Managed App Service Agreement

These Standard Customer Engagement Terms, together with your Service Order Form and theManaged Service Terms, contain the terms and conditions of a legally binding agreement(the "Agreement") between Managed Applications Pty Ltd ABN 83 622 371733 ("Managed","we", "us" or "our") and the Customer named in the Service Order Form ("Customer" or "you"), for the provision of the Services specified in the Service Order Form to the Customer.See clause 15 for definitions of Capitalised terms used in this Agreement.

1.    Software as a Service

Managed will provide the Customer's Permitted Users with access to and use of theSoftware specified in the Service Order Form, subject to the Managed Terms of Service and the Software Licence Terms inSchedule 1 below.

2.    Additional Services

Managed will provide the Customer with any other Services specified in the ServiceOrder Form, in accordance with the applicable Service Descriptions and thisAgreement.

3.    Fees

(a)  The Customer must pay Managed the fees specified in the Service Order Form for the selected Services, within 14 days after the issue of an invoice by Managed.

(b)  If the Customer fails to pay the fees in accordance with this Agreement, Managed may (without limiting any other remedies available to it) suspend access to or defer performance of all or any Services until the outstanding fees are paid.

(c) The fees may be changed by Managed from time to time during the Term, as part of a general revision of customer fees by Managed.  Managed will give at least 30 days' prior notice of a change to the fees.  The Customer may reject any fee increase by terminating the Agreement under clause 4(c), at any time up to 30 days after the fee increase takes effect, otherwise the Customer will be taken to have accepted the fee increase.

4.    Account duration and termination

(a) This Agreement commences on the date of the Customer's on-line registration of a ManagedAccount and acceptance of these Terms, following the signing of a Service OrderForm by representatives of Managed and the Customer.  Unless otherwise specified in the ServiceOrder Form, the Agreement continues until terminated by written agreement between the parties or in accordance with this clause 4.

(b) Either party may terminate this Agreement at any time by giving at least 60 days' prior written notice of the termination to the other party.

(c) The Customer may terminate this Agreement by written notice to Managed with immediate effect if the Customer rejects a fee increase under clause 3(c).

(d) Either party may terminate this Agreement by written notice to the other party with immediate effect if the other party is in breach of this Agreement and fails to remedy the breach within 30 days of receiving notice from the terminating party requiring it to do so.

(e) The termination of this Agreement will not affect clauses 6, 7, 9 and 10 or any other provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination.

5.    Modification of Services

Managed may make modifications to any of the Services or particular components of a Service from time to time and will use reasonable endeavours to notify the Customer of any material modification.

6.    Intellectual Property

(a) Managed Material remains the property of Managed and, other than the licence specified in theSoftware Licence Terms, nothing in this Agreement gives the Customer anyIntellectual Property Rights in the Managed Material or any other interest inIntellectual Property Rights of Managed.

(b) Customer Material remains the property of the Customer and other than the rights and licences specifically granted to Managed under this Agreement, nothing in this Agreement gives Managed any Intellectual Property Rights in the Customer Material.

(c) Subject to paragraph (b)of this clause, the Customer grants to Managed a non-exclusive licence to exercise the Intellectual Property Rights in any Customer Material to the extent required for Managed to provide the Services to the Customer, including to use and modify the Customer Material.  

(d) The licence granted under paragraph (c) includes the right to sub-license to third parties.

7.    Confidential information

(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party provided to or obtained by that party prior to or after entry into this Agreement.

(b) A party may use or disclose Confidential Information of the other party:

(i) to its employees, officers, contractors or professional advisers to the extent necessary to perform the party's obligations or exercise its rights under this Agreement;

(ii) to the extent that it is compelled to do so by applicable law or the order of a court or governmental agency;

(iii) to the extent that the information is already in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence;

(iv) to the extent that the information is already known by, or rightfully received, or independently developed, by the recipient free of any obligation of confidence; or

(v) to the extent that the other party has given its prior written consent.

(c) If either party discloses Confidential Information under clause 7 (b)(i), that party must ensure that such information is kept confidential by the person to whom it is disclosed and only used for the purposes of performing obligations or exercising rights under this Agreement.

