/Master Services Agreement (MSA)

This MSA applies to all products and services offered by Blue Central unless a signed pre-negotiated MSA is in place.

 

1. Orders

1.1 Under this agreement, Customer may engage Blue Central to deliver service solutions, each such engagement being an Order. Multiple Orders may be on foot simultaneously.

 

2. Supply of Services

2.1 Blue Central must supply the Services to Customer in accordance with this agreement (including as recorded in the applicable Purchase Order and the Service Levels) and in any event with due care and skill and in a professional and timely manner. Any Deliverables must be of merchantable quality and fit for purpose.

2.2 Blue Central may change the Services, but only if there is no material disadvantage to Customer as a result of the change or if Customer consents to the change. To be clear, minor modifications to the Software and Hardware, such as upgrades, minor changes to functionality and major improvements to functionality are of no material disadvantage to Customer. Further to be clear, a change contemplated by this paragraph is not a contractual variation of any Order.

 

3. Customer

3.1 Customer must provide such reasonable co-operation as required to enable Blue Central to supply the Services in accordance with this agreement, including that Customer must:

(a) comply with all operational support procedures and policies as notified to Customer from time to time through the Control Panel;

(b) promptly record and report all errors and malfunctions in the Hardware using the procedures notified to Customer through the Control Panel;

(c) ensure that its employees have been trained in the operation of the Hardware in accordance with the manufacturer’s specifications; and

(d) maintain the Customer Equipment, unless maintaining the Customer Equipment is expressly included in the Services.

3.2 Customer must maintain the secrecy and confidentiality of any user ID, login and password information (Security Information) assigned to it or its nominated representatives.

3.3 Customer must, and must ensure that each User does, comply with the Acceptable Use Policy and any other Blue Central Services-related policy notified to Customer from time to time, and otherwise use the Services only for purposes that are bona fide and lawful. Customer warrants that the Services will be used solely for the purposes for which they were acquired if and as evinced to Blue Central by Customer when Blue Central accepted the corresponding Order.

3.4 Blue Central has no obligation to provide Customer with physical access to the Data Centre.

3.5 Customer warrants that if, in the course of acquiring the Services, it installs any software on or connected to any Hardware, it is lawfully entitled to use the software. 6. Customer warrants that it has sufficient bandwidth, traffic (inbound, outbound and aggregated), data storage and backup, server resources and mailboxes so as to be able to perform this agreement.

 

4. Maintenance

4.1 Blue Central must maintain and support:

(a) all Hardware; and

(b) all Hardware located at Customer’s premises, and Customer Equipment, but only if maintenance and support of them is expressly included in the Services, in accordance with industry best practice and, where applicable, manufacturer’s specifications.

4.2 When Blue Central performs scheduled regular maintenance of Hardware and the Blue Central Network, Blue Central must do so with due regard for continuity of the Services.

4.3 Blue Central may from time to time substitute, change or modify the Hardware, but must not substantially alter the technical parameters of the Services without Customer’s prior approval.

4.4 Blue Central is not obliged to maintain or support Hardware to the extent that problems arise from tampering, modification, alteration, or additions to the Hardware caused, directly or indirectly, by Customer.

 

5. Fees

5.1 Blue Central may charge the Fees to Customer, in each case the Fees having been calculated and charged:

(a) in accordance with the applicable Order;

(b) if not specified in the applicable Purchase Order – in accordance with Blue Central’s standard commercial rates prevailing at the time of supply; or

(c) if paragraphs (a) or (b) do not apply – as otherwise agreed by the parties in writing, including elsewhere in this agreement.

5.2 In respect of each Order, Blue Central may vary the Fees

(a) with at least 60 days’ notice before the then-current Order Term or Renewing Order Term expires; or

(b) if there has been no variation pursuant to paragraph (a), by an amount not exceeding the Australian weighted eight cities CPI prevailing for the preceding 12 months, with effect from the beginning of the (next) Renewing Order Term.

