expert Determination who shall be liable to pay the cost of the Expert Determination.
c) The Expert must give the Expert Determination within the Resolution Period.
7.8.3 In the event of a dispute, Genisys will only be obliged to continue to provide the Products, Services and/or Deliverables if the Customer pays and continues to pay the amounts due to Genisys without deduction.
Either party may terminate the Agreement forthwith by notice in writing to the other party where the other party has committed a material breach and (i) such breach is not capable of remedy, or (ii) such breach is capable of remedy within 20 days and the other party has failed to remedy such breach within twenty (20) days of receiving notice specifying the breach and requiring its remedy; or (iii) such breach is not capable of remedy within 20 days and the other party has failed to commence and diligently progress the remedy of such breach within twenty (20) days of receiving notice specifying the breach and requiring its remedy.
8.2 Termination for insolvency
Either party may terminate the Agreement forthwith by notice in writing to the other party if the other party is unable to pay its debts as they fall due, or is the subject of any action, application or proceeding for the appointment of (i) a receiver, or receiver and manager, of its property; (ii) an administrator, including an administrator of a deed of company arrangement; (iii) a liquidator; or (iv) a trustee or similar officer, in respect of that party’s affairs.
8.3 Termination Charges
Without prejudice to any rights or remedies arising as a result of such termination, if Genisys terminates the Agreement under clause 8.1 or 8.2 or if the Customer terminates the Agreement under clause 14.3 (Force Majeure) then Customer will be liable for payment of the Termination Charges.
8.4 Termination for Convenience
Unless otherwise stated in the Agreement, Customer may terminate all or part of any part of any Service Order for convenience at any time by giving Genisys at least 90 days advance written notice; subject to payment by the Customer to Genisys of the Termination Charges. The Customer acknowledges that termination or cancellation of Fixed Term Service will require payment of the full Charges for the full term. Charges for Pre-paid Services are not refundable.
8.5 Return of property
On the termination of the Agreement each party shall return to the other party any Product, documents or other materials (including Confidential Information) belonging to the other party which it has no legal right to retain. To the extent that Confidential Information of the other party has been incorporated into a party’s own material and cannot be separated and returned, then that party must destroy that Confidential Information and certify destruction to the other party.
Except for Clauses which are expressed to, or which by their nature, survive the termination or expiration of the Agreement, including, without limitation, clauses 5.4, 6 to 13 inclusive and clauses 15 to 19 inclusive, the termination of the Agreement shall relieve both parties from further performance of their respective obligations hereunder but shall not affect the accrued rights of either party in respect of the Agreement or any breach.
8.7 Termination not to affect other Agreements
Termination of the Agreement, will not affect any other Agreements which are in effect between Genisys and the Customer at the time of the termination and such other Agreements will continue in accordance with their respective terms.
8.8 Customer Rights on Termination
Subject to the Customer complying with its obligations in clauses 8.3 and 8.4, (a) the Customer shall be entitled to retain and use that part of the Services provided by Genisys and paid for in full by the Customer on or before the date of termination; and (b) the Customer must immediately cease using and return to Genisys any part of the Services that is not paid for by the Customer, at the Customer’s cost.
8.9 No Cancellation of Maintenance
Notwithstanding this clause 8, the supply of Manufacturer’s Maintenance Services may not be cancelled or terminated by the Customer.
Each party retains all Intellectual Property Rights in its own Pre-existing Materials, software, development tools, know how, methodologies, processes, technologies and algorithms used or disclosed pursuant to the Agreement. The parties acknowledge that the Manufacturer retains all Intellectual Property Rights in the Product (including Third Party Software).
9.2 Ownership of rights
Except where stated otherwise in the Agreement, all Intellectual Property Rights in the Deliverables and the Services shall be owned by Genisys. To the extent that any Intellectual Property Rights in the Deliverables and the Services do not automatically vest in Genisys, the Customer immediately assigns to Genisys absolutely and beneficially the whole of its rights, title and interest in and to those Intellectual Property Rights, whether presently existing or which arise at a date after the date of this Master Services Agreement, with effect from the date the Agreement is signed by the Customer. Genisys hereby licenses such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable internal use of the Deliverables and the Services as described in the Agreement. Such license will terminate on expiry or termination of the Agreement, except where the Service Order or Statement of Work provides otherwise.
