This Agreement terms and conditions apply to the provision of services by Flexbox Digital ABN 97 628 299 025 and you as the user and customer.
1. Definitions and interpretation
1.1 Definitions In the Agreement:
Additional Fees takes its meaning from clause 5.3(b).
Additional Obligations means the obligations on the Client set out in the Statement of Work section entitled “Additional Client Obligations”.
Agreement means this Master Services Agreement.
Assumptions mean the assumptions described in the Statement of Work section entitled “Assumptions”.
Bug means any syntax error, compiler error, runtime error, or other bug or defect arising due to a Deliverable malfunctioning. For the avoidance of doubt, a Variation will not constitute a Bug. Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Australia.
Claim means any claim notice, demand, investigation, action, proceeding, litigation, or judgment however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a party to a Statement of Work or third party.
Client Material means any material including documents, information, images, data or Intellectual Property provided by the Client to Flexbox Digital in connection with a Statement of Work.
Confidential Information means information, which is by its nature confidential, including but not limited to:
(a) confidential information relating to a party or a party’s customers;
(b) information relating to the personnel, policies, practices, clientele or business strategies of a party; and
(c) information relating to the terms of this Agreement or a Statement of Work, but does not include:
(d) information already known to the receiving party at the time of disclosure by the other party; or
(e) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under a Statement of Work.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Deliverables means any output produced by Flexbox Digital as anticipated during the provision of the Services.
Development Services means the provisioning of custom Software development services. Fees means any money payable by the Client to Flexbox Digital for any Services, as set out in the applicable Statement of Work, along with any Additional Fees.
Flexbox Digital IP means any Intellectual Property which are independently created by Flexbox Digital and which:
(f) are in existence before the date of this Agreement; or
(g) come into existence after the commencement of this Agreement but are not created exclusively for the Client in connection with a Statement of Work.
Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, hacking, industrial action or labour disturbance, currency restriction, embargo, pandemic, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Implementation Services means the provisioning of installation and configuration of third party Software (including Zoho) as set out in the Services of a Statement of Work.
In Scope Work means the services described in the Statement of Work section entitled “InScope”.
Indemnified Officers means, in relation to a party, its directors, employees, contractors, agents and representatives.
Insolvency Event means in respect of a party (the Insolvent), the appointment of an administrator, a receiver or receiver and manager in respect of the Insolvent, an application to a court or an order for the winding up of the Insolvent, or where anything analogous or having a substantially similar effect to any of the preceding events occurs.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all Moral Rights) in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.
Maintenance Services means the provision of any maintenance, support or services of an ongoing or periodical nature, which may include:
(a) maintaining and updating content (online or offline);
(b) attending to minor alterations to Websites or Software; and
(c) other technical support services and Software maintenance services.
Moral Rights means moral rights under the Copyright Act 1968 (Cth), or any similar rights existing under foreign laws.
New IP means any Intellectual Property generated under a Statement of Work but excluding the Client Materials and Flexbox Digital IP.
Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Out of Scope Work means any services which are not In Scope Work and specifically the services described in the Statement of Work section entitled “Out of Scope”.
Payment Terms means the payment terms described in the Statement of Work section entitled “Payment Terms”.
Services means the services provided by Flexbox Digital, specified as In Scope Work which relies on the Assumptions, and includes the Deliverables provided in accordance with these Terms, the details of which are set out in the relevant Statement of Work.
Special Conditions are the terms set out in a Statement of Work entitled “Special Conditions”. Software means all software or computer programs and all enhancements, developments, improvements, revisions, versions and updates to that software.
Statement of Work means the document(s) setting out specific terms and details of the Services the Client procures from Flexbox Digital in the form set out in Schedule 1 and incorporating the terms of this Agreement Term means the period of 12 months.
Variation has the meaning given in clause 5.3(b).
Website means any website, content management system and associated third party plug-ins and includes the content of the website.