 

6. Payment

6.1 Subject to this clause 6, Customer must pay the Fees:

(a) in full, without set-off, adjustment or withholding;

(b) no later than when the Fees become due and payable; and

(c) in accordance with the payment method specified on the invoice or as otherwise agreed in writing.

6.2 Customer is not obliged to pay Fees unless Blue Central first sends a valid tax invoice to Customer in respect of those Fees.

6.3 The maximum frequency of invoicing and the minimum time for payment of each invoice must be:

(a) in accordance with the applicable Order;

(b) if not specified in the applicable Purchase Order – in accordance with Blue Central’s standard commercial terms and practices prevailing at the time of invoicing; or

(c) if paragraphs (a) or (b) do not apply – as otherwise agreed by the parties in writing, including elsewhere in this agreement.

6.4 Subject to clause 6.3(a), Blue Central may charge all fixed or recurring Fees in advance and must not charge variable Fees other than in arrears.

 

7. Suspension of Services

7.1 Without limiting any other provision of this agreement, Blue Central may restrict, suspend or disable the supply of Services to Customer or Users (Suspension) if:

(a) Customer fails to pay any Fees that are due and payable within 7 days of receiving a demand in writing;

(b) Customer breaches Blue Central’s Acceptable Usage Policy and fails to rectify that breach immediately upon receiving a demand in writing;

(c) it is reasonably necessary in order for Blue Central to comply with any law, direction of a Regulatory Authority, Code of Conduct or court order so requires, directly or indirectly; or

(d) Blue Central determines that it is reasonably necessary during any technical emergency, modification or maintenance activity, but only if Blue Central uses its reasonable endeavours to resume the Services as soon as practicable and, in the case of modification or unscheduled modification or maintenance activity, Blue Central has given Customer at least 30 days’ written notice.

7.2 Blue Central is not obliged to provide any refund of Fees for a period of Suspension effected pursuant to clause 7.1.

 

8. Warantees

8.1 Customer warrants that:

(a) Blue Central merely performing this agreement and otherwise following Customer’s directions and relying on information supplied by Customer to Blue Central will not cause Blue Central to act inconsistently with law;

(b) Customer does not rely on any representation from Blue Central that is not expressly contained in this agreement;

(c) any representative of Customer who signs this agreement, purports to vary this agreement or provides directions to Blue Central is authorised by Customer to do so and bind Customer under this agreement; and

(d) to the maximum extent that Customer may lawfully limit its liability to its customers for injury or death when supplying goods and services, Customer has done so and has in any event taken all insurance policies that a reasonably prudent person in Customer’s position would take.

8.2 Blue Central warrants that any representative of Blue Central who signs or purports to vary this agreement is authorised by Blue Central to do so and bind Blue Central under this agreement.

8.3 Blue Central gives no warranty that:

(a) the Services will not fail in circumstances where a third party service provider fails, including commercial infrastructure providers, such as electricity and telecommunications providers;

(b) the Services will confer on Customer any particular commercial objective, outcome or benefit;

(c) is not expressly contained in this agreement or is otherwise a Compulsory Provision; or

(d) the Services may be relied upon in circumstances affecting the health, safety or protection of persons or property.

8.4 All warranties given in this agreement that, by their nature, are capable of operating continuously, are given continuously.

 

9. Public Addressing Identifiers

9.1 Blue Central may use one or more identifiers (Identifiers) such as telephone numbers, Internet Protocol Addresses (IP Addresses) and domain names in providing Services, and may designate one or more of them for use on a temporary basis by Customer from those Identifiers allocated to Blue Central by Regulatory Authorities.

9.2 Customer acknowledges that:

(a) Blue Central does not control the allocation of Identifiers;

(b) Blue Central may be obliged to change Identifiers by a Regulatory Authority

(c) Customer does not own any right in IP Addresses supplied by Blue Central

(d) IP Addresses are designated for Customer’s use on a temporary basis only; and

(e) IP Addresses may not be portable.

