This Master Services Agreement sets out the general terms and conditions under which Thinkex Holdings Pty Ltd (EFEX) has agreed to supply Services to the Customer.



1             Definitions

1.1         Definitions

In this Agreement:

Agreement means this document (the Master Services Agreement), the applicable Service Schedule(s), (including any attachments and annexures thereto) and any EFEX protocols, price lists, rules, operations manuals and policies which are published on EFEX’s website or notified to the Customer, as amended from time to time;

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth.);

EFEX Equipment means equipment that EFEX, or its affiliates or its Supplier owns or uses that it allows the Customer to use or access in relation to the Services.

EFEX Infrastructure means any facilities, network or equipment, including EFEX Equipment, owned or used by EFEX,or its affiliates or its Supplier;

Business Day means a day which is not a Saturday, Sunday or public holiday in the state that the Service is supplied;

Business Hours means 8.30 am to 5.00 pm on a Business Day;

Charge means a fee payable by the Customer to EFEX for Services or Supplied Equipment;

Claim means any allegation, suit, action, demand, cause of action, judgment or proceeding of any kind made in respect of any Loss under or in connection with this Agreement;

Commencement Date means the date that this Agreement is executed by both Parties;

Confidential Information of a Party means information in any form that is disclosed to, received by or discovered by the other Party under or in connection with this Agreement and:

(a)          is designated by the discloser to be confidential;

(b)          is by its nature confidential; or

(c)           is information which the recipient ought to know is confidential;

but does not include information that:

(d)          is or becomes part of the public domain through no act, omission or default of the recipient;

(e)          is disclosed to the recipient by a third party who lawfully possesses the information and who is not obliged to keep it confidential; or

(f)           was in the recipient Party’s possession before it was disclosed to the recipient or was received or discovered by it;

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 cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages;

Consumer Guarantee means a guarantee under Part 3-2, Division 1 of the Australian Consumer Law;

Control has the meaning given to it in the Corporations Act;

Controller means an administrator, receiver, receiver and manager, trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office, or acting or purporting to act in an analogous capacity, whether pursuant to any statute, the order or authority of any Court or any other Regulatory Authority or any Security Interest or otherwise.

Corporations Act means the Corporations Act 2001 (Cth);

CPI means the Consumer Price Index, All Groups Index Number published by the Australian Bureau of Statistics;

Customer means the Party for whom this document has been prepared, as specified on the front page or the Overview Section of this document;

Customer Equipment means all of the Customer’s fixtures, chattels, hardware, facilities, materials, fittings, plant, tools, devices, machinery, cables and equipment used in connection with a Service;

Customer Premises means locations where EFEX or a Supplier provides Services or equipment to the Customer;

Encumbrance means a mortgage, lien, loan, fixed or floating charge, or any other interest granted to a third party;

Fault means a fault or failure in the Service;

Force Majeure Event means an event or cause beyond the reasonable control of the Party claiming force majeure, including:

(g)          acts of God or nature, lightning, storm, flood, fire, earthquake, explosion, pandemic, cyclone, tidal wave or landslide;

(h)          strike, lockout or other labour difficulty;

(i)            acts of a public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, emergency, epidemic or trade embargo;

(j)           government action or inaction, change or introduction of law; and

(k)          any failure of supply;

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Initial Term means the minimum period specified in a Service Schedule and which commences on the RFS Date;

Insolvency Event means the happening of any of the following events:

(l)            the Customer is unable to pay its debts as and when they fall due or is unable to certify that it is able to pay its debts as when they fall due;

(m)         the Customer commits an act of bankruptcy;

(n)          an application is made to a court for an order, or an order is made appointing a liquidator or provisional liquidator in respect of the Customer (or proceedings are commenced or a resolution passed or proposed in a notice of meeting for any of those things);

(o)          proceedings are initiated with a view to obtaining an order for the winding up or similar process of the Customer, an order is made or an effective resolution is passed for the winding up of the Customer, or the Customer is deregistered or dissolved;

(p)          except to reconstruct or amalgamate whilst solvent on terms approved by EFEX, the Customer enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement, or  compositions with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any class of its creditors;

(q)          a Controller is appointed to or over, or takes possession of, all or a substantial part of the assets or undertaking of the Customer;

(r)           the Customer is, or is deemed to or presumed by law or a Court to be, insolvent;

(s)           the Customer takes any step to obtain protection, or is granted protection, from its creditors, under any applicable legislation, or an administrator is appointed to the Customer;

(t)           anything analogous or having a substantially similar effect to any of the events specified above happens in respect of the Customer under the law of any applicable jurisdiction.

Intellectual Property means all rights in industrial and intellectual property, in Australia and worldwide, including without limitation, any copyright, moral rights, trade or service marks, patents, registered and unregistered trademarks, registered designs, trade secrets, knowhow, rights in relation to semiconductors and circuit layouts or designs, formulas, components, concentrations, protocols, trade, business or company names, indication or source or designation of origin, or other proprietary right, or right to registration of such rights;

Laws means, including but not limited to, any statute, law, rule, regulation, proclamation, ordinance, by-law, direction or determination of a Regulatory Authority, statutory instrument, industry code, order, guidelines or standard;

Loss means any loss, damage, cost, interest, tax expense, debt, fee, penalty, fine, forfeiture, assessment, liability or damages suffered or incurred by a person;

Monthly Term Charge means the minimum Charge per month for the Services as set out in a Service Schedule;

Party means a party to this Agreement;

Personal Information has the same meaning as in the Privacy Act 1988 (Cth).