The following rules of interpretation apply unless the context requires otherwise:
(a) a reference to a part, clause, annexure, exhibit, appendix or schedule is a reference to a part of, clause of, an annexure, exhibit, appendix or schedule to this Agreement and a reference to this Agreement includes any annexure, exhibit, appendix and schedule;
(b) a reference to an agreement includes any variation or replacement of the agreement;
(c) a reference to one gender includes all other genders;
(d) the singular includes the plural and the opposite also applies;
(e) if the due date for any obligation is not a Business Day, the due date will be the next Business Day;
(f) all currency amounts are in Australian dollars;
(g) headings are provided for convenience and do not affect the interpretation of the documents making up the Agreement;
(h) “include”, “includes” and “including” must be read as if followed by the words “without limitation”;
(i) a reference to a clause refers to clauses in this Agreement and is a reference to its subclauses;
(j) if a word or phrase is defined, its other grammatical forms have corresponding meanings;
(k) agreements, representations and warranties made by two or more people will bind them jointly and severally;
(l) a reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation;
(m) a person includes the person’s executors, administrators and permitted novatees and assignees;
(n)a reference to a person includes a firm, a body corporate, an unincorporated association or an authority and vice versa;
(o) a reference to conduct includes any omission, representation, statement or undertaking, whether or not in writing;
(p) no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it; and
(q) if any part of the Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the Agreement will not apply but the other parts of the Agreement will not be affected.
2. Operation and Term
(a) This Agreement represents the terms and conditions to be incorporated into a Statement of Work between the parties and applies to all Services Flexbox Digital undertakes or provides to, or on behalf, of the Client.
(b) This Agreement becomes binding from the earlier of the date on which the Client:
(i) returns a signed (including electronically) copy of a Statement of Work;
(ii) contacts Flexbox Digital and advises of their acceptance of a Statement of Work; or
(iii) having received a copy of a Statement of Work, instructs Flexbox Digital to commence any Services
notwithstanding the provision of the Services anticipated by the Statement of Work may predate its execution.
(a)This Agreement will continue for an initial period equal to the Term.
(b)If the period of an agreed Statement of Work would expire after the period of this Agreement, this Agreement will be extended automatically to coincide with the expiry of the period specified in that agreed Statement of Work.
3. Statement of Work
3.1 Operation of Statement of Work
(a) The parties may enter into Statement of Works from time to time, setting out the relevant services and additional terms to this Agreement, including payment details and contract period. Each Statement of Work is subject to this Agreement.
(b) By signing this Agreement, the Client is not obliged to engage Flexbox Digital for any particular Statement of Work, nor is Flexbox Digital obliged to accept any particular requests for a Statement of Work.
(c) Each Statement of Work constitutes a separate agreement, and the expiry or termination of any Statement of Work does not automatically affect the validity of this Agreement or any other Statement of Work(s) then on foot.
3.2 Special Conditions
(a) Special Conditions may apply to the contract between the parties as set out in the Statement of Work.
(b) Special Conditions operate as terms in addition to terms contained in this Agreement.
(c) If there is any inconsistency between any Special Condition and any terms of this Agreement, the effect of the Special Condition prevails over any inconsistent term to the extent of that inconsistency.
3.3 Relationship between this Agreement and Statement of Works
To the extent that any conflict exists, the various documents comprising a contract between the parties will take precedence in the following order (from highest to lowest priority):
(a) any variation to this Agreement, or any Statement of Work, agreed in writing between the parties;
(b) the Statement of Work, including any Special Conditions; then
(c) this Agreement.
Flexbox Digital will provide the Services as agreed in each Statement of Work, subject to this Agreement. If no Fees are set out in a Statement of Work, Flexbox Digital will provide the Services on a time and materials bases at the Default Rates.
4.2 Hours of operation
Flexbox Digital’s personnel are available during 8:30am and 5:30pm on Business Days. Services requiring its personnel’s involvement will be carried out during these hours unless otherwise determined by Flexbox Digital in its sole discretion, acting reasonably.
4.3 Performance standards
(a) Flexbox Digital agrees to:
(i) provide the Services professionally, efficiently, and to industry standards applicable in Australia;
(ii) provide the Services within any timeframe(s) set out in the relevant Statement of Work, or in any event, in a timely manner; and
(iii) use reasonable endeavours to rectify any faults in the Deliverables for which it is responsible.
(b) In performing the Services, Flexbox Digital will:
(i) comply with all relevant occupational health and safety policies;
(ii) comply with relevant laws including State and Federal laws and local government laws and regulations; and
(iii) observe the Client’s reasonable directions in relation to security or the use of any of its facilities or equipment.