9.3 Subject to clause 9.4, Blue Central may change Identifiers and IP Addresses from time to time, including at the direction of a Regulatory Authority, but only if Blue Central uses reasonable efforts to minimise the inconvenience to Customer, including by giving Customer reasonable notice of the change.

9.4 Blue Central must not, without Customer’s prior consent in writing, change any Identifier or IP Address supplied by Customer or the rights to use which are owned by Customer.

9.5 Customer acknowledges that it is bound by the justification processes imposed by Regulatory Authorities under policies for the responsible use of Identifiers and IP Addresses that may from time to time be in force.

 

10. Data

10.1 Except as expressly provided in this agreement, Blue Central acknowledges that, as between it and Customer, Blue Central does not own any rights in electronic copies of Customer Data.

10.2 Subject to the lawful exercise of a lien, Blue Central must provide Customer with reasonable access to Customer Data that is in Blue Central’s possession, custody or control.

10.3 Upon Customer’s request, but only to the extent reasonably practicable, Blue Central must deliver up to Customer all copies of Customer Data in Blue Central’s possession, custody or control. Blue Central is under no obligation to provide such copies in any particular format.

10.4 Upon Customer’s request, but subject to the payment of all Fees by Customer and only to the extent that it is reasonably practicable, lawful and does not expose Blue Central to commercial or legal risks associated with a failure to keep records, Blue Central must permanently destroy or disable access to all copies of Customer Data in Blue Central’s possession, custody or control.

10.5 Blue Central may charge Fees to Customer at standard commercial rates on a time-and-materials basis for complying with clauses 10.3-10.4.

10.6 Blue Central may, but only to the extent required (as determined by Blue Central) by any law, Regulatory Authority, Code of Conduct or court order:

(a) intercept and monitor Customer’s or Users’ use of the Services;

(b) intercept, monitor, store, inspect, make copies of and provide to any Regulatory Authority, any Data created, stored or transmitted in the course of Customer’s or Users’ use of the Services;

(c) provide information about any of these actions to any Regulatory Authority, or permit any appropriately authorised person to do so, including a Regulatory Authority.

10.7 To the extent reasonably practicable and only if permitted by law, Blue Central must provide reasonable notice to Customer prior to engaging in any activity in clause 10.6.

 

11. Privacy

11.1 Blue Central must comply with Privacy Law, including its Privacy Policy.

11.2 Subject to clauses 11.1 and 13, Blue Central may collect, use and otherwise deal with Personal Information supplied by or relating to Customer for purposes related to the supply of Services, including billing and account management and business management and product development.

 

12. Credit Information

12.1 Customer hereby consents to Blue Central acquiring information from any credit reporting agency relating to any application by Customer for credit (if any, and whether commercial or private) or relating to the collection of overdue payments from Customer, such information potentially including Personal Information and information as to commercial creditworthiness and activities.

12.2 Customer also hereby consents to Blue Central reporting to any credit reporting agency information that Customer is in default of the trading terms of this agreement or that Blue Central has engaged a collection agency in relation to Customer’s account.

12.3 If Blue Central accepts a credit application by Customer, the application becomes a schedule to this agreement.

 

13. Confidential Information

13.1 This clause 13 operates subject to clauses 10 (Data) and 12 (Credit information).

13.2 The parties acknowledge that, in the course of performing this agreement, one party (Discloser) may disclose Confidential Information to the other (Recipient). Subject to the express provisions of this agreement, a Recipient must not disclose any of Discloser’s Confidential Information to any person, or use any of Discloser’s Confidential Information for any purpose other than exercising its rights or performing its obligations under this agreement, without Discloser’s express written authorisation.

13.3 Recipient may disclose Discloser’s Confidential Information to its directors, officers, employees, contractors, sub-contractors and agents as, and only as, reasonably necessary for the purposes of Recipient’s performance of this agreement.

 

14. Intellectual Property

14.1 Customer acknowledges that, as between it and Blue Central, Customer does not own any Intellectual Property nor any other rights in Blue Central Materials.