Personnel means, in respect of a Party, its employees, directors, agents, representatives and contractors;

PPSA means the Personal Property Securities Act 2009 (Cth);

Recovery Cost means all costs and expenses incurred by EFEX in effecting, or attempting, repossession of the EFEX Equipment, EFEX infrastructure, Supplied Equipment or Supplier Infrastructure, and installing, repairing, insuring, valuing and disposing of such items, satisfying any third party claims with respect to the Customer Equipment and provision of the Services or enforcing the Customer’s obligations under this Agreement or a Service Schedule and any legal costs on a solicitor-client basis or other cost incidental to such matters.

Regulatory Authority means any of the Australian Communications and Media Authority, the Department or Minister of Communications and the Arts, the Australian Competition and Consumer Commission, the Communications Alliance, the Telecommunications Industry Ombudsman or any other government or statutory body or authority having relevance to this Agreement;

RFS Date means the earlier of the date that EFEX informs the Customer that a Service is operational, when the Service is made available to the Customer, or when the Customer commences to use the Service;

Scheduled Maintenance means maintenance that EFEX or a Supplier considers is required to ensure that it achieves Service Levels or maintains an appropriate level of service;

Security Deposit means an amount that EFEX may require the Customer to pay to EFEX in order for EFEX to manage the financial risk of providing goods or Services to the Customer.

Security Interest includes any mortgage, pledge, lien or charge, security interest or any security or preferential interest or arrangement of any kind or any other right of, or arrangement with, any creditor to have its claims satisfied in priority to other creditors with, or from the proceeds of, any asset.

Service means a product or service supplied by EFEX to the Customer under this Agreement, as more particularly specified in a Service Schedule;

Service Commencement Date means the estimated date specified in the Service Schedule;

Service Level means the standard of service set out in the Service Level Agreement or SLA (if applicable);

Service Level Agreement or SLA means the standard of service to be provided by EFEX in relation to that Service  as set out in a Service Schedule (if applicable);

Service Schedule means a schedule accepted by EFEX in accordance with this Agreement which sets out terms and conditions and any other relevant information that is specific to a particular Service, an example of which is set out in Annexure A to this Agreement;

Special Conditions means any additional terms and conditions, or variations to the terms and conditions, which are agreed between the Parties, as set out in a Service Schedule;

Supplied Equipment means equipment that EFEX supplies to the Customer whether for loan, rent or sale as required to provide the Service (and as described in the Service Schedule).

Supplier means a third party telecommunications carrier, carriage service provider, supplier of telecommunications services, equipment supplier, software licensor or supplier that is used by EFEX to supply the Service to the Customer;

Supplier Infrastructure means any facilities, network or equipment owned or used by a Supplier;

Term is defined in clause 3.


1.2         Interpretation

In this Agreement, headings are for convenience only and do not affect interpretation and, unless the contrary intention appears:

(a)          a reference to a person includes a reference to a corporation, trust, partnership, association or other entity and vice versa;

(b)          the singular includes the plural and vice versa;

(c)           if an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(d)          a word defined in this document and used but not defined in other parts of the Agreement, has the meaning given to it in this document;

(e)          a provision of this Agreement must not be construed adversely to a Party solely because that Party drafted this Agreement or any part of it;

(f)           the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;

(g)          reference to a clause or schedule is a reference to a clause of or schedule to this Agreement;

(h)          reference to a Party includes its successors and assigns;

(i)            reference to a Party’s act, omission or negligence is also a reference to the act, omission or negligence of any person who is under that Party’s control;

(j)           reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re- enactments or replacements of any of them.



2             Formation of Agreement

2.1         Service Schedule

EFEX will supply Services in accordance with a Service Schedule . Upon acceptance by EFEX of a Service Schedule, the terms of this Agreement apply except to the extent explicitly excluded in the Service Schedule. EFEX reserves the right to conduct a feasibility study and may reject all or part of a Service  Schedule submitted to it in its reasonable discretion.

2.2         Precedence

To the extent of any inconsistency between this Master Service Agreement, a Service Schedule, EFEX protocols, price lists, rules and policies will be read in the following descending order of precedence:

(a)          any Special Conditions set out in a Service Schedule;

(b)          a Service Schedule;

(c)           this Master Services Agreement;

(d)          EFEX protocols, price lists, rules and policies including any acceptable use policy published on the EFEX website or otherwise notified to the Customer.


3             Term

3.1         This Master Services Agreement commences on the date of this Agreement and continues until terminated in accordance with clause 16 (Term).