9.3 Third Party Software:
a) The Customer acknowledges that the licenses for all Third Party Software will be between the Customer and the Manufacturer and the Customer must comply with the Manufacturer’s Terms.
b) Genisys may provide the Customer with Software licensed by a third party (“Third Party Material”) the Customer acknowledges that its use of the Third Party Material will be subject to the third party licensor’s license agreement.
9.4 Pre-existing Materials
To the extent that the Customer’s license to use the Deliverables and the Services in clause 9.2 is dependent upon use of Pre-existing Materials, then the license in clause 9.2 will include such Pre-existing Materials, provided that Genisys is the owner of the same. The Customer’s use of rights in Pre-existing Materials (other than Third Party Software) owned by third parties is conditional on Genisys obtaining a written end-user license (or sub-license) of such rights from the relevant licensor or licensors to such extent as is necessary to enable the Customer to make reasonable internal use of the Deliverables and the Services as described in the Service Order. Such license will terminate on expiry or termination of the Agreement, except where the Service Order or Statement of Work provides otherwise.
Customer agrees not to directly or indirectly infringe the Intellectual Property Rights of the Manufacturer, or Genisys, or its suppliers and to ensure that such rights are not infringed by its employees or contractors.
Any Confidential Information which a party (‘Disclosing Party’) supplies or discloses to, or which is otherwise obtained by, the other party (‘Receiving Party’) in connection with the Agreement shall be treated as confidential by the Receiving Party, using the same standard of care that it uses to protect its own Confidential Information of like importance, but in any event not less than reasonable care.
The Confidential Information (i) shall not be disclosed by the Receiving Party to any third party without the Disclosing Party’s prior written consent; and (ii) shall not be used by the Receiving Party and its employees, agents and contractors except as necessary to perform its obligations and exercise its rights under the Agreement. The Receiving Party shall have an appropriate agreement with each of its employees, agents and contractors having access to Confidential Information, with terms no less restrictive than the terms of this clause 9.6.
In the Agreement, “Confidential Information” means:
a) the terms of the Agreement, including information submitted or disclosed by either party during negotiations, discussions and meetings relating to the Agreement;
b) information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
c) all other information belonging or relating to a Disclosing Party, which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any related entity of that Disclosing Party;
d) Information shall not be considered to be Confidential Information if it (1) is already or otherwise becomes publicly known through no wrongful act of the Receiving Party; or (2) is compelled to be disclosed by law.
Each party must take such steps as are reasonable in the circumstances to implement practices, procedures and systems that will ensure that it complies with Australian Privacy laws applicable from time to time in relation to any personal information disclosed by either party to the other. In particular, without limiting the foregoing, the Receiving Party must ‑
a) not collect, disclose, store, transfer or handle the information except in accordance with Australian Privacy laws;
b) take all reasonable steps to ensure that the information is protected from misuse,
interference, or loss, and from unauthorised access, modification or disclosure;
c) take all reasonable steps to destroy or permanently de-identify information that is no longer needed for the purposes of the Agreement;
d) co-operate with any reasonable request or direction the Disclosing Party makes which relates to the protection of the information or the exercise of the functions of the Privacy Commissioner under Australian Privacy laws;
e) ensure that access to the information is limited to those of the Recipient’s personnel who are required to access that information for the purposes of the Agreement; and
f) comply with any reasonable direction of the Disclosing Party in relation to a complaint concerning privacy received by either party which shall include any mandatory reporting requirements imposed on the parties by law and both parties shall take all reasonable steps and do all reasonable things to ensure such mandatory reporting requirements are met.
9.8 Protection of Customer’s data:
a) Customer’s data will remain at all times Customer’s property. Genisys is authorised to access and use Customer’s data solely for the provision of the Services.
b) To the extent permitted by law, Genisys will observe any data safeguards and storage requirements detailed in the Statement of Work. Customer acknowledges that the data safeguards detailed in the Statement of Work provide adequate protection for its business and that any additional or enhanced safeguards must be processed as a Variation in accordance with clause 18.2 except that this variation will be deemed consented to by the Customer save that each party shall independently comply with any mandatory reporting requirements imposed on each party by law, but only to that extent, and each party shall take reasonable steps and do all reasonable things to ensure such mandatory reporting requirements and notifications are met as required by law.
c) On termination of the Agreement for any reason, or when Customer’s Data is no longer required, and subject to payment in full of all Charges then due, Genisys will destroy Customer’s Data or return Customer’s Data to Customer in accordance with any transition plan agreed between the parties or otherwise specified in a Statement of Work.
d) Genisys may rely on the provisions of Clause 7 in respect of any claimed liability.