14.2 Blue Central acknowledges that, as between it and Customer, Blue Central does not own any Intellectual Property nor any other rights in Customer Materials.

14.3 Subject to clause 14.4, Blue Central hereby grants Customer a licence to use Blue Central Materials, as required to acquire and use the Services. The licence is for each Order Term (as applicable), non-exclusive, world-wide, royalty free, non-transferable and non-sublicensable other than to Customer’s Related Bodies Corporate. In relation to Deliverables that are Blue Central Materials, the licence is for the life of the Deliverable.

14.4 Except as permitted under Part III Division 4A of the Copyright Act 1968 (Cth), Customer must not, directly or indirectly:

(a) copy the Software, except as necessary to install it on Hardware or Customer Equipment and for internal purposes. In the event Customer makes authorised copies of the Software, Customer must reproduce all notices on such copies indicating the owner or licensor of the Software;

(b) sell, lease, license, transfer, give possession of or sub-license the Software to third parties; or

(c) write or develop any derivative or other software programs based, in whole or in part, upon the Software.

14.5 Customer hereby grants Blue Central a licence to use Customer Materials as required for Blue Central to supply the Services. The licence is for each Order Term (as applicable), non-exclusive, world-wide, royalty free, non-transferable and non-sublicensable other than to Blue Central’s Related Bodies Corporate and sub-contractors.

14.6 Each party warrants to the other that it owns all rights or has obtained all authorisations required in order for it to validly and lawfully grant the licences granted in this clause 14 and that the other party’s exercise of its rights under the licence will not infringe the Intellectual Property or other related rights of a third party.

 

15. Indemnity

15.1 Blue Central indemnifies Customer against any loss suffered by Customer as a result of any breach of this agreement (including its warranties) by Blue Central or any other unlawful conduct engaged in by Blue Central in relation to the performance of its obligations under this agreement, including where such loss arises from legal action brought against Customer by a third party or brought by Customer against a third party.

15.2 Customer indemnifies Blue Central against any loss suffered by Blue Central as a result of any breach of this agreement (including its warranties) by Customer or any other unlawful conduct engaged in by Customer in relation to the acquisition or use of the Services, including where such loss arises from legal action brought against Blue Central by a third party, including a regulator, or brought by Blue Central against a third party.

15.3 Clauses 15.1-15.2 do not apply to the extent that the loss suffered was caused or contributed to by the party who suffered the loss.

15.4 This clause 15 operates subject to clause 16.

 

16. Liability

16.1 Subject to clauses 16.3, the liability of each party to the other is limited to:

(a) direct loss, damage, costs, expenses or liabilities, including legal costs but excluding loss of profits, loss caused by loss of data, mere business disruption and (other) special, indirect, incidental or consequential loss;

(b) the extent to which the other party did not cause the liability to arise by reason of its own negligence, breach of contract or other unlawful conduct;

(c) the amount of fees paid or payable by Customer to Blue Central under this agreement during the first 12 months of this agreement or, if the agreement commenced more than 12 months ago, during the 12 months immediately preceding the date that the claim arose;

(d) in relation to Blue Central’s liability to Customer, Blue Central, at its election supplying the Services again or paying the cost of having the Services supplied again and, in relation to goods, repairing or replacing the goods or paying the cost of having them repaired or replaced;

(e) in relation to Blue Central’s liability for any failure to meet Service Levels for which a credit or rebate is specified for in the Service Levels, the credits or rebates as specified; and

(f) in relation to Blue Central’s liability for loss of Customer Data when Customer Data backup is included in the Services, Blue Central restoring the Customer Data to the most recent backup version of the data (otherwise liability is excluded altogether).

16.2 The limitations provided for in clause 16.1 are to be read cumulatively and so as to arrive at the lowest liability.

16.3 Liability caused by or arising in relation to personal injury or death is unlimited.

 

17. Force Majeure

17.1 If Force Majeure prevents or delays any party from performing any obligations under this agreement (except the payment of money), provided that the affected party uses its reasonable endeavours to mitigate the effects of the Force Majeure, that obligation is suspended as long as the Force Majeure continues.