3.2         Unless terminated in accordance with the Agreement, a Service Schedule remains in force for the Initial Term. Upon expiry of the Initial Term, a Service Schedule continues on a month to month basis until terminated by either Party giving the other Party at least 30 days written notice of termination. Any Special Conditions apply after expiry of the Initial Term unless otherwise agreed in writing.


4             Service Level Agreement

4.1         EFEX will provide the Services in a professional manner expected of a competent and experienced supplier, and in accordance with best industry practice, Laws, and Service Levels set out in an applicable SLA.


4.2         If a SLA applies, the remedies set out in the SLA are the sole remedies available to the Customer in relation to any Claim arising from EFEX's failure to achieve a Service Level.

4.3         The Customer agrees that the performance and availability of the Service is not warranted beyond the SLA and that EFEX does not represent or warrant that the Service will be compatible with particular computer systems, software, data formats, equipment, or operating systems unless provided to the Customer by EFEX or expressly stated in the Agreement.


5             Supply of Services

5.1         EFEX will make all reasonable efforts to provision a Service in accordance with agreed target dates, however it is agreed that target dates are an estimate only and EFEX is not liable for any failure to supply a Service by the scheduled date.

5.2         EFEX will comply with all reasonable directions of the Customer when accessing Customer Premises.

5.3         The Customer will pay the Charges for the Services as set out in the Service Schedule and at the times specified in the Service Schedule. additional charges may apply to those agreed in a Service Schedule if the Service requires services from a Supplier..

5.4         EFEX may monitor the Customer's usage of the Service and communications sent via the Service for billing, network monitoring, network management and if required by Law, but always in accordance with and subject to Law.


6             Supplied Equipment

6.1         If agreed in a Service Schedule, EFEX or a Supplier will provide Supplied Equipment to the Customer.

6.2         The Service Schedule will state if Supplied Equipment is being loaned, rented or purchased. If loaned or rented, the equipment may have been previously used.

6.3         Title in purchased Supplied Equipment passes to the Customer when it has paid the full purchase price for the Supplied Equipment and until that time the Customer holds the Supplied Equipment as bailee for EFEX or the Supplier. EFEX retains title in loaned or rented Supplied Equipment. Unless and until title in Supplied Equipment passes to the Customer, the Customer must fully insure the Supplied Equipment for its replacement value and at EFEX's request provide a certificate of currency of the insurance.

6.4         Risk in Supplied Equipment passes to the Customer upon delivery to the Customer's Premises or on pick up if being picked up by or on behalf of the Customer from EFEX or the Supplier.

6.5         Charges for rented Supplied Equipment will be set out in the Service Schedule and must be paid by the Customer.

6.6         The Customer must keep loaned or rented Supplied Equipment in good repair (fair wear and tear excepted) and free from any Encumbrance or Security Interest.

6.7         EFEX or the Supplier may repair or replace defective Supplied Equipment, however if the defect is the result of the Customer's misuse, unauthorised repair or modification, the Customer is liable for the cost of the repair or replacement.


6.8         If it is able to do so, EFEX assigns any manufacturer's warranty in purchased Supplied Equipment to the Customer. To the extent permitted by law (and subject to any applicable Consumer Guarantees), EFEX does not provide any further representation or warranty in regard to Supplied Equipment.


7             EFEX Equipment and Infrastructure

7.1         The Customer permits EFEX, its contractors or Suppliers, to access the Customer Premises to maintain, replace or remove Supplied Equipment, EFEX Equipment or EFEX Infrastructure.

7.2         Access granted under clause 7.1 is subject to EFEX, its contractors and Suppliers complying with the reasonable directions of the Customer in respect of accessing the Customer Premises.

7.3         The Customer must allow EFEX or Suppliers to do anything necessary to establish or demonstrate that EFEX or the Supplier owns the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer. The Customer must not remove any serial numbers or EFEX or Supplier insignias from the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer or allow or create any Encumbrance or Security Interest to be created in relation to the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer.

7.4         The Customer must ensure that appropriate care is taken of the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer and, fair wear and tear excluded, is responsible for damage or theft of the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer.


8             The Customer's obligations

8.1         Use and supply of Services

The Customer must

(a)          comply with and ensure that its Personnel comply with all relevant Laws and requirements of Regulatory Authorities with regard to the use of the Service;

(b)          ensure that it has all necessary licences, approvals, or permits required for the installation and operation of equipment at the Customer Premises including where necessary the consent of the owner of the Customer Premises;

(c)           provide any necessary assistance for EFEX or the Supplier to obtain any licences, approvals, or permits to provide the Services or install equipment;

(d)          provide EFEX or the Supplier with all information and assistance reasonably required for EFEX and/or a Supplier to provide the Services and meet its obligations under this Agreement;

(e)          provide EFEX or the Supplier with safe and prompt access to Customer Premises for the purpose of delivering Services;

(f)           provide EFEX with prompt access to the Customer's Personnel, information, equipment and data if reasonably required for the purpose of delivering Services;

(g)          ensure that adequate space, electricity, air conditioning and earthing is provided for safe and adequate installation and operation of equipment necessary for the Service;

(h)          take reasonable steps to ensure that nothing is done or omitted to be done that could interfere with the operation of EFEX Infrastructure;

(i)            provide and maintain its own equipment, network and network security where relevant to the operation of Services;

(j)           take reasonable steps to ensure that cabling at the Premises used in the provision of the Services has been installed by a registered cabler and complies with applicable standards;

(k)          comply with applicable operational requirements, procedures and technical specifications reasonably required by EFEX or the Supplier;

(l)            ensure that the Service is not used in a manner that interferes with EFEX Infrastructure, Supplier Infrastructure or services provided to other parties;

(m)         use all reasonable efforts to ensure that the Service is not used to transmit viruses or other material that is designed to or could interfere with the functions of software or hardware;

(n)          not resell or resupply the Services to any third party.