4.4 Service limitations
Flexbox Digital will use reasonable efforts in providing the Services, however other than as set out in this Agreement, to the fullest extent permitted at law, Flexbox Digital:
(a) does not warrant or guarantee the Services are uninterrupted or error free;
(b) does not take any responsibility for faults, delays, or interruptions to the Services caused by:
(i) misuse or user error except to the extent the misuse or error is caused by Flexbox Digital;
(ii) any software or equipment which was not provided by Flexbox Digital;
(iii) the delays, action, operation, inaction or failure of any third party, third party service, software or equipment;
(iv) any delays by the Client in providing Client Materials; or
(v) any Force Majeure Event;
(c) is not responsible for faults in the Client’s or the Client’s customer’s software, equipment, or network;
(d) does not warrant or guarantee the Services for any fitness of purpose, performance, or compatibility other than as set out in a Statement of Work; and
(e) does not warrant or guarantee that use of the Services will bring the Client, or its customers into compliance with any particular legislation or standard.
4.5 Out of Scope services
(a) Flexbox Digital may in its sole discretion, upon request by the Client, provide Out of Scope Services. Out of Scope Services are services not included under In Scope Work, represent a change to the Services or are anything described in the Statement of Work section entitled “Out of Scope”.
(b) If the Client requests Flexbox Digital to provide Out of Scope Services after the commencement of a Statement of Work this will constitute a Variation as described in clause 5.3(b).
(c) Flexbox Digital will negotiate with the Client in respect to extra Fees (Additional Fees) which result from the Variation. Where applicable rates do not appear in a Statement of Work, the Additional Fees will be charged at the Default Rate.
4.6 Fee variation
Notwithstanding clause 4.5(c), Flexbox Digital may vary its fees at any time, by 30 days’ written notice. Any change will apply only to new Statement of Works and Out of Scope Services requested and performed after the effective date of the change.
4.7 Right to sub-contract
Flexbox Digital may appoint employees or agents to provide all or part of the Services without consent or notice to the Client. It is Flexbox Digital’s responsibility to ensure such entities are bound by the same obligations as Flexbox Digital and comply with the relevant Statement of Work.
5. Client’s rights and obligations
5.1 Nominated representative
The Client agrees, upon Flexbox Digital’s request, to nominate a key representative to liaise with Flexbox Digital, who has the authority to make decisions and give instructions on the Client’s behalf in relation to the Services.
5.2 Client responsibilities
The Client will:
(a) promptly, and in all circumstances within 5 Business Days, provide Flexbox Digital with all approval, feedback, directions, instructions, information, personnel and access to the Client’s property (such as briefs, specifications and templates), as may be required for Flexbox Digital to provide the Services in accordance with a Statement of Work;
(b) establish and maintain clear channels of communication at all times with Flexbox Digital;
(c) immediately inform Flexbox Digital of any change of circumstances that may materially impact the provision of the Services including any service failure or system threat;
(d) take all reasonable information technology security precautions, and ensure the users of its computer systems take similar precautions;
(e) reimburse Flexbox Digital the amount of all expenses reasonably and properly incurred by it in the performance of its duties under a Statement of Work, including travel expenses between Flexbox Digital’s premises and the Client’s, or its customer’s, site, accommodation and subsistence expenses, and all other expenses incurred or required to be incurred by the Client to promptly and efficiently provide the Services; and
(f) perform any Additional Obligations set out in a Statement of Work.
5.3 Change Request
(a) The Client agrees and acknowledges that the Fees are based on the scope of the Services as anticipated by the In Scope Work, Out of Scope Work and the Assumptions.
(b) If the Client wishes to change the scope or specifications of the Services after the commencement of a Statement of Work (Variation), Flexbox Digital will negotiate with the Client in respect to extra Fees (Additional Fees) which result from the Variation.
(c) Unless otherwise set out in a Statement of Work, the Additional Fees will be charged at the Default Rate.
(d) For the avoidance of doubt:
(i) any change to the In Scope Work, Out of Scope Work or Assumptions will be considered a Variation;
(ii) any other change that is considered by Flexbox Digital, at its sole and absolute discretion, to be a change to the scope of the Services, will be considered a Variation;
(iii) any additional work required owing to a change in third party Software or upgrades to operating systems (such as iOS, Android or Windows); and
(iv) Flexbox Digital is under no obligation to accept a Variation requested by the Client.
5.4 Client guarantees
The Client warrants and undertakes:
(a) it and its representatives have all necessary licences and legal right(s) to permit and authorise Flexbox Digital to provide the Services; and
(b) that Flexbox Digital providing the Services in accordance with the Client’s directions will not contravene any applicable laws.