17.2 If the Force Majeure continues for a period of 3 months or more, the unaffected party may terminate this agreement immediately by notice in writing to the affected party.

 

18. Term & Termination

18.1 Subject to this clause 18, the term of this agreement is the period of the Agreement Term commencing on the date this agreement is formed. Note: See clause 21 (Formation).

18.2 Unless Customer gives at least 30 days’ notice of termination prior to the expiration of the Agreement Term, this agreement renews automatically for 12 months on the same terms as this agreement and any reference in this agreement to the ‘Agreement Term’ includes a reference to any renewing term as if it were the Agreement Term. If Customer does give notice, the agreement terminates when the Agreement Term expires.

18.3 Subject to this clause 18 and clause 19.1, the term of each Order is the Order Term commencing on the date of that the Order is formed. Note: See clause 21 (Formation).

18.4 Unless Customer gives at least 30 days’ notice of termination prior to the expiration of the Order Term, the Order renews automatically for the Renewing Order Term on the same terms as the Order and any reference in this agreement to the ‘Order Term’ includes a reference to any Renewing Order Term as if it were the Order Term. If Customer does give notice, the Order terminates when the Order Term expires.

18.5 Either party may terminate this agreement or an Order with immediate effect by giving notice to the other party if:

(a) the other party commits a material breach of this agreement or the relevant Order and the breach is incapable of being remedied; or

(b) the other party commits a material breach of this agreement or the relevant Order, the breach has not been remedied and at least 30 days have elapsed since the terminating party gave notice to the other party of the breach; or

(c) the other party goes into administration or liquidation either compulsorily or voluntarily (save for the purpose of reconstruction or amalgamation) or if a receiver is appointed in respect of assets or if either party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things.

18.6 For the purposes of 18.5, a failure to meet Service Levels is not a material breach of this agreement or the relevant Order unless the failure is ongoing or recurring for at least 3 consecutive months.

18.7 Blue Central may terminate this Agreement or the relevant Order with immediate effect if a Regulatory Authority directs Blue Central to do so or Blue Central determines that it is reasonably necessary in order to comply with any law. Blue Central must use reasonable endeavours to give Customer reasonable notice of the termination and to assist Customer to identify suppliers of like services on reasonable commercial terms, including suppliers related to Blue Central (if any).

 

19. Consequences of Termination

19.1 An Order may terminate without terminating this agreement.

19.2 Terminating this agreement automatically terminates all Orders on foot at the time of termination of this agreement, unless the termination of this agreement occurs as a function of Customer entering into a new master services agreement, in which case each on-foot Order will not terminate, will instead become an Order under the new master services agreement and, as such, will be taken to have been varied.

19.3 Upon termination of this agreement or an Order, Blue Central may cease supplying the (relevant) Services and must (subject to clauses if applicable) permit Customer to retrieve all Customer Equipment in Blue Central’s possession.

19.4 Upon termination of this agreement or an Order, Customer must immediately cease using the (relevant) Software and Hardware supplied by Blue Central and return any such Software (copies of it) and Hardware as Customer has in its possession, and destroy or permanently disable access to any copies of Software that it is impracticable for Customer to return to Blue Central.

19.5 Upon termination of this agreement or an Order, the parties will return to each other all materials embodying the (relevant) Confidential Information of the other party. If it is impracticable for a party to return the Confidential Information, that party must destroy or permanently disable access to all materials embodying the Confidential Information.

19.6 Customer acknowledges that, upon termination of this agreement or an Order, it has no right to use (relevant) Identifiers and IP Addresses assigned to it under this agreement or the Order and that Blue Central bears no liability in relation to any change in Identifiers and IP Addresses required by Customer. Blue Central must provide reasonable assistance and must not withhold information required by Customer in transferring Identifies or IP Addresses owned by Customer.