(o)          not and ensure that its Personnel does not, do any act or omission that will or may compromise the security or integrity of EFEX’s Infrastructure or a Supplier’s Infrastructure.

8.2         The Customer accepts that it is responsible for any risks and Charges relating to the use of the Service by the Customer, including non-authorised use.

8.3         Any IP address space that is provided to the Customer by EFEX remains EFEX’s property and must be immediately relinquished by the Customer to EFEX upon EFEX’s request, upon termination of a relevant Service or upon termination of the Agreement.


9             Faults

9.1         If a Fault occurs the Customer must attempt to diagnose its cause prior to contacting EFEX to determine that the Fault is not caused by Customer Equipment, the Customer's software, electrical supply, content or services that are not supplied by EFEX. The Customer is responsible for rectifying Faults relating to Customer Equipment, the Customer's software, electrical supply, content or services that are not supplied by EFEX. and for any costs incurred by EFEX or a Supplier in relation to Faults that arise for such a reason.

9.2         After its initial diagnosis, the Customer should report a Fault to EFEX's network operations centre as soon as possible. EFEX will endeavour to rectify Faults in accordance with any applicable SLA or if a SLA does not apply within a reasonable time.

9.3         EFEX is not responsible for repairing Faults that are outside its reasonable control, including Faults relating to software developed or licensed by any third party that is used by EFEX or the Customer in relation to the Service, however EFEX may request the third party to rectify the Fault.

9.4         The Customer is liable for any reasonably incurred costs that EFEX incurs in rectifying a Fault that arises as a result of:

(a)          an act or omission of the Customer or its Personnel; or

(b)          defects or failures in networks, equipment, facilities or software that is not EFEX Equipment or EFEX Infrastructure.


10           Maintenance

10.1       Maintenance may be performed by EFEX, its Suppliers, or its third party software suppliers or licensors when required.

10.2       EFEX will endeavour to provide at least 10 Business Days’ notice of Scheduled Maintenance and where possible undertake Scheduled Maintenance at a time that will minimise disruption to the Customer's use of the Services. If unscheduled or urgent maintenance is required or if a Supplier undertakes maintenance, it may not be possible for EFEX to provide notice or to schedule the maintenance at a time that is convenient to the Customer.

10.3       EFEX may suspend the Service if necessary because of an emergency, to comply with a Law or direction of a Supplier, to protect persons, EFEX Equipment, EFEX Infrastructure, Supplier equipment or networks.


11           Compliance

11.1       Interception Laws

The Customer acknowledges that EFEX or a Supplier may be legally required to monitor the Service, intercept communications or retain data relating to communications over the Service if required by Law, a request from an authorised agency or a direction of a Regulatory Authority.

11.2       Illegal use

The Customer agrees that it must not use the Service:

(a)          for illegal purposes;

(b)          to create, publish, transmit material that is illegal, defamatory, threatening, indecent, abusive, discriminatory, in breach of confidence or confidentiality obligations, or which may damage the reputation of EFEX or a Supplier.


12           Privacy

The Customer consents to EFEX's and a Supplier’s collection, use, storage and disclosure of Personal Information of the Customer and its Personnel for purposes relating to the supply of Services to the Customer, including:

(a)          disclosure to Regulatory Authorities or other third parties where required by law or to assist in the enforcement of Laws;

(b)          disclosure to Suppliers for purposes relating to the supply of Services to the Customer;

(c)           billing, account and relationship management, product development and marketing to the Customer;

(d)          the provision or rectification of a Service.


13           Confidentiality

13.1       Each Party must keep confidential any Confidential Information provided to it by the other Party, and each Party must use the Confidential Information only for the purposes of this Agreement.

13.2       Subject to any legal obligations, upon termination of this Agreement, each Party must return any Confidential Information in its possession that belongs to the other Party and each copy of that Confidential Information, or at the option of the other Party, certify that the Confidential Information has been destroyed.

13.3       A Party may disclose Confidential Information of the other Party to the extent it is required to do so by Law, stock exchange rules, or by order of any court or Regulatory Authority.

13.4       EFEX may state that the Customer has acquired Services from EFEX in marketing material and use the Customer's trademarks and logos in the same.


14           Intellectual property

14.1       The Intellectual Property of each Party as at the date of this Agreement remains its property.

14.2       All Intellectual Property in any materials, domain names and internet protocol numbers provided by EFEX to the Customer in relation to the Services and EFEX Equipment including but not limited to installation, operation and training documentation and software remains the property of EFEX or where relevant EFEX's Supplier.