The Client acknowledges and agrees that the suitability, accuracy, or efficacy of any Services may be subject to various factors which are outside the reasonable control of Flexbox Digital, including but not limited to:
(i) the terms and policies adopted by third party service providers, such as Google, Facebook, and other social media or communications services utilised by the Client;
(ii) market conditions and sentiment;
(iii) macro-economic or geopolitical factors;
(iv) industrial relations events; and
(v) changes in laws and regulations.
(b) The Client further acknowledges that the software that is developed by Flexbox Digital may run on third party platforms or use open source software. If any of these third party platforms, software or environments make an update or discontinue this may cause your software to be interrupted or not operate at full functionality. Applying fixes to third party software is considered an Out of Scope service unless we otherwise agree to support that third party software in a Statement of Work.
6. Marketing services
(a) Where a Statement of Work includes the provision of any marketing, “SEO” or similar services, this clause 6 applies to such Statement of Work.
(b) The Client acknowledges and agrees that all key performance indicators, targets, goals, or similar objective evaluation criteria (KPIs) agreed between Flexbox Digital and the Client, while realistic, are aspirational only.
(c) Flexbox Digital makes no representations, gives no warranties, and makes no guarantees that the Client will:
(i) achieve, complete, or satisfy any KPIs over any time period, or at all;
(ii) generate any financial return or other benefit over any time period; or
(iii) not incur a loss over any time period.
7. Maintenance Services
(a) Where a Statement of Work includes the provision of Maintenance Services, this clause 7 applies to such Statement of Work.
(b) If, as part of providing Maintenance Services, Flexbox Digital anticipates that its Fees will exceed those previously agreed to be paid by the Client (for example, where unexpected additional work is required due to an emergency):
(i)Flexbox Digital will notify the Client, and the parties will agree on any necessary variations to the Fees (whether on temporary or permanent basis);
(ii)in the case of an emergency requiring immediate work which would exceed the Fees paid or agreed to be paid:
(A) Flexbox Digital will use its best endeavours to contact the Client to obtain authorisation to proceed with the relevant work;
(B) if Flexbox Digital is unable to contact the Client, Flexbox Digital may, acting reasonably, decide to proceed with the relevant work to prevent any adverse consequence to the Client; and
(C) the Client must pay any additional costs incurred by Flexbox Digital (at the Default Rate), for which Flexbox Digital will provide to the Client an invoice for.
Where Maintenance Services are provided in relation to any Website, Software, or other asset of the Client’s which were not originally created or developed by Flexbox Digital, the Client acknowledges and agrees that:
(i)unless otherwise agreed by Flexbox Digital, Flexbox Digital has no obligation to identify, detect, or report any Bugs to the Client, although Flexbox Digital may choose to do so in its discretion without incurring any Liability to the Client; and
(ii) Flexbox Digital accepts no Liability for any Claims or losses suffered by the Client due to the use, non-use, misuse, or malfunction of any Website, Software, or other asset of the Client, even where Flexbox Digital has been engaged to provide Maintenance Services in relation to any such Website, Software, or other asset.
8. Implementation Services
Where a Statement of Work includes the provision of Implementation Services, unless otherwise agreed in a Statement of Work, the Client is responsible for extraction of data and translation of data ready for load into the new system.
9. Operational Requirements
The Client acknowledges and agrees that, unless otherwise agreed by Flexbox Digital and the Client in writing:
(a) the Services do not include the supply of any hardware (including, but not limited to, computer hardware, computer peripherals, and networking hardware), Internet connections, data hosting services, cloud computing services, or supporting software or infrastructure which may be required to use or operate any Deliverable (whether over the Internet or otherwise) (Operational Requirements);
(b) subject to clause 9(c), the Client will be required, at its own cost and expense, to acquire, arrange and install all Operational Requirements in accordance with Flexbox Digital’s requirements (including but not limited to specifications, configuration, bandwidth, capacity, speed, and timing requirements) which may involve the payment of service fees, subscription fees, licence fees and other fees to third party suppliers identified by Flexbox Digital;
(c) Flexbox Digital will, where it is provided for in any Statement of Work, provide the Client with assistance to acquire, arrange and install any one or more Operational Requirements, and the Client must, on demand by Flexbox Digital, reimburse any costs incurred by Flexbox Digital in doing so; and
(d) if any Operational Requirements involve third party suppliers, both Flexbox Digital and the Client must comply with the terms and conditions of such third party suppliers.