19.7 If Customer terminates this agreement or an Order pursuant to clause 18.5:

(a) if there were Services supplied for which Customer had not paid as at the date of termination, Blue Central may invoice Customer for those Services actually supplied up to the date of termination, and Customer must pay that invoice in accordance with this agreement; or

(b) if there were Services yet to be supplied as at the date of termination for which Customer had already paid, Blue Central must refund to Customer an amount reflecting the payment for Services not supplied.

19.8 If Blue Central terminates this agreement or an Order pursuant to clauses 18.5 or 18.7 or at common law, Blue Central is entitled to payment of all Fees for Services comprising supply of and access to Software and Hardware for the duration of the relevant Order Term. If Customer has not yet paid those Fees as at the date of termination, Blue Central may invoice Customer those Fees and Customer must pay that invoice in accordance with this agreement. If Customer has already paid those Fees as at the date of termination, Blue Central is under no obligation to refund any of them.

19.9 If Blue Central terminates this agreement or an Order pursuant to clauses 18.5 or 18.7, Blue Central is entitled to all Fees for Services other than those specified in clause 19.8 up to the date of termination. If Customer has not yet paid those Fees as at the date of termination, Blue Central may invoice Customer those Fees and Customer must pay that invoice in accordance with this agreement. If Customer has already paid those Fees beyond the Services provided to the date of termination, Blue Central must refund to Customer an amount reflecting the payment for Services not supplied.

 

20. Notices

20.1 A party may serve notice on the other party by the following methods and with the following time for effect:

(a) by email with effect from the date and time of sending plus 2 hours;

(b) by fax with effect from the date and time recording on the outgoing fax confirmation message plus 2 hours;

(c) by registered or Express Post with effect from the date that delivery is recorded by Australia Post; and

(d) by courier or hand with effect from the date that delivery is accepted,

(e) in each case being to the address specified in the contract details schedule, and in the case of a notice issued by Blue Central:

(f) by posting the notice on Customer’s Control Panel, with effect from the date of posting.

20.2 In this agreement, a reference to the giving of notice is a reference to the giving of notice in advance and in writing in accordance with this clause 20.

 

21. Formation

21.1 Subject to clause 21.2, this agreement is formed when:

(a) the last of the parties to sign this document, signs it; or

(b) the first Order is formed pursuant to clause 21.3.

21.2 If, by informal agreement, the parties have commenced performing this agreement prior to the signing of this document, then this agreement is formed when the first party to commence performing this agreement, commences performing it.

21.3 An Order is formed when:

(a) Blue Central provides to Customer a Purchase Order by way of offer to supply services and Customer accepts that Purchase Order in writing; or

(b) Customer provides to Blue Central a Purchase Order by way of offer to acquire services and Blue Central accepts that Purchase Order in writing. Acceptance in writing may include an automated electronic message appearing on an automated electronic system by which Customer may place Purchase Orders.

21.4 Insofar as documents are signed in the formation of this agreement, they may be signed as counterparts which, together, constitute one document.

 

22. Terms

22.1 Once formed, the terms of this agreement are those recorded in:

(a) this document;

(b) each Purchase Order; and

(c) any schedules to this document, (together, the Agreement Documents).

22.2 The terms of each Order are the terms recorded in this document and the corresponding Purchase Order.

22.3 The Agreement Documents embody all the express terms of this agreement; and supersede or exclude all other agreements, arrangements, understandings and representations, written or oral, in relation to the Services and any similar services.

22.4 To the extent there is any irreconcilable inconsistency between the Agreement Documents, the following order of precedence will apply to reconciling the inconsistency:

(a) any terms described as ‘special conditions’ in this document or schedule;

(b) the applicable Purchase Order;

(c) any schedules to the Purchase Order, in order of appearance

(d) any schedules to this document. In order of appearance; and

(e) this document.