14.3       EFEX grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to use the Intellectual Property owned by or licensed to EFEX during the Term for the purpose of using the Services and subject to any conditions imposed by EFEX.

14.4       The Customer's licence to use Intellectual Property owned by or licensed to EFEX is subject to:

(a)          not copying any part of the Intellectual Property except where reasonably necessary for the purposes of backup/data recovery, audit and compliance purposes, or as part of the ordinary operations of internal communications systems;

(b)          treating the Intellectual Property as EFEX's Confidential Information, save that:

(i)            use of the Intellectual Property in accordance with and as contemplated by this clause 14 will not in itself constitute a breach of clause 13; and

(ii)           the Customer will not be required to comply with clause 13 to the extent that clause 13 imposes obligations on the Customer which would otherwise apply to Intellectual Property but for the operation of sub-clauses 14.4(i) and (ii).

(c)           returning all copies of the Intellectual Property to EFEX upon expiry or termination of the Agreement, or, certifying that the Intellectual Property has been destroyed.

14.5       The Customer acknowledges that it has read and agrees to be bound by the terms of any third party software licences that apply to the Customer's use of software that is used in the Services. The Customer agrees that it will reimburse EFEX in respect of any finally-adjudicated claims made by a third party software licensor arising from a breach of the third party software licence, by the Customer or its Personnel, subject to reduction of the Customer’s liability to the extent that EFEX has caused or contributed to the circumstances giving rise to the third party’s claim, and provided that EFEX takes reasonable steps to mitigate its loss.

15           Force Majeure

15.1       Except for obligations relating to payment, neither Party is in breach of this Agreement nor liable to the other Party because of a failure or delay in performing its obligations to the extent caused or partially caused, whether directly or indirectly by a Force Majeure Event.

15.2       A Party relying on a Force Majeure Event must undertake reasonable steps to mitigate the effect and duration of the Force Majeure Event.


16           Termination

16.1       Termination by EFEX

EFEX may terminate this Agreement or a Service Schedule, without liability to the Customer, by giving written notice to the Customer, if:

(a)          Except as permitted by clause 25.6,  a change of Control of the Customer occurs without EFEX's prior written consent;

(b)          the Customer fails to pay an undisputed invoice within 14 days of its due date;

(c)           the Customer commits a material breach of the Agreement that is not capable of remedy or otherwise repudiates its obligations under the Agreement;

(d)          immediately if the Customer commits a material breach of the Agreement that is capable of remedy but fails to remedy the breach within 14 days of receiving a notice to do so from EFEX;

(e)          an Insolvency Event occurs in respect of the Customer;

(f)           enforcement proceedings are taken against the Customer or any of the Customer’s assets;

(g)          on 14 days’ notice if a Force Majeure Event prevents EFEX from substantially performing its obligations under this Agreement for a period of more than 60 days;

(h)          with such notice as is reasonable in the circumstances if a Supplier failure occurs, a Supplier materially alters its terms of supply, or any permit, consent, licence or lease required for the provision of the Service cannot be obtained or retained, and despite the best efforts of EFEX a substitute Service or Supplier cannot be obtained within 30 days;

(i)            with such notice as is reasonable in the circumstances if a change in Law makes it illegal to continue providing the Service;

(j)           with at least 3 months’ notice if it is commercially unviable to continue providing the Services, and the parties have been unable to agree (acting reasonably) on alternative pricing and/or terms that would make provision of the Service commercially viable.

16.2       Termination by the Customer

The Customer may terminate this Agreement or a Service Schedule, by giving written notice to EFEX :

(a)          immediately if EFEX commits a material breach of the Agreement that is capable of remedy but fails to remedy the breach within 30 days of receiving a notice to do so from the Customer;

(b)          prior to the RFS Date and paying EFEX all costs that it has incurred preparing for the Service including costs relating to equipment, infrastructure, installation and any costs that are payable to EFEX's Suppliers.

16.3       Termination on expiry of Services

Upon expiry of the last remaining Service either Party can terminate the Agreement by giving 30 days written notice,

16.4       Consequences of termination

(a)          Termination of the Agreement also terminates all Service Schedules.

(b)          Termination of a Service Schedule does not automatically terminate the Agreement.

(c)           Termination does not affect any accrued rights or remedies of either Party.

(d)          If termination occurs pursuant to any of clauses 16.1(a) to 16.1(d), the Customer must pay EFEX on demand the balance of the Monthly Term Charges for the Initial Term from the date of termination, which the Parties agree is a reasonable and genuine pre-estimate of the loss that EFEX will suffer as a consequence of the early termination of the Agreement.

(e)          If termination occurs pursuant to clause 16.2(a), EFEX must pay the Customer on demand any Charges (or part thereof) which the Customer has paid in advance for Services which have not been provided or will not be provided by reason of such termination.

(f)           Subject to there being no amounts owing (whether actually or contingently) by the Customer to EFEX, EFEX will, following termination of this Agreement, return any Security Deposit to the Customer.

