Terms and Conditions

2.1 Definitions

In these terms and conditions unless the context otherwise requires, the following words and expressions shall have the following meanings:

“Agreement” means, collectively, the contract formed by a Service Order, Statement of Work or other addenda, executed by both parties, which incorporates the terms and conditions of this Master Services Agreement;

“Assumption or Assumptions” means any assumption or assumptions (by whatever name called) which Genisys has made in calculating the Charges and which is stated in the Service Order, Statement of Work or elsewhere in the Agreement;

“Business Day” means Monday through to Friday, between the Business Hours, excluding public holidays in Sydney, New South Wales or Melbourne Victoria;

“Business Hours” means 08:30am to 5:30pm AEST on a Business Day;

“Change” means any variation to all or part of the Service Order and/or Statement of Work;

“Charges” or “Fees” or “Price” means the amounts payable by the Customer for the Product, Services, Professional Services and/or Deliverables under the applicable Service Order and/or Statement of Work, with any other amounts which are payable by Customer to Genisys under the Agreement;

“Claims” means all claims, demands, suits, actions and other proceedings of any kind, whether arising under contract (including under any warranty or indemnity), in equity, in restitution, in negligence or any other tort, under strict liability, under statute, or otherwise at all;

“Commencement Date” means, in the case of this Master Services Agreement, the commencement date outlined in Schedule 1 – Executive Summary, and, in the case of a Service Order or Statement of Work, the commencement date outlined in that Service Order or Statement of Work;

“Confidential Information” means:

a) the terms of the Agreement, including information submitted or disclosed by either party during negotiations, discussions and meetings relating to the Agreement;

b) information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and

c) all other information belonging or relating to a Disclosing Party, which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any related entity of that Disclosing Party;

d) Information shall not be considered to be Confidential Information if it:

e) is already or otherwise becomes publicly known through no wrongful act of the Receiving Party; or

f) is compelled to be disclosed by law.

“Customer” means the person, firm, company, Government body or other entity who purchases Products, Services, Professional Services and/or Deliverables from Genisys;

“Customer Data” means all Data generated, processed, transmitted or stored by the Customer

or an End User by using the Services and includes:

(a) any database in which such Data is contained;

(b) the work product resulting from the use or manipulation of such Data;

(c) Data entered into or generated, processed, transmitted or stored by any Customer or End User hardware or software; and

(d) any copies of the above;

“Customer Obligation” means any obligation of the Customer stated in the Service Order, Statement of Work or elsewhere in the Agreement;

“Data” means data and information;

“Deliverables” means all materials created by Genisys specifically for the Customer as specified in a Service Order or Statement of Work, including, without limitation, data, diagrams, reports and specifications;

“Effective Date” means the effective date of an Agreement, being the date by which both parties have executed all executable documents comprising the Agreement;

“End User” means any person (including a Related Body Corporate of the Customer) whom the Customer permits to use the Services and/or Products in accordance with this Master Agreement and any Agreement;

“Exclusion” means any item identified in the Service Order, Statement of Work or elsewhere in the Agreement as (i) not available from Genisys; or (ii) available from Genisys for an additional Charge;

“Fixed Term Services” means any Service specified in the Service Order or Statement of Work to be provided by Genisys to the Customer for the specified Term or Initial Term, including any Renewal Term;

“Genisys Property” means all property (including the Services) in which Genisys has an interest under this Agreement or a Security Interest for the purposes of the PPS Law;

“Genisys” or “Genisys Australia” means Genisys Group Pty Ltd (ACN: 096 660 534), an Australian corporation and member of the Genisys Group with registered office at Unit 4, 9 Fitzpatrick Street Revesby NSW 2212;

“GST” means any goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended, renamed or replaced from time to time.

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Hardware” means any equipment specified in the Service Order or Statement of Work to be provided by Genisys to the Customer;

“Law” means principles of law or equity established by decisions of courts, statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law;

“Genisys Group” means Genisys and all related bodies corporate as defined in section 9 of the Corporations Act 2001;

“Maintenance” means maintenance services described in a quotation for Product or a Statement of Work which shall include (a) Manufacturer’s Maintenance Services and (b) that maintenance forming part of the Support Services;

“Manufacturer” means the manufacturer of the Product;

“Manufacturer’s Maintenance Services” means any maintenance services which, although ordered from Genisys, are purchased from and supplied by the Manufacturer in respect of Product;

“Manufacturer’s Terms” means the Manufacturer’s standard warranty, Software licensing and/or service terms applicable to the Product and/or Manufacturer’s Maintenance Services, as may be packaged with the Product, set out on the Manufacturer’s website, or otherwise provided by the Manufacturer;

“Master Services Agreement” or “MSA” means these terms and conditions and shall include, without limitation, the Schedules 1 to 4.