 

23. Consumer Rights

23.1 Blue Central acknowledges that:

(a) by operation of law, there are certain consumer guarantees and certain agreements may contain certain terms, conditions, warranties or liabilities whether by implication or otherwise (Consumer Rights); and

(b) by operation of law, Consumer Rights cannot or must not be excluded, modified or limited.
23.2 Notwithstanding anything else in this agreement, except the limitation of liability in clause (d), this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.

 

24. Severability

24.1 To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including in relation to Consumer Rights), those provisions are to be treated as excised from this agreement and the other provisions of this agreement remain valid and enforceable.

 

25. Variation

25.1 Subject to the express terms of this agreement, the parties may vary this agreement only as mutually agreed in writing.

25.2 Blue Central may from time to time vary the Privacy Policy, Acceptable Use Policy or any other Blue Central policy that is a schedule to this agreement.

 

26. Waiver

26.1 The failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not constitute a waiver of the relevant right, action or remedy.

 

27. Further Assurances

27.1 The parties must do all things, including executing documents, in order to give full effect to this agreement and not prevent another party from performing this agreement.

 

28. Assignment & Novation

28.1 Either party may assign its rights under this agreement by giving notice to the other party.

28.2 Neither may novate its rights and obligations under this agreement without the written consent of the other party, which must not be unreasonably withheld. To be clear, it would be unreasonable for a party to withhold that consent if:

(a) the other party’s desire to novate this agreement arises merely in the event of a transfer of the party’s assets to an actual or future Related Body Corporate or to a purchaser of the assets who intends to carry on that party’s business; and

(b) there is no reasonable basis to believe that the continuing party would be materially adversely affected by the novation.

 

29. Survival

29.1 The following matters survive the termination of this agreement or an Order:

(a) clauses 6, 8, 10-16 and 19;

(b) in any event, all rights and obligations that are accrued or by their nature are intended to survive; and

(c) all provisions incidental to and necessary to the interpretation and enforcement of the surviving provisions.

 

30. Governing Law

30.1 This agreement is governed by the laws in effect in the state of New South Wales, and the parties submit exclusively to the jurisdiction of the courts of NSW and the NSW registry of the Federal Court of Australia for the resolution of all disputes arising in any way in connection with this agreement.

 

31. Definitions

Acceptable Usage Policy means Blue Central’s policy presently published at URL http://www.BlueCentral.com/Acceptable-Usage-Policy and any successor policy. The Acceptable Usage Policy is a schedule to this agreement.

Agreement Term means the term specified in the contract details schedule.

Blue Central means BlueCentral Pty Limited.

Blue Central Materials includes the Software and all copies of it and any Deliverables comprising subject-matter in which Intellectual Property subsists.

Business Hours means the hours between 9 am and 5 pm Australian Eastern Standard time (AEST) on normal business days.

Code of Conduct means a code of conduct or code of practice established under Schedule 5 and Schedule 7 of the Broadcasting Services Act 1992 (Cth), and the Interactive Gambling Act 2001 (Cth).

Confidential Information means any discovery, fact, data (including Customer Data), idea, plan, strategy, method, principle, technique, routine, practice, knowledge, design, trade secret, know-how, information, customer information, Personal Information, product specification, business proposal or marketing plan, that is not presently widely known or available to the public and that is held by Blue Central or Customer or generated by Blue Central or Customer in the course of the performance of this agreement.

Control Panel means an online interface on the Blue Central website that enables Customer to access tools and modules for monitoring, managing and maintaining various functions of hosted websites such as user accounts, file managers, server logs, databases and other analytical tools.

Customer means the party specified as Customer in the contract details schedule.

Customer Data means data supplied to Blue Central, directly or indirectly, by Customer, Users or Customer’s suppliers, customers and users.

Customer Equipment means hardware and copies of software owned or supplied by Customer.

Customer Materials means any materials owned or supplied by Customer under this agreement.

Data Centre means any secure facility (whether maintained by a third party or by Blue Central) for housing Hardware for purposes of supplying Services.

Deliverable means actual work product produced by Blue Central and supplied to Customer for Customer to use.