16.5       Surviving rights after termination

(a)          Termination of this Agreement or a Service Schedule does not operate as a waiver of any breach by a Party or any of its provisions and is without prejudice to any rights, liabilities or obligations of any Party that have accrued up to the date of the termination or expiry, including a right of indemnity.

(b)          Termination of this Agreement or a Service Schedule for any reason will not affect the operation of the provisions of this Agreement or the Service Schedule which by their nature survive termination.

(c)           If this Agreement or a Service Schedule is terminated pursuant to clause 16.1, the

Customer must pay EFEX any fees or charges that EFEX reasonably incurs:

(d)          to recover any Charges due to EFEX by the Customer;

(e)          Recovery Costs, including as a result of the Customer not paying a Charge in accordance with this Agreement or a Service Schedule;

(f)           in connection with any assignment or variation of this Agreement;

(g)          for the provision of information to any Party in connection with this Agreement; or

(h)          to recover security registration or other fees.

17           Variations

17.1       Subject to clause 17.2, on 60 days’ notice to the Customer, EFEX may vary this Agreement including but not limited to varying a Service Schedule, and/or price list if there is a change in a Law or a new Law is introduced or a Supplier varies, replaces or terminates its terms of supply to EFEX and as a result EFEX acting reasonably considers that it is necessary for it to vary the terms on which it supplies Services to the Customer.

17.2       If a variation made pursuant to clause 17.1 is materially detrimental to the Customer and the Parties have (acting reasonably) been unable to agree on alternative pricing or terms, the Customer may within the 60 day notice period set out in clause 17.1 terminate the Service Schedule without penalty or remaining Monthly Term Charge.



18           Charges and billing

18.1       Unless specified otherwise in a Service Schedule, EFEX will invoice the Customer monthly in advance for Services and may start to invoice the Customer from the RFS Date whether or not the Customer has commenced to use the Service. The Customer must pay Charges for purchased Supplied Equipment or the installation of equipment in advance of the installation and/or supply.

18.2       The Customer agrees to pay to EFEX the Charges for each Service provided to the Customer and to pay invoices within 14 days of the date of the invoice

18.3       Unless otherwise expressly stated, the Charges are exclusive of GST.  If any supply made under this Agreement is subject to GST, the Customer must pay EFEX the Charge plus, at the same time, an amount equal to GST payable.  Any taxes, levies or duties payable under or in connection with this Agreement are payable by the Customer.

18.4       EFEX may:

(a)          upon giving written notice to the Customer, adjust the Charges to reflect any verifiable change in EFEX’s costs of performing its obligations under this Agreement, including a variation in the price of utilities such as power, applicable tax charges, Supplier charges, labour and other inputs; and

(b)          charge interest on due and unpaid amounts from the due date to the date of payment in full, such interest to be calculated on daily balances at the rate of 2% above the per annum business overdraft rate charged by the National Australia Bank on the last day of each applicable month. The right to charge interest is without prejudice to any other rights and remedies that EFEX may have in respect of a payment default under this Agreement.

18.5       If either Party discovers an error in an invoice, it must notify the other Party as soon as practicable (and in any event by no later than 6 months of the date of the invoice) and EFEX must endeavour to rectify any errors as soon as practicable or in its next invoice.

18.6       If a Service Schedule is terminated during the Initial Term, the balance of Monthly Term Charges for the Initial Term is due and payable by the Customer to EFEX within 30 days of the date of termination of the Service Schedule.

18.7       If an undisputed invoice or undisputed part of an invoice remains unpaid 14 days after its due date, EFEX may:

(a)          suspend the provision of any Services and/or disconnect equipment used in relation to the Services after 14 days;

(b)          invoice the Customer for any remaining Monthly Term Charges for the Initial Term which become immediately due and payable;

(c)           enter the Customer Premises to recover EFEX Equipment, EFEX Infrastructure, Supplies Infrastructure or Supplied Equipment in which title has not passed to the Customer;

(d)          remove the Customer's authority to access any premises of EFEX or Suppliers including but not limiting data centres;

(e)          require the Customer to pay a Security Deposit in order for the suspension to be lifted or supply of the Service to continue; and/or

(f)           disclose the Customer's Personal Information to debt collectors or report the default if a credit reporting body

18.8       EFEX may reconnect a suspended Service upon full payment of amounts due, applicable interest, a Security Deposit and any reasonable reconnection fee, and in such circumstances  EFEX will take steps to cease and release the Customer from any debt collection activity initiated pursuant to clause 18.7(f) and any invoice issued pursuant to clause 18.7(b).


19           Credit assessment and Security Deposit

19.1       EFEX may conduct a credit assessment of the Customer at any time. The Customer authorises EFEX to make all enquiries necessary to determine the Customer’s creditworthiness and will provide EFEX with all reasonable information and assistance necessary for the credit assessment

19.2       If EFEX considers it necessary to manage EFEX’s risk or the Customer defaults on making payment pursuant to this Agreement, EFEX may require that the Customer pay a Security Deposit as a precondition to:

(a)          accepting an Service Schedule; and/or

(b)          continuing to provide a Service in circumstances where the Customer failed to pay any undisputed Charges for a Service by the due date,

19.2       If EFEX notifies the Customer that it is required to provide a Security Deposit, the Customer must do so within 5 Business Days and EFEX has no obligation to provide the Services referred to in the notice until it has received the Security Deposit. 