Each party agrees to indemnify the other party from and against any third party claim, suit, action or proceeding (collectively called “Action”) brought against the other party to the extent that such Action is based on a claim that any product, material, or service provided by the indemnifying party under the Agreement (other than Product and Third Party Software) infringes the third party’s Intellectual Property Rights (an “Infringing Item”), provided that:
a) The indemnified party fully co-operates with the indemnifying party in defending or settling the Action (and if the indemnified party is Genisys then it will cooperate provided it is at no cost or expense), does not at any time admit liability and makes its employees available to give such statements, advice, information and evidence as the indemnifying party may reasonably request;
b) The indemnifying party is notified promptly in writing of any Action by the indemnified party and is given the sole control of and authority for the conduct of any Action and all negotiations for its settlement, compromise or resolution.
Genisys does not provide whatsoever any indemnity in respect of infringement of Intellectual Property Rights by Product (including Third Party Software). Genisys shall pass to the Customer so far as it is permitted by the Manufacturer to do so, any warranty provision applicable to the Product which is provided by the Manufacturer of the Product, but otherwise excludes liability for infringement of Intellectual Property Rights by Product.
Neither party shall have any liability to indemnify the other against any Action to the extent that such Action is caused or contributed to by:
a) any use by or on behalf of the indemnified party, of the Infringing Item in combination with products, materials, or services not supplied or approved by the indemnifying party in writing ; or
b) Any modification carried out by or on behalf of the indemnified party to the Infringing Item without the written approval of the indemnifying party; or
c) the indemnified party’s unreasonable refusal to use modified products, materials, or services provided pursuant to Clause 10.4; or
d) any infringement or alleged infringement of any Intellectual Property Right arising only by reason of the indemnifying party’s compliance with the express written instructions of the indemnified party.
In the event of an Action, the indemnifying party may at its own expense:
a) Procure the right for the indemnified party to continue to use the Infringing Item; or
b) Make such alterations modifications or adjustments to the Infringing Item that it becomes non-infringing without materially reducing performance or function; or
c) Replace the Infringing Item with non-infringing substitutes which are substantially their equal in performance and function; or
d) If none of the above is practicable refund the price of the Infringing Item.
11.1 Customer agrees that Genisys may use the name of the Customer and details of Product, Services and/or Deliverables supplied by Genisys to the Customer for marketing purposes including: using the Customer’s name on lists of Genisys’ customers; announcing new Orders placed by or contracts awarded by the Customer and the preparation and publication of case studies both on Genisys’ web site and in printed format.
11.2 Save in respect of trademarks owned by the Customer or any third parties, Intellectual Property Rights in any documents, pictures, charts or other visual or audible material (whether in physical or electronic form) created by Genisys for marketing purposes will vest in Genisys.
11.3 Customer may withdraw its consent to the use of its name by Genisys for marketing purposes by sending written notice to Genisys. Such withdrawal of consent will not apply to material published by Genisys before the notice of withdrawal of consent is received.
11.4 A party (‘Disclosing Party”) will not make or authorise any public announcement, advertisement or disclosure concerning the other party which the Disclosing Party knows, or ought reasonably to be expected to know, is detrimental to the other party or any related entity of the other party. This clause will not apply to information which is compelled to be disclosed by law.
a) Where individuals as personnel of Genisys are named in the Agreement, Genisys will use reasonable commercial endeavours to ensure that those personnel are of good character, properly qualified and made available to perform the Services.
b) Genisys may replace any personnel who are temporarily or permanently unable to perform the Services due to including without limitation ill health, holidays, termination of employment or leave of absence.
c) Genisys will consult with the Customer and if appropriate replace an employee or contractor if the Customer determines on reasonable grounds that the employee or contractor is a security risk or is not acting in a professional manner.
d) The Genisys personnel performing the Services will be and remain either employees or contractors of Genisys and Customer will not be liable for salary, health, accident or workers’ compensation benefits of such personnel, or for deduction of any personal taxes or superannuation contributions in respect of such personnel.
