Master Services Agreement

1.      Introduction

1.1.   This Master Services and Development Agreement (MSA) is made between Appetiser Pty Ltd (ACN 615 087 940) of 9/83-87 Dover Street, Cremorne, Victoria (Appetiser, we, us or our) and the person or entity specified in the Engagement Letter (you or your). You acknowledge that you have read and agree to the Engagement Letter and the terms contained herein, and agree to be bound by them.

1.2.   Appetiser is a provider of digital marketing and content marketing services, e-commerce and data analytics solutions and mobile application and website development services. 

1.3.   You agree to engage our Services for use in your business in accordance with the terms and conditions of this MSA and the Engagement Letter. In the event of any inconsistency between this MSA and the Engagement Letter, the Engagement Letter shall take precedence.

2.      Term

This MSA commences on the date Appetiser commenced providing the Services to you accordance with the Engagement Letter (Commencement Date) and continues to apply until terminated in accordance with this MSA (Term).

3.       Your obligations

3.1.   You must: (a) provide us with all necessary cooperation in relation to this MSA and the Engagement Letter, and  all necessary access to your premises, personnel, resources, information, computer systems (including, without limitation, web hosting platforms and e-commerce systems, website, content management system, social media accounts and Google accounts) and Your Material as may be required by us, in order to provide the Services. Appetiser relies on you to provide accurate, complete and up-to-date information at all times; (b) comply with the terms and conditions of this MSA; and (c) obtain and maintain all equipment, hardware and software required by you to use and/or access the Services.

3.2.   Appetiser will not be liable for any interruptions or delays in providing the Services resulting from you or your Personnel’s act or omission, failure to fulfil any of your obligations under this MSA, the Engagement Letter or any subsequent Project Plans. We reserve the right to invoice you for any additional costs incurred by us as a result of such interruptions or delays.

4.      Project Budget

4.1.   During the Term, Appetiser will review and analysis Your Materials and will create and develop a written proposal (Project Plan) setting out the Services to be provided and the Deliverables (if any) to be delivered and the corresponding budget (on a time and materials basis) to provide these Services and Deliverables (if any) each month (Project Budget) for your approval.

4.2.   You must review and approve the Project Plan (including Project Budget) in writing. Once the parties agree in writing to the Project Plan and corresponding Project Budget, Appetiser will commence providing the Services each month in accordance with the Project Plan and corresponding Project Budget.

4.3.   Project Budgets are an estimate only of the cost (on a time and material basis) of providing the Services each month. Appetiser will use reasonable endeavours to request your written approval prior to exceeding the Project Budget. If you fail to respond within 5 Business Days to approve or reject Appetiser’s request to increase the Project Budget, the increased Project Budget is deemed to be approved by you. Any portion of the Project Budget not used in a particular month can be converted to a service credit that can be applied to the next month’s Project Budget.

4.4.   The Project Budget excludes out of pocket expenses incurred by Appetiser in performing the Services and delivering the Deliverables (if any), which are payable in addition.

5.      Restrictions

5.1.   You must not: (a) introduce, access, store, distribute or transmit any viruses, trojan or other malicious code into our Services, telecommunication, and computer systems; (b) violate our intellectual property rights; (c) modify, alter, adapt, reverse compile, disassemble, reverse engineer any of the Services (and the intellectual property rights contained therein); (d) learn the source code or algorithms underlying the Services; or (e) engage in any activity or conduct that is in breach of any laws.

5.2.   We do not make no representations, warranty or guarantee in relation to the availability, continuity, reliability, currency or security of the Services and the Deliverables (if any) (or any Third Party Products and Services provided in connection with the Services or Deliverables).

5.3.   Appetiser will not be liable if the Services are unavailable for any reason, including as a result of: (a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault; (b) negligence, malicious, or willful acts or omissions by us or third parties (including any service providers who is not party to this MSA); (c) any maintenance carried out by us or any third party service provider; or (d) a Force Majeure Event.

6.       Advertising Services

6.1.  If you engage Appetiser to provide Advertising Services, we will use reasonable endeavours to provide Advertising Services substantially in accordance with the relevant Project Plan.  

6.2.  You are responsible for reviewing and approving all Deliverables prior to publication. Approval for the publishing of the Deliverables must be provided in writing. In the event that Deliverables are made available to you for approval and you fail to respond within 5 Business Days to approve or reject the Deliverables, the Deliverables are deemed to be approved by you. Appetiser will not accept any responsibility for errors found once the Deliverables have been published or approved by you.

7.      App Development Services

7.1.   If you engage Appetiser to provide App Development Services, Appetiser will use reasonable endeavors to design, build, supply, deliver, configure, implement, integrate, transition and test the Deliverables and provide the Services substantially in accordance with the relevant Project Plan.