19.3       EFEX may apply all or part of the Security Deposit (Deduction) at any time to any outstanding Charges that are not paid by the due date in accordance with this Agreement. The Customer must replenish the amount of any Deduction by paying that amount to EFEX, within 5 Business Days of a request to do so, and a failure to do so is a material breach of this Agreement.

20           Suppliers and third parties

20.1       No claim against Suppliers or by third parties

(a)          The Customer agrees that it must not contact Suppliers in regard to the Services or goods supplied under this Agreement and that it must not make any Claim against Suppliers or their suppliers that is related to the Services or goods supplied under this Agreement.

(b)          The Customer agrees that third parties including but not limited to the Customer’s clients and Personnel have no right to make a Claim against EFEX or Suppliers that is related to the Services or goods supplied under this Agreement.


21           Limitation of liability

21.1       To the extent permitted by law, EFEX's cumulative total liability during any calendar year in respect of all Claims in connection with this Agreement and a Service Schedule (whether based in negligence or any other tort, in contract, under statute or otherwise) will be the total sum of all Charges paid by the Customer to EFEX under the relevant Service Schedule in respect to the Services the subject of the Claim in the 12 months prior to the event giving rise to the liability.

21.2       The liability of EFEX under this Agreement will be reduced proportionately to the extent that any act or omission of the Customer or its Personnel directly contributed to the Loss or damage.

21.3       Each Party agrees to use reasonable endeavours to mitigate any Loss or damage suffered by it under or in connection with this Agreement or any Service Schedule.

21.4       To the extent permitted by law, unless expressly stated otherwise, neither Party is liable to the other Party for any Consequential Loss under or in connection with this Agreement (whether arising in negligence or any other tort, in contract, under statute or otherwise).

21.5       The Customer agrees that to the extent permitted by law, all express and implied terms, conditions and warranties (other than those in this Agreement) are excluded.

21.6       Where a Claim arises because of or in connection with a failure to achieve a Service Level, the applicable remedy in the Service Level Agreement is the Customer’s sole and exclusive remedy for such failure.

21.7       The liability of EFEX to the Customer for breach of an applicable Consumer Guarantee or other condition or warranty implied into this Agreement by legislation is limited, at the option of EFEX to:

(a)          if the breach relates to goods, replacing, repairing or supplying goods equivalent to those goods or paying the cost of replacing or repairing them or acquiring equivalent goods; or

(b)          if the breach relates to services, re-supplying, or paying the cost of re-supplying those services.


22           Representatives and dispute resolution

22.1       The Parties appoint the personnel named in the Overview Section of this Master Services Agreement as their respective initial representatives for this Agreement.  A Party may change its representative by giving the other Party notice in writing. Any replacement representative must have the authority, skills and experience necessary to perform the responsibilities set out in this clause.

22.2       Each Party’s representative must have authority and be given responsibility to:

(a)          make appropriate decisions on day to day issues in respect of this Agreement;

(b)          coordinate the technical aspects of this Agreement;

(c)           nominate a contact point in the event of emergency; and

(d)          resolve any difficulties or disputes arising under this Agreement in accordance with this clause.

22.3       Before commencing action or court proceedings, the Parties must attempt to settle any dispute that arises in relation to this Agreement by adhering to the escalation procedure set out in this clause 22.

22.4       A Party claiming that a dispute has arisen must notify the other Party in writing and the Parties' representatives will discuss and attempt to resolve the dispute within 14 days. The notice of dispute must set out reasonable particulars of the dispute.

22.5       If the Parties' representatives cannot resolve the dispute within 14 days, the dispute will be referred to the Managing Director of each Party who must attempt to resolve the dispute.

22.6       If the Managing Directors cannot resolve the dispute within 14 days of the dispute being referred to them, either Party may commence any action or court proceedings in relation to the dispute.

22.7       Nothing in this clause prevents either Party from commencing any action or proceeding at any time for urgent interlocutory relief in any court or tribunal having jurisdiction over such action or proceeding.

22.8       The Parties will continue performing their respective obligations under the Agreement (including the payment of any undisputed portion of any disputed invoice) while attempts are being made to resolve the dispute, unless and until the Agreement expires or is terminated.

22.9       In the case of a disputed portion of an invoice, once the dispute is resolved, EFEX or the Customer, as the case may be, must pay the amount agreed within 14 days of resolution of the dispute.

22.10    Each Party shall bear its own costs of complying with this clause, except insofar as a court orders costs in favour of a Party.


23           Personal Property and Securities Act

23.1       The Customer agrees that it has no interest in any property or equipment owned by EFEX or a Supplier nor any right to retain or register an interest in any EFEX or Supplier property or equipment, including Supplied Equipment while title remains with EFEX or the Supplier.