10. Testing and Warrant
(a) Where a Statement of Work includes the provision of Maintenance, Development or Implementation Services, this clause 10 applies.
(b) Within 30 days of Flexbox Digital supplying a Deliverable to the Client (Bug Warranty Period), the Client may notify Flexbox Digital in writing of any Bugs in the Deliverable.
(c) The Client is responsible for conducting acceptance testing of any Deliverables, which are reasonably capable of acceptance testing, within 10 Business Days of receipt of any Deliverables.
(d) Within 10 Business Days after completion of acceptance testing, the Client must provide Flexbox Digital with written notice of any Bugs in the Deliverables arising from such acceptance testing.
(e) If the Client notifies Flexbox Digital in writing of any Bug during the Bug Warranty Period, Flexbox Digital will, within a reasonable time, rectify the Bug at no further cost to the Client.
(f) If the Client does not notify Flexbox Digital in writing of any Bugs within the Bug Warranty Period, the Client is deemed to accept the Deliverable as satisfactory and in accordance with this Agreement.
(g) Once a Deliverable is accepted, the Client may not raise any objection in relation to the Deliverable, require any variation to the Deliverable, or make any claim for any Fees paid to Flexbox Digital which are attributable to the relevant Deliverable.
(h) The Bug Warranty Period does not apply to any third party software or platform which is used in the provision of the Services. Any modifications to a Deliverable as a result of changes to third party software or platforms are Out of Scope Work and will be treated as a Variation.
11.1 Payment of Fees
(a) Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
(b) Flexbox Digital will invoice the Client for the Fees, including any Additional Fees incurred as a result of a Variation.
(c) Unless otherwise stated all Fees expressed in a Statement of Work are exclusive of GST.
(d) The Client will be liable to pay Flexbox Digital the full amount of any GST applicable to any Fees.
(e) The Client will pay Flexbox Digital the Fees in accordance with the Payment Terms.
(f) If the Client fails to pay Flexbox Digital the Fees on the Payment Terms, Flexbox Digital will have the right to:
(i) charge the Client interest on the overdue amount at a rate 5% above the National Australia Bank Overdraft Base Rate;
(ii) immediately cancel any Statement of Work in effect with the Client without any obligation to refund the Client any money in respect of the cancellation, even if the contract period has not expired;
(iii)immediately initiate proceedings against the Client to recover the overdue amount; and
(iv) to recover all costs in relation to any action taken against the Client to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
11.2 Fee disputes
(a) If the Client reasonably believes an invoice contains an error, it must notify Flexbox Digital before the due date of the invoice and pay the undisputed portion of the invoice (Disputed Amounts).
(b) Provided the Client has complied with clause 11.2(a) and the aggregate of all Disputed Amounts on all invoices issued to the Client does not exceed $5,000 plus GST, Flexbox Digital will not suspend or terminate any Services for non-payment of the Dispute Amounts while the dispute is being investigated.
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) A party will not be in breach of clause 12.1(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
(c) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of a Statement of Work, do not disclose the other party’s Confidential Information.
(d) Notwithstanding any other provision of this clause, a party may disclose the terms of a Statement of Work (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
13. Intellectual Property
13.1 Client Materials
(a) The parties acknowledge that if the Client makes available to Flexbox Digital any Client Materials, then where the Client owns the Intellectual Property in said materials, the Client retains ownership.
(b) The Client warrants that it owns, or is otherwise licensed to use, the Intellectual Property in all Client Materials, and that use of the Client Materials by Flexbox Digital will not infringe the rights of any third party.
(c) The Client grants Flexbox Digital a non–exclusive, revokable, royalty free and worldwide licence to use the Client Materials for the sole purposes of providing the Services.
13.2 Flexbox Digital IP
(a) No ownership or other rights in Flexbox Digital IP are transferred to the Client under a Statement of Work and Flexbox Digital retains its right to use Flexbox Digital IP for any purpose.
(b) To the extent that the Client may at any time acquire any right, title or interest in Flexbox Digital IP, the Client assigns to Flexbox Digital all such rights, title and interest.
(c) To the extent that any Flexbox Digital IP is contained within the Deliverables, Flexbox Digital grants to the Client an irrevocable, non-exclusive, perpetual, assignable, royaltyfree and worldwide licence to use the Flexbox Digital IP where it is necessary to operate any Deliverables.