Each party will not, without the prior written consent of the other party, at any time during the Term and for twelve months thereafter (i) solicit or encourage any employee of the other party who is or was directly involved in performing the Agreement, to leave the employ of the other party; or (ii) solicit or encourage any consultant or other contractor under contract with the other party who is or was directly involved in performing the Agreement, to cease work for the other party. In the event that a party breaches this clause, it will pay to the other party as liquidated damages an amount equal to the last 12 months remuneration paid by the other party to that employee, consultant, contractor or subcontractor.
13.1 Any notice given in connection with the Agreement must be in writing and must be delivered by hand at or sent by facsimile or pre-paid registered or recorded delivery post addressed to a party at the party’s registered office or principal place of business for the time being or at such other address as may be notified for the purpose of the service of notices. A notice is deemed to have been given on the date on which it is delivered by hand, or in the case of a notice being sent by facsimile is deemed to have been given at the time of dispatch and in the case of a notice being sent by post, it is deemed to have been given two Business days after the date of posting provided that in each case a notice received outside of normal business hours or on a day which is not a Business day shall be deemed to have been received at the start of normal business hours on the next Business day. A notice (other than a notice under clause 8 (Termination)) may also be given by email, provided that receipt is acknowledged by the recipient.
14.1 Neither party will be liable for any act, omission, or failure to fulfil its obligations under the Agreement if such act, omission or failure arises from any cause reasonably beyond its control including (without limitation) acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action after the date of the Agreement, acts or omissions of the other party, acts or omissions of a Manufacturer or supplier of Product, acts or omissions of a Carrier, or fire, communication line failures, power failures, earthquakes or other disasters (each such cause is called “Force Majeure”).
14.2 The party unable to fulfil its obligations due to Force Majeure will immediately:
a) Notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure; and
b) Use all reasonable endeavours to avoid or remove the cause and perform its obligations.
14.3 Where a Force Majeure event continues for more than 40 consecutive days, either party may at its election immediately terminate the Agreement or the relevant Statement of Work by written notice to the other. If the Customer elects to terminate the Agreement under this clause then it must pay the Termination Fees. If Genisys elects to terminate the Agreement under this clause then it will entitled to receive any amounts then due but will not be entitled to any other Termination Fees.
14.4 In no event will a Force Majeure affect the one party’s right to pay the other under this Agreement.
14.5 If an affected Party fails to perform obligations because of a claimed Force Majeure event, any other Party may (but is not obliged to) make alternative arrangements for the performance of the obligation or obligations, whether by another person or otherwise for so long as the Force Majeure event continues and
i) must notify the affected Party of the alternative arrangements; and
ii) is not liable in any way to the affected Party in respect of the alternative arrangements for so long as the Force Majeure event continues.
15.1 If the direct cost to Genisys of the performance of the Agreement shall be increased or reduced by reason of the making after the commencement of the Agreement of any relevant law or any relevant order, regulation or by law having the force of law that shall be applicable to the Agreement (other than any tax upon income), the amount of such increase or reduction shall be notified to Customer and shall take effect upon proof by Genisys of the amount of any such increase or reduction, which increase or reduction shall be added to or deducted from the Charges stated in clause 6.
16.1 Nothing herein shall be so construed as to prevent Genisys from using data processing techniques, ideas, know-how and the like gained during the performance of the Services in the furtherance of its normal business, to the extent that this does not result in a disclosure of confidential information or infringement of any valid Intellectual Property Rights of Customer.
i) this Agreement contains, or any of the Transactions create, a Security Interest for the purposes of the PPS Law; or
ii) the PPS Law does or could affect Genisys’ rights or obligations under or in connection with this Agreement, (each a “PPSA Event”), Genisys may, at its discretion, do any of the following:
A) register or give any notification in connection with any relevant Security Interest and exercise rights in connection with the Security Interest; and
B) give notice to the Customer requiring it to do anything at its expense that Genisys requires for the purposes of the relevant PPSA Event including, but not limited to, amending this Agreement, executing any new document or agreement, obtaining consents and supplying information.
b) The Customer must comply with any notice received pursuant to clause 17(a) within the time stipulated in the notice.