7.2.   You may satisfy yourself that the functionality of the App meets your technical specifications and other specified requirements by undertaking acceptance testing of eachelement of the Deliverables (Acceptance Testing).   

7.3.   If you wish to undertake Acceptance Testing of each element of the Deliverables, you must: (a) develop a written test plan for the Acceptance Testing (Test Plan) and undertake Acceptance Testing in accordance with your Test Plan; and (b) prepare and supply all relevant facilities, personnel, resources and equipment required for the Acceptance Testing in accordance with the relevant Test Plan.  

7.4.   If you do not commence Acceptance Testing within 5 days of the Deliverables being made available, you are deemed to have accepted the Deliverables.

7.5.   If the Deliverables fail to pass the Acceptance Testing, Appetiser may within 30 days of written notification from you: (a) remedy the failure so that the Deliverables pass the Acceptance Testing; and/or (b) use reasonable endeavours to repeat the Acceptance Testing until the Deliverables pass the tests or develop a work around reasonably acceptable to you.

7.6.   The Deliverables will be deemed to be accepted by you on the earlier of: (a) you confirming in writing that the Deliverables have passed the Accepting Testing; or (b) productive use in a live environment by you of the Deliverables (Accepted).

7.7.   Appetiser shall, at its own cost, investigate and remedy any defects or faults in the Deliverables that are notified by you to Appetiser within 5 days of the Deliverables been Accepted (or deemed Accepted) by you in accordance with this clause (Warranty Period).

8.       Variations and cancellations

8.1.   You may, at any time during the Term, request in writing that Appetiser vary or cancel any or all of the current Services or Deliverables as specified in the Project Plan (including Project Budget) by providing us with 7 days’ written notice.

8.2.  Appetiser will consider any request to vary or cancel any or all of the current Services or Deliverables within a reasonable period of such request and Appetiser will notify you within a reasonable period whether Appetiser: (a) agrees to vary or cancel any or all of the current Services and Deliverables and the cost to vary or cancel any or all the current Services or Deliverables (including Project Budget); or (b) does not agree to vary or cancel any or all of the current Services or Deliverables.

8.3.  If Appetiser has agreed to vary or cancel the current Services or Deliverables, the Appetiser will update the Project Plan and corresponding Project Budget to reflect the agreed variation or cancellation of the current Services or Deliverables.

9.       Our obligations

9.1.  During the Term, Appetiser agrees to use reasonable endeavors agrees to provide you withthe Services and Deliverables (if any) in accordance with the relevant Project Plan. Unless otherwise stipulated in a relevant Project Plan, the Services and Deliverable (if any) are not subject to any specific delivery times or milestones dates, and any delivery times or milestone dates given are estimates only and not binding on Appetiser.    

9.2.   Clause 9.1 shall not apply in the event of: (a) any non-conformance which is caused, or contributed to, by use of the Services or the Deliverables contrary to our instructions; or (b) modification or alteration of the Services or Deliverables (if any) by any party other than us.

9.3.   Appetiser will, at its expense, use reasonable endeavors to correct any such non-conformance affecting the Services or Deliverables (if any). Such correction or substitution constitutes your sole and exclusive remedy for any breach of clause 9.1.

9.4.   To the maximum extent permitted by law, Appetiser: (a) does not warrant that your access and use of the Services and the Deliverables will be uninterrupted, virus-free, nor that the Services or the Deliverables will meet your requirements; (b) does not warrant that the Services or the Deliverables will be free from external intruders, unauthorised viruses or worm dissemination; (c) is not responsible for any delays, failures or any other loss or damage resulting from the transfer of data over communications networks and facilities; and (d) does not warrant or guarantee that the use of the Services and the Deliverables will improve the performance for your business, or result in increased sales or revenue during any particular year.

9.5.   The Services and the Deliverables are provided to you on a non-exclusive basis.

10.    Payment

10.1. The fees payable for each of the Services and the Deliverables are set out in the Project Budget (Fees). Unless we agree otherwise in writing, our Fees will be on a time and materials basis and is determined by the amount of Appetiser Personnel, time and materials used in providing the Services and delivering the Deliverables. You bear the risk of cost overruns and delays on work performed on a time and materials basis. You will not be liable to pay for any out of pocket expenses incurred by Appetiser in providing the Services and delivering the Deliverables, unless such out of pocket expenses have approved by you prior to being incurred.

10.2. You must pay the Fees (or any other amounts owing under this MSA) in advance within 7 days of the invoice date and all Fees are exclusive of GST, which shall be payable in addition (unless stated otherwise in an invoice). To the maximum extent permitted by law, the Fees are non-refundable.

10.3. If you fail to pay the Fees (or any other amounts owing under this