13.3 New IP
(a) The parties agree all New IP is owned absolutely by the Client and vests in the Client immediately upon payment of the Fees due under the Work Order for which it was generated.
(b) To the extent that Flexbox Digital may at any time acquire any right, title or interest in New IP, Flexbox Digital assigns to the Client all such rights, title and interest in New IP upon payment of the Fees.
13.4 Third party IP
(a) Flexbox Digital may use third party materials as necessary to provide the Services. Use of third party materials may be subject to creative commons or open source licensing terms, or such third party licensing terms.
(b) Where Flexbox Digital has used third party materials in the Deliverables it warrants that the Deliverables will not infringe in any way on any third party’s Intellectual Property, provided the Client complies with its obligations under clause 9.
The Client grants Flexbox Digital an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use images and screenshots of the Deliverables for the purpose of Flexbox Digital displaying its skills by reference to its previous work in a marketing and advertising context.
14. Limitation of Liability and indemnities
14.1 Commercial nature of a Statement of Work
The Client acknowledges and agrees it is entering into a Statement of Work for commercial purposes and not for domestic, personal or household use.
14.2 Implied conditions
Flexbox Digital expressly excludes all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.
14.3 Limitation of Liability
(a) Subject to the Non-excludable Conditions, Flexbox Digital excludes all Liability for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client, in connection with a Statement of Work, whether that Liability arises under contract, tort (including negligence) or under statute, including:
(i) Flexbox Digital’s use of third party and/or open source code;
(ii) any third party Claims in relation to a Website or Software;
(iii) incorrect, corrupt or lost data;
(iv) computer virus, trojan or other malware; or
(v) failure of any third party component of a Website or Software including, without limitation, hardware failure, network failure or power failure.
(b) Where a Non-excludable Condition is deemed to apply, to the fullest extent possible under the law, Flexbox Digital limits its liability for any breach to:
(i) in the case of goods: the re-supply of the goods or payment of the cost of the resupply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(ii) in the case of services: the re-supply of the services affected by the breach; or the payment of the cost of such re-supply of the services.
(c) Notwithstanding anything to the contrary and subject to the Non-excludable Conditions, Flexbox Digital’s Liability arising under a Statement of Work, whether that Liability arises in contract, tort (including negligence) or under statute, is limited to the Fees payable under the Statement of Work which gave rise to the damage.
14.4 Consequential Loss
Notwithstanding any other clause in this Agreement, and to the maximum extent permitted at law, Flexbox Digital excludes all liability for any Consequential Loss suffered by the Client.
14.5 Client indemnity
The Client agrees to indemnify Flexbox Digital and its Indemnified Officers against any Claim, including a Claim for Consequential Loss, damages and Liability suffered or incurred arising directly or indirectly from:
(a) the Client’s or its customer’s use of the Services; and
(b) the Client’s breach of a Statement of Work and any negligent or unlawful act or omission by the Client in connection with the Services.
15. Suspension and Force Majeure
15.1 The Client’s default and suspension
(a) Flexbox Digital may suspend the provision of Services under any or all Statement of Works at any time and give the Client a notice of default if:
(i) subject to clause 11, it fails to make any payment when due, or any payment is dishonoured or subject to a chargeback;
(ii) it fails to provide clear and timely instructions;
(iii) it fails to provide necessary Client Materials; or
(iv) the Client Materials infringe a third party’s Intellectual Property rights.
(b) Suspension of Services under this clause does not affect the Client’s liability to make payment and the suspension will immediately end when the issue giving rise to the suspension is remedied.
15.2 Force Majeure Event
(a) If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties’ obligations under a Statement of Work are suspended for the duration of and to the extent that they are affected by the Force Majeure. However, either party may end a Statement of Work if the Force Majeure continues for more than 21 days.
(b) Nothing in this clause 15.2, affects the Client’s obligation to pay the Fees.
16.1 Termination for default
(a) Either party may end any Statement of Work immediately by written notice if the other party:
(i) commits any material breach of any terms of the Statement of Work and which, in the case of a breach capable of being remedied, is not remedied within 10 Business Days of a written request to remedy it (including a breach of the Payment Terms);
(ii) commits any material breach of any terms of the Statement of Work that is not capable of remedy;
(iii) experiences an Insolvency Event; or
(iv) is guilty of dishonesty, serious misconduct or serious neglect of duty.