i) any action referred to in clause 17(a) is not taken to Genisys’ reasonable satisfaction; or
ii) despite such action Genisys determines on reasonable grounds that its rights or obligations under or in connection with the Transactions or this Agreement have been or will be materially adversely affected, then Genisys may give written notice to the Customer terminating all or any of this Agreement or any other document in connection with the Transactions and requiring:
A) full repayment of all outstanding monies; and
B) the return of all Genisys Property within the control of the Customer, within 30 days after the date of notification.
d) The Customer irrevocably and unconditionally waives its right to receive from Genisys any notice under the PPS Law (including notice of a Verification Statement) unless required by the PPS Law and if the notice cannot be excluded.
e) The Customer must not register a Security Interest against Genisys without its prior written consent.
f) The Customer must notify Genisys immediately of any change in its name, address, and any other information provided to Genisys to enable Genisys to register a financing change statement under the PPS Law if required.
g) The parties agree that the subject matter referred to in section 275(1) of the PPS Law is confidential and each party must not disclose any such information to a third party.
This Master Agreement and each Agreement formed under it constitutes the entire agreement and understanding between the parties with respect to its subject matter and supersedes any prior negotiations, agreement, understanding or arrangement between the parties whether oral or in writing (including, but not limited to, any terms and conditions set out in any purchase order or other documentation issued by the Customer). For the avoidance of doubt, any terms issued by the Customer (including the pre-printed terms and conditions of Customer’s purchase order, if any) which conflict with the terms of this Master Agreement, a Service Order, Statement of Work or Service Description, are null and void and are expressly excluded.
Neither this Master Agreement nor an Agreement may be varied, or added to, unless by written agreement signed by authorised representatives of both parties.
A party cannot assign any or all of its rights under this Master Services Agreement or an Agreement without the prior written consent of the other party, which will not be unreasonably withheld; provided that Genisys may at any time assign all or any of its rights or obligations under this Master Services Agreement or an Agreement to another company in the Genisys Group.
No waiver of any breach, or failure to enforce any provision, of this Master Agreement or an Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Master Agreement or the relevant Agreement, as applicable.
If any terms and conditions of this Master Agreement or an Agreement are invalid or unenforceable, the remaining terms and conditions of this Master Agreement or the Agreement (as applicable) remain in full force and effect.
18.6 Third Parties
A person who is not a party to this Master Services Agreement or an Agreement has no right to enforce any term of the Agreement. Genisys has no duty of care to any customer, supplier, contractor, or related body corporate or associated entity (as defined in section 9 of the Corporations Act 2001) of the Customer.
Genisys and the Customer acknowledge and agree that this Master Services Agreement or an Agreement shall not constitute, create or give effect to a joint venture, pooling arrangement, principal/agency relationship, partnership or formal business organisation of any kind and neither Genisys nor the Customer shall have the right to bind the other without the other’s express prior written consent.
18.8 Set off
Genisys may retain or set off any amount owed to it or to any other company in the Genisys Group by the Customer against any amount due to the Customer under this Master Services Agreement and any Agreement.
Where agreement, approval, acceptance, consent or similar action by either party is required or permitted by any provision of this Master Services Agreement and each Agreement, such action shall not be unreasonably delayed or withheld.
19.1 This Master Services Agreement and each Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales.
19.2 Customer and Genisys hereby irrevocably submit to the jurisdiction of the Courts of the State of New South Wales. The submission to such jurisdiction shall not (and shall not be construed so as to) limit the right of Genisys to take proceedings against Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
20.1 This Master Agreement and each Agreement may be executed in any number of counterparts by the parties, each of when executed will be deemed to be an original and all of which taken together will constitute one and the same instrument.
21.1 Each representation and warranty under this Master Services Agreement and each Agreement shall survive the execution and delivery of this Agreement and the performance of all obligations under this Agreement and shall not merge on completion or termination of this Agreement.
21.2 Each indemnity under this Master Services Agreement and each Agreement is a continuing indemnity and shall constitute a separate and independent obligation of the party giving the indemnity from its other obligations under this Master Services Agreement and each Agreement and shall survive the termination of this Master Services Agreement and each Agreement and shall survive completion or termination of this Master Services Agreement and each Agreement.
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