(d) Each party acknowledges that:

(i) the other party may suffer financial and other loss and damage if there is any unauthorised use or disclosure of the Confidential Information of the other party, and that monetary damages for a breach of this clause 7 would be an insufficient remedy; and

(ii) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent or remedy a breach of, and to compel specific performance of this clause 7.

8.    Warranties

(a) The Customer warrants, and it is a condition of this Agreement, that:

(i)  use of theCustomer Material by Managed in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party;

(ii)  all information provided by the Customer or on the Customer's behalf to Managed is accurate and is not, whether by omission of information or otherwise, misleading;

(iii) the Customer has not withheld from Managed any information that could reasonably be expected to be material to the decision of Managed to enter into this Agreement;

(iv) the Customer has all necessary consents required under Privacy Laws to provide Managed with any Personal Information which forms part of the Customer Data or other Customer Material and permit Managed to use any Personal Information which forms part of the Customer Data or other Customer Material as required to provide the Services, including to provide that Personal Information to Payment Services Providers.

(b)  Managed warrants that:

(i)    the use of theSoftware will not infringe the copyright of any third party in Australia; and

(ii)    the Services will be performed with reasonable care and diligence and will be suitable for their intended purposes.

9.    Limitation of liability

(a)  Subject to paragraphs(b) to (f) of this clause, any liability of Managed for any loss or damage, however caused (including by the negligence of Managed), suffered by the Customer in connection with this Agreement is limited to the fees for Services paid by theCustomer to Managed in the 12 months prior to the Customer first suffering loss or damage in connection with this Agreement.  

(b) Subject to paragraphs (c) to (f) of this clause, any liability of Managed for any loss or damage, however caused (including by the negligence of Managed), suffered by the Customer in connection with particular Services is limited to, at Managed's option, the fees paid by the Customer to Managed for those Services, or resupply of those Services.  

(c) The limitations set out in this clause are aggregate limits for all claims, whenever made.

(d) Subject to paragraphs (e) and (f) of this clause, Managed is not liable for any Consequential Loss however caused (including by the negligence of Managed), suffered or incurred by the Customer in connection with this Agreement.

(e)  Except as contemplated by paragraph (f) of this clause, nothing in this Agreement is intended to limit any rights of the Customer under the Competition and Consumer Act 2010 (Cth).

(f)  If the Competition and Consumer Act 2010 (Cth)or any other legislation provides that there is a guarantee in relation to any goods or services supplied by Managed in connection with this Agreement and Managed's liability for failing to comply with that guarantee cannot be excluded but can be limited, then paragraphs (a) to (d) of this clause do not apply to that liability and instead Managed's liability for such failure is limited to (at Managed's election):

(i) in the case of a supply of goods, Managed replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or

(ii) in the case of a supply of services, supplying the services again or paying the cost of having the services supplied again.

10. Indemnities

(a)  The Customer is liable for, and indemnifies Managed from and against, all loss or damage(including legal costs) incurred or suffered by Managed in connection with any breach of this Agreement by the Customer or any alleged or actual breach of a third party's Intellectual Property Rights or other rights in connection with the Customer Material arising from access to, use or disclosure of the CustomerMaterial as required to perform the Services.

(b) Subject to paragraph (c) of this clause and the Customer complying with paragraph (d), Managed indemnifies the Customer from and against any amount awarded in favour of a third party by the final judgment of a court of competent jurisdiction in a claim by a third party that use of the Software by the Customer infringes the copyright of a third party in Australia.

(c) Paragraph (b) of this clause does not apply if a claim results from modifications made to the Software by the Customer or at the Customer's direction or the Customer using the Software in conjunction with a third party product other than as noted in the Service Order Form or the software of a Payment Services Provider.

(d) If the Customer becomes aware of a third party claim contemplated by paragraph (b), the Customer must:

(i) immediately notify Managed and provide Managed with all information concerning the claim available to the Customer;

(ii) permit Managed to conduct the defence or settle the claim (as determined in Managed's discretion);

(iii) provide any reasonable assistance requested by Managed; and

(iv)  not make any statement or admission in relation to the claim without Managed's prior consent.

(e)  Each indemnity contained in this Agreement is a continuing obligation despite any settlement of account or the occurrence of any other thing, and it is not necessary for a party to incur expense or make payment before enforcing or making a claim under an indemnity.