Fees means all fees, charges, costs and expenses that Blue Central may lawfully charge Customer under this agreement.

Force Majeure means any event or circumstance outside a party’s reasonable control that has not been caused or materially contributed to by that party, including an act of God, acts of war, natural disasters, utility failures, virus attacks or hackers, failure of third party software (including ecommerce software, payment gateways, chat, statistics or free scripts) and the like.

Hardware means equipment used in internet connectivity services, including computer racks, terminals and associated equipment and owned or operated by Blue Central.

Intellectual Property means all copyright, trade marks, patents and designs, present and future, whether registered or not.

Order has the meaning set out in clause 1.1.

Order Term means the term of the Order as specified in the corresponding Purchase Order, commencing from the date that the Order is formed, unless agreed otherwise in writing. If the Order comprises only Services that are not by their nature capable of ongoing supply (eg Deliverables) and no Order Term is specified in the corresponding Purchase Order, the Order Term is to the time when all of the Services under the Order have been supplied.

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

Privacy Law means the Privacy Act 1988 (Cth) and any other law, statute or code in Australia that regulates the dissemination and use of information about or concerning an individual.

Privacy Policy means the privacy policy presently published at URL http://www.BlueCentral.com/Privacy-Policy and any successor policy. The Privacy Policy is a schedule to this agreement.

Purchase Order means one or more documents recording terms of an Order (or, prior to acceptance, a proposed Order). The documents may be in any form acceptable to Blue Central, including documents generated by an automated electronic system by which Customer may place Purchase Orders.

Regulatory Authority means any Australian Commonwealth or State government or statutory authority, including police, the ACMA, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman, the Internet Industry Association, the Asia Pacific Network Information Centre, authorised domain name registrars, and any other competent government or statutory body or authority having authority to direct Blue Central.

Renewing Order Term means, in relation to an Order, the renewing term specified in the corresponding Purchase Order. If no term is specified, it means 12 months.

Services means the services and Deliverables (if any) described in this agreement generally and only to the extent that they are expressed to be included in an Order, and any services that Blue Central supplies to Customer by agreement (express or implied), such as services incidental to the supply of the Services.

Service Levels means measurable service levels and solutions (if any) in specified in a Purchase Order.

User means any person or entity authorised by Customer to access or use the Services, and includes any person accessing any Customer website.

31.1 Some terms are defined elsewhere in this agreement.

 

32. Interpretation

32.1 In this agreement, unless expressly to the contrary and as appropriate in the context:

(a) an expression in the plural may be read in the singular, and vice versa;

(b) cognates defined terms have the same meaning as the defined term;

(c) a reference to a ‘month’ is a reference to a calendar month;

(d) a references to currency or an amount of money are in Australian Dollars;

(e) a reference to ‘termination’ of this agreement includes termination by expiry;

(f) a reference to the payment of money being ‘due and payable’ means that the date by which payment must be made has arrived or passed;

(g) in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation survives only to the extent that that state of affairs exists during the Term;

(h) a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; however, nothing in this paragraph means that partial performance of an obligation constitutes complete performance of the obligation;

(i) a reference to a right or remedy of a party is without limitation to any other right or remedy that party may have at law or in equity;

(j) a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation;

(k) a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;

(l) a reference to one alternative does not, of itself, exclude any other alternative;

(m) the word ‘including’ implies without limitation;

(n) a list of rights is not to be read as an exhaustive list of rights;

(o) an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party;

(p) an expression prohibiting the doing of an act includes the prohibiting of offering, attempting or purporting to do the act, or aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act;

(q) an expression of ownership includes the legal or beneficial ownership;

(r) a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer;

(s) a reference to an indemnity is a reference to compensation for loss, not prevention of loss;

(t) no rule of construction applies to the disadvantage of the party who drafted the document merely because they drafted the document;

(u) a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;

(v) a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and

(w) a reference to a provision, clause, paragraph, schedule and the like is a reference to a provision, clause, paragraph, schedule and the like of this agreement.

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