“Personal Information” means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either Party deals within connection with performing its obligations under the Agreement;

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

“PPS Law” means the PPSA and any amendment made at any time to any other Law as a consequence of the PPSA;

“Pre-existing Materials” means materials which existed before the commencement of the Services;

“Pre-paid Services“, means Fixed Term Services which are payable in advance for the full term of the Service;

“Premises” or “Site” means the premises to which the Product is to be delivered and/or at which Services are to be performed, as specified in the Service Order or Statement of Work;

“Privacy Laws” means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of personal information (including health information) which is applicable to a party in the performance of its obligations under this document, including without limitation any codes, principles or guidelines contained in or arising out of such legislation and includes the Privacy Act (including the National Privacy Principles or Australian Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the Parties and which relates to the protection of Personal Information as amended from time to time;

“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time;

“Privacy Policy” means the Privacy Policy set out in Schedule 5;

“Product” means any Hardware and/or Software (including any associated Maintenance) that Genisys is to supply to the Customer in accordance with this Agreement.

“Product Terms” or “Service Description(s)” means additional terms and conditions incorporated in a Service Order which contain Service or Product specific obligations;

“Professional Services” means services to be undertaken by Genisys under a Service Order or Statement of Work;

“Quote” means a written statement (including without limitation any attachments) of offer for the provision of Products, Services, Professional Services and/or Deliverables between Genisys and the Customer;

“Recurring Services” means Services which are provided on an on-going basis;

“Renewal Term” means a fixed term extension of the Term set out in the MSA or the Service Order as the case may be.

“Security Interest” has the meaning given to that term in section 12 of the PPSA;

“Sensitive Information” means ‘Sensitive Information’ as defined in the Privacy Act;

“Service Level” means a measure of the standard or quality to which a service is performed, including:

a) the time taken to initiate or complete performance of the service;

b) the accuracy, quality and completeness of the results of performing a service;

c) the time taken for an end-user to process a transaction using any computer hardware or computer software which is the subject of the service; and

d) the availability, reliability or functionality of computer hardware or computer software resulting from the performance of the service.

“Service Level Agreement” or “SLA” means the document or documents contained in an MSA, Service Order or Statement of Work which define the Service Levels in accordance with which the Services must be performed, including the document set out in Schedule 4;

“Service Order” or “Order Form” means the document describing the Products, Services, Professional Services and/or Deliverables the Customer is purchasing, including any online order, process, API, or tool through which the Customer requests Products, Services, Professional Services and/or Deliverables and includes any Service Descriptions that are applicable;

“Services” means the information technology services, management consultancy services, and other services provided by Genisys to the Customer and includes any Support Services specified in the Service Order or Statement of Work provided to the Customer in accordance with the Agreement;

“Software” means any operating system or other software, including Third Party Software, installed on the Product or otherwise supplied by Genisys and/or specified in the Service Order or Statement of Work;

“Statement of Work” or “SOW” means a written statement or such other document as between Genisys and the Customer (including without limitation any attachments) for the provision of Products, Services, Professional Services and/or Deliverables;

“Support Services” means the maintenance and support services specified in the Service Order or Statement of Work;

“Term” means the minimum service period applicable to Services as specified in the MSA or the relevant Service Order or Statement of Work as the case may be and is defined as the period between the Commencement Date and the Termination Date.

“Termination Charges” or “Cancellation Charges” means:

a) the full Charges for all delivered Products, Services and/or Deliverables;

b) the full Charges for undelivered Product & Manufacturer’s Maintenance Service orders which cannot be cancelled with the Manufacturer;

c) the cancellation charges for undelivered Product & Manufacturer’s Maintenance Service orders which can be cancelled with the Manufacturer;

d) the full Charges, for the full term, of Fixed Term Services;

e) the Charges for Recurring Services equal to the monthly recurring Fee times the number of months remaining in the then current term of the Service Order for the Services that have been terminated;

f) any other termination or cancellation fees set out in the Service Order or the Agreement; and

g) all other costs, losses and expenses reasonably incurred by Genisys as a consequence of such termination including Unavoidable Costs.

“Termination Date” means the date being the date of expiry of the Term of the MSA, Service Order or Statement of Work as the case may be.

“Third Party Software” means Software that is not proprietary to Genisys and which is installed on the Product or otherwise supplied by Genisys;

“Transaction” means any transaction contemplated by or in connection with this Agreement;

“Unavoidable Costs” means.

a) any costs incurred by Genisys, in connection with the performance of its obligations under this Agreement or any agreement with any third party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to Genisys’ other operations or business activities;

b) the costs of any redeployment or termination of employment of Genisys’ personnel engaged for the purposes of providing the Services; and

c) the costs identified by Genisys for any capital purchases made in connection with the Services.

2.2 Interpretations

In this Agreement unless the context otherwise requires:

a) the singular includes the plural and vice versa;

b) the headings are used for convenience only and do not affect the interpretation of this Agreement;

c) other grammatical forms of defined words or expressions have corresponding meanings;

d) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;

e) the word “month” means calendar month and the word “year” means 12 months;

f) the words “in writing” include any form of communication capable of being read by the recipient;

g) a reference to a thing includes a part of that thing;

h) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;

i) wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”; and

j) money amounts are stated in Australian currency unless otherwise specified.