23.2       The Customer agrees that EFEX or the Supplier may register its interest in property or equipment including Supplied Equipment in which it retains title. The Customer agrees that in relation to Supplied Equipment owned by EFEX or a Supplier that EFEX or a Supplier need not comply with any provision of the PPSA and Personal Property Securities Regulations 2010 (Cth) that may be contracted out of. If EFEX registers an interest in Supplied Equipment that is in the Customer’s possession, EFEX will give notice of the registration to the Customer, remove the registration within a reasonable time once it receives payment in full for the Supplied Equipment and provide the Customer with notice of the revocation of the registration.

23.3       The Customer must if required by EFEX or a Supplier, promptly and in any event within 10 days, execute any document that in the reasonable opinion of EFEX or the Supplier is necessary for EFEX or the Supplier to register its interests under the PPSA. 

23.4       Unless with EFEX's prior written consent, the Customer must not part with possession of Supplied Equipment owned by EFEX of a Supplier or permit such Supplied Equipment to become a fixture or subject to any encumbrance, charge or loan.


24           Insurance

24.1       Each Party must have and maintain with reputable insurers public liability insurance with cover for at least $10 million per event and in annual aggregate.

24.2       Within 5 Business Days of a request, a Party must provide the other Party with certificates of currency to confirm it has the insurance required in clause 24.1 or other insurance that EFEX requires the Customer to have pursuant to a Service Contract.

24.3       If a Party (the first Party) does not have or maintain the insurance required in clause 24.1 or fails to provide certificates of currency pursuant to clause 24.2, the other Party may take out the insurance required in clause 24.1 and the cost of such will be immediately payable to other Party by the first Party.



25           General Terms

25.1       Notices

(a)          Any notice given under this Agreement must be in writing and must be signed by the Party giving the notice or any authorised representative of that Party. Communications sent by email are taken to be signed by the named sender.

(b)          Unless and until a Party provides notice of a different address or email address to the other Party to this Agreement, its address for service of notices shall be set out in the Overview Section of this Agreement.

(c)           Unless a later time is specified in a notice, the notice takes effect from the time it is received.

(d)          A notice is taken to be received:

(i)            if delivered by hand, when so delivered;

(ii)           if sent by pre-paid post to and from an address within Australia, on the fifth clear Business Day after the date of posting;

(iii)          if sent by pre-paid post to or from an address outside Australia, on the tenth clear Business Day after the date of posting;

(iv)         if sent by email when the sender receives an automated message confirming delivery, or four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that:

(A)          the email has not been delivered; or

(B)          that the recipient is “out of the office” or equivalent.

25.2       Governing law

This Agreement is governed by the Laws of New South Wales.  Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts hearing appeals from those courts.

25.3       Waiver and variation

A provision of or a right created under this Agreement may not be:

(a)          waived except in writing signed by the Party granting the waiver; or

(b)          varied except in writing signed by the Parties.

(c)           No waiver by EFEX in relation to any breach of this Agreement by the Customer will be deemed a waiver of any continuing or recurring breach.

25.4       Relationship

The Parties agree that this Agreement does not create any relationship of partnership, employment, franchise, joint venture or agency and that EFEX is an independent contractor.

25.5       Consent

Subject to an express provision to the contrary, if EFEX is called upon to give consent to anything under this Agreement, it may give its consent conditionally, unconditionally or withhold its consent.

25.6       Assignment

(a)          The Customer may not assign its rights or obligations under the Agreement without the prior consent EFEX.

(b)          EFEX may subcontract all or any of its obligations under a Service Schedule without the Customer's consent.

(c)           EFEX may assign its rights and obligations under the Agreement to a Supplier.

(d)          EFEX may assign its rights and obligations under the Agreement upon giving reasonable notice to the Customer.

25.7       Severance

(a)          If anything in this Agreement is invalid, unenforceable, illegal or void in any jurisdiction, it will have no effect in the jurisdiction and will be severed from this Agreement in that jurisdiction and the rest of this Agreement remains in force.

(b)          This clause 25.7 has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

25.8       Counterparts

25.9       The Parties may execute this Agreement in two or more counterparts and all counterparts together constitute one instrument.  Where permitted by law, counterparts may be executed electronically and by way of split execution.

25.10    Further Assurance

Each Party at its own expense, must do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including but not limited to the execution of documents and making a reasonable effort to cause relevant third parties to do likewise.

25.11    Entire agreement

The Agreement contains the whole of the agreement between the Parties in relation to its subject matter.

25.12    Remedies cumulative

The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by Law independently of this Agreement.

25.13    Acknowledgement

The Customer acknowledges that though it may have discussed the provision of services with EFEX, the Customer’s decision to enter into the Agreement is based upon its own investigations and it has not been induced to enter into this Agreement by any express or implied statement, representation, warranty or condition made by or on behalf of EFEX except to the extent set out in Agreement.


A certificate signed by any officer or manager of EEX containing statements as to an amount due by the Customer under this Agreement or a Service Schedule, the occurrence of any event or the existence of any fact, will be sufficient evidence of the amount, event or fact unless they are manifestly untrue.