16.2 Termination for convenience
Either party may end any Statement of Work at any time for any reason by giving the other party 10 Business Days written notice.
16.3 Consequences of Termination
(a) If a Statement of Work ends for any reason, then in addition to any other rights Flexbox Digital may have:
(i) Flexbox Digital may issue an invoice for Fees relating to Services provided up to the point of termination but not yet invoiced for; and
(ii) the Client must pay all of Flexbox Digital’s outstanding invoices whether or not due, including any invoice issued under clause 16.3(a)(i).
(b) If a Statement of Work ends for any reason and Flexbox Digital was not in default of that Statement of Work, then:
(i) Flexbox Digital is entitled to Fees for the balance of the contract period (if any) of that Statement of Work (calculated using the Fees applicable as at the date of termination); and
(ii) any amounts owing to Flexbox Digital under this clause 16.3, excluding any costs which can be reasonably mitigated, become immediately due and payable.
(c) The parties agree that the amounts owing under clause 16.3(b) do not constitute a penalty but represent a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from early termination in light of Flexbox Digital’s sunk costs and ongoing commitments.
(d) If Flexbox Digital terminates a Statement of Work under clause 16.2 then it will refund to the Client any unused portion of Fees which were prepaid for that Statement of Work, less any other amounts owed to Flexbox Digital.
17. Dispute Resolution
(a) A party claiming a dispute has arisen under a Statement of Work (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 17 before commencing any legal proceedings.
(b) If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of this Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
(c) Each party must pay its own internal and legal costs in relation to complying with this clause 17. The mediator’s costs are to be shared equally.
(d) The parties acknowledge and agree this clause 17 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.
Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights under this Agreement or any Statement of Work without the consent of the other, which must not be unreasonably withheld.
18.2 Governing law
The laws of Victoria, Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
18.3 Entire Agreement
This Agreement and any Statement of Work contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement or the Statement of Work and has no further effect.
Nothing in this Agreement or a Statement of Work is intended to create or be construed as creating a relationship of agency, joint venture or partnership between the parties. Unless expressly stated in a Statement of Work, no party may act as agent of or in any way bind another party to any obligation.
Clauses 12 13 14 and 17 and any other clause in this Agreement or a Statement of Work which is expressed to survive or by its nature survives, will survive termination or expiry of this Agreement or the Statement of Work for any reason.
Any variation or amendment to this Agreement or a Statement of Work must be in writing signed by all parties.
18.7 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
19 Data Protection
We prioritise the protection of your data and have implemented stringent security measures to prevent unauthorised access, disclosure, alteration, or destruction. These measures include, but are not limited to, the following:
(a) Secure Infrastructure: We maintain robust security protocols within our infrastructure, incorporating firewalls, encryption, and intrusion detection systems to safeguard your data.
(b) Access Control: We have implemented strict access controls to limit data access to authorized personnel only. Access rights are regularly reviewed and updated as needed.
(c) Staff Training: Our employees undergo regular training on data protection best practices to ensure they understand the importance of data security and handle sensitive information with utmost care.
(d) Data Minimisation: We collect and retain only the necessary data required to fulfill our business purposes. Unnecessary data is promptly and securely disposed of.
19.1 Incident Response Plan
Despite our robust security measures, we recognise that no system is completely immune to potential breaches. In the event of a data breach, we have developed a comprehensive incident response plan to mitigate the impact and ensure timely resolution. The key components of our incident response plan include:
(a) Prompt Notification: We commit to promptly notify affected individuals and relevant authorities within 30 days upon discovering a data breach, providing transparent and timely communication throughout the incident.
(b) Investigation and Assessment: We will conduct a thorough investigation to determine the extent of the breach, identifying the compromised data and assessing the potential impact on affected individuals.
(c) Remediation and Recovery: We will take immediate action to contain the breach, mitigate any ongoing risks, and restore the integrity and security of our systems. This may include implementing additional security measures, applying patches, and enhancing our overall security posture.
(d) Communication and Support: We will provide support to affected individuals, offering guidance on protective measures they can take and any assistance required to minimise the potential harm resulting from the breach.
(e) Continuous Improvement: We are committed to continuously improving our security practices by learning from any incidents that may occur. We will conduct thorough post-incident reviews and implement necessary enhancements to prevent similar breaches in the future.