11. Force majeure

Managed will not be in breach of this Agreement as a result of, or liable for, any failure or delay in the performance of Managed's obligations under thisAgreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Customer.

12. Dispute resolution

The parties agree that if any dispute arises out of orin connection with this Agreement ("Dispute"), the parties will first meet promptly to try to resolve the Dispute by negotiation.  If the parties do not resolve the Dispute by negotiation within a reasonable period of time, the party raising the Dispute may refer it to mediation by an accredited mediator they agree on (and absent agreement by a mediator appointed by the Resolution Institute).  Neither party may commence any court proceedings in relation to a Dispute until it has exhausted the dispute resolution procedure in this clause, unless the party is seeking injunctive or other interlocutory relief in connection with the Dispute.  

13. Use of information

(a) Any words or expressions used in this clause 13 and not defined in clause 15 have the meaning (if any) given to them in the GST Act.

(b) Unless other wise expressly stated in this Agreement, the consideration for a supply made under or in connection with this Agreement does not include GST.

(c) If a supply made under or in connection with this Agreement is a taxable supply, then at or before the time the consideration for the supply is payable:

(i) the recipient must pay the supplier an amount equal to the GST for the supply (in addition to the consideration otherwise payable under this Agreement for that supply); and

(ii) the supplier must give the recipient a tax invoice for the supply.

(d) The GST payable under paragraph (c) is to be correspondingly increased or decreased by anysubsequent adjustment to the amount of GST for the supply for which thesupplier is liable, however caused.

(e) If either party has the right to be reimbursed or indemnified by another party for a cost incurred in connection with this Agreement, that reimbursement or indemnity excludes any GST component of that cost for which an input tax credit may be claimed by the party being reimbursed or indemnified, or by its representative member or other similar person entitled to the input tax credit (if any).

(f) Where a tax invoice is given by the supplier, the supplier warrants that the supply to which the invoice relates is a taxable supply and that it will remit the GST(as stated on the tax invoice) to the Australian Taxation Office.

(g) Where a supply made under or in connection with this Agreement is a progressive or periodic supply, paragraph (c) applies to each component of the progressive orperiodic supply as if it were a separate supply.

14. General

(a) This Agreement is governed by the law in force in the New South Wales.

(b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of NewSouth Wales and courts competent to hear appeals from those courts.

(c) The CustomerRepresentative will represent the Customer for the day to day purposes of thisAgreement.

(d) The Customer may not assign, in whole or part, or novate or otherwise transfer the Customer's rights or obligations under this Agreement without the prior written consent ofManaged.

(e) Managed may assign its rights and interest under this Agreement.

(f) Time is not of the essence in the performance of obligations under this Agreement except in relation to payment obligations.

(g) The parties are independent contractors.  This Agreement is not intended and will not be taken to constitute any partnership, agency, trust or joint venture relationship between the parties.

(h) If any provision of this Agreement is void or otherwise unenforceable for any reason, that provision will be severed and the remainder will be read and construed as if the severed provision had not been included.

(i)  Any notice or approval required or contemplated by this Agreement must be in writing and delivered, posted or e-mailed to the other party at the address provided for them in the Service Order Form, which address may be updated from time to time by written notice to the other party.

(j) Any variation or amendment to this Agreement must be in writing and executed by the parties.

(k) This Agreement represents the parties' entire agreement and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.

(l) Managed may sub-contract the performance of all or any part of Managed's obligations under this Agreement.

(m) A right under thisAgreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.

(n) Without limiting any other remedy available to Managed, if the Customer fails to pay any amount payable under this Agreement, the Customer must pay Interest on that amount toManaged on demand.

(o) The Customer must comply with all applicable laws in connection with the receipt and use of the Services.

15. Definitions and interpretation

In this Agreement, unless the context otherwise requires:

Acceptance Tests means the acceptance tests agreed between the parties for the purpose of testing whether the Software will operate in a production environment.

Additional Services means any services, other than the Software, that Managed agrees to provide the Customer under this Agreement.

Commencement Date means the date specified as such in the Service Order Form.

Confidential Information of a party means the terms of this Agreement and any information:

(a) relating to the business or affairs of that party;

(b) relating to the customers, clients, employees, contractors or sub-contractors of, or other persons doing business with, that party;

(c) which is by its nature confidential;

(d) which is designated as confidential by that party; or

(e)  which the other party knows or ought to know is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Managed, includes the Managed Material, and in the case of the Customer, includes the Customer Material.

Consequential Loss for the purpose of clause 9(d), means indirect loss, loss of revenues, loss of reputation, consequential loss, loss of profits, loss of bargain, loss of actual or anticipated savings, loss of opportunities and loss or corruption of data.

Customer Data means any data provided by the Customer to Managed or input by Customer into the Services.

Customer Material means the Customer Data and any material provided by or to which access is given by the Customer to Managed for the purposes of this Agreement, including documents, reports, technical information, plans, calculations, schedules and data stored by any means.

Customer Representative means the Customer representative specified in theService Order Form, or any replacement notified in writing by the Customer to Managed.

Documentation means any documentation provided by Managed to the Customer in connection with the Software.

Force Majeure Event means any occurrence or extraordinary condition or state of affairs outside a party's control, including but not limited to a natural disaster, epidemic or quarantine restriction, a prohibition or restraint by government order, a law taking effect after the date of this Agreement, a disruption to or unavailability of the internet, a labour dispute, or the failure of a third party service provider to Managed to provide services, including hosting services.

GST Act means A New Tax System (Goods and Services Tax)Act 1999 (Cth) and any other legislation or regulation which imposes, levies, implements or varies a goods and services tax.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, trade or business or company name, indication of source or appellation of origin or other proprietary right, or right of registration of such rights.

Interest means interest on any payment owing under this Agreement, calculated at the rate which is 5% in excess of the published Reserve Bank of Australia cash target rate from time to time (or, if lower, the maximum rate permitted by applicable law), daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant interest.

Licence Certificate means the Licence Certificate issued by Managed which specifies the Software modules, Users and Operating Environment for which the Customer is licensed and certified.

Managed Material means any material provided by or to which access is given by Managed to theCustomer for the purposes of this Agreement, including documents, reports, technical information, studies, plans, calculations, schedules and data stored by any means, and includes the Software but excluding Customer Data.

Managed Software means the Software that is not Third Party Software.

Managed Terms of Service means the Terms of Service set out atwww.managedapp.com.au/terms-conditions.

Module means a module of the Software.

Operating Environment means an operating environment which has been approved by Managed as suitable for the operation of the Software.

Payment Services Providers means third party payment processors contracted by Managed to provide payment facilitation services via the Software.

Permitted Users means employees or contractors of the Customer, and any other persons thatManaged may in its discretion include as Users in the Customer's LicenceCertificate.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Privacy Act means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.

Privacy Laws means the Privacy Act, the Australian Privacy Principles, and all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the use, disclosure or possession of PersonalInformation.

Software means the software specified in the Service Order Form.

Services means all services as specified in the Service Order Form including access to and use of the Software on and subject to the licence terms in Schedule 1.

Service Descriptions means the written service descriptions and specifications (if any)published by Managed from time to time on the website at the domain www.managedapp.com.au.

Third Party Software means any software in which the Intellectual Property Rights are owned by a third party, including any software listed as such in the Service Order Form.

Interpretation in this Agreement unless the context indicates a contrary intention:        

(a) a reference to any party includes that party's administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;|

(b) a reference to any document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

(c) a reference to any statute or to any statutory provision includes any statutory modification or re‑enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described)issued under it;

(d) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;

(e) references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, appendix, exhibit or annexure to this Agreement;

(f) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning

(g) the word including or words of like meaning are not words of limitation;

(h) a reference to $ or dollar is to Australian currency; and

(i)  in the event of an inconsistency or conflict between the documents constituting this Agreement, the documents shall rank in the following order of priority (with document (i) being the highest in priority, etc.):

(i) the Service OrderForm;

(ii) Annexure A to theService Order Form (if used) and any other documents attached to the ServiceOrder Form;

(iii) the Managed Terms of Service;

(iv) these StandardCustomer Engagement Terms;

(v)  other documents attached to or specifically incorporated by reference into this Agreement.

Schedule 1 - Software License Terms

1. Licence

1.1  For so long as the Customer pays the licence fees and doesn't breach any terms of this Licence, Managed has the right to, and grants to the Customer and its Permitted Users during the Term, a non-exclusive, non-transferable licence to use the Documentation and operate the Software in the Operating Environment solely within the terms of the Licence Certificate.

1.2 This Licence allows the Customer and its Permitted Users to operate the Software to lawfully pursue the Customer's business activities to the limited class as specified in the Service Order Form.

1.3 The Customer agrees that it will:

(a) ensure that the PermittedUsers accept the Managed Service Terms and abide by the terms and conditions of this Licence;

(b) not sell or rent the use of, or results of the use of the Software to anyone outside its business;

(c) not mortgage, charge or otherwise encumber the Software or Documentation;

(d) not provide theLicence Code to any third party at any time; and

(e) not transfer or permit the transfer of the Software to any alternative hosting environment (other than a service operated by Managed) without first obtaining Managed's consent.

2. Managed's rights

2.1 The Customer agrees that all intellectual property rights in the Software and Documentation remain owned by Managed at all times.  
The Customer must not copy, alter, modify or reverse engineer the Software without Managed's express permission.  In addition to all other rights under this Licence, all intellectual property in any unauthorised modification or reproduction of the Software is automatically assigned to Managed upon its creation.  The Customer will fully indemnify Managed for all costs (including legal costs), liabilities, losses or expenses incurred or suffered by Managed as a result of the Customer's breach of this clause.

2.2  The Customer agrees that the rights and obligations it has under this Licence may not be assigned, transferred or otherwise parted with, without written authorisation from Managed.

2.3  The Customer may not sub-license the Software or any modification to any person without Managed's consent in writing.

2.4  The Customer must ensure that it employs appropriate security and control measures to ensure that only authorised personnel use the Software and Documentation.

3.  Warranty

3.1 Managed warrants that the Software functions substantially in accordance with the Documentation and that if any errors occur in either the Software or the Documentation, then it will use its best endeavours to promptly rectify those errors after it receives written notification of this occurring (the "Warranty").

3.2 The Warranty extends for the duration of this Licence provided that:

(a)  the Customer operates the Software in the Operating Environment solely within the terms of the Licence Certificate;
(b)  the Customer uses the Software only for the purposes of its business.

3.3  The Customer must ensure that adequate backup and recovery procedures exist to ensure that at all times the database can be recovered.

3.4  The Warranty may be voided by the use of consultants who have not been certified by Managed as competent to provide Services for the Software release the Customer is using.

4. Delivery

4.1 Access to the licensed Software will be provided viaManaged's website as part of the Services.

5. Acceptance

5.1 Acceptance Tests will be performed for the Customer for the initial and each subsequent new version of the Software, to ensure theSoftware, and site-specific configurations and data conversions meet the Customer's requirements and are fit for use.

5.2  All Software is deemed to have been tested and accepted when the Software is used in a production environment.

6. Third party products

6.1 Managed may make use of or make available to the CustomerThird Party Software in connection with the Services.  Despite anything to the contrary in the Agreement, Customer's use of and access to such Third Party Software is subject to and conditional on the Customer's compliance with the Third Party Software Terms.

6.2 Managed will extend to the Customer the benefits of any warranties and indemnities provided under the Third Party Software Terms to the extent that Managed has the right to do so. Except as set forth in this clause:

(a) Managed makes no, and expressly disclaims all, representations and warranties with respect toThird Party Software; and

(b) use of the ThirdParty Software is at the Customer's sole risk.

7. Confidential material

7.1 The Customer acknowledges that the Software and theDocumentation is Confidential Information.

8. Term

8.1 This Licence commences on the date specified in the Licence Certificate and continues for the duration of the Agreement of which this Licence forms part, or until otherwise terminated in accordance with clause 9 of this Licence.

9. Termination

9.1 This Licence automatically terminates immediately if:

(a) the Customer breaches clause 2.1 of this Licence; or

(b) the Customer commits a breach of any other term of this Licence and fails to remedy that breach within 30 days of receiving a notice in writing from Managed specifying the breach; or

(c) the Agreement betweenManaged and the Customer is terminated.

9.2 After termination under clause 9.1, the Customer agrees that it will then immediately delete and destroy all copies of the Software and Documentation that it has in any form whatsoever in its possession or under its control or, at the request of Managed, deliver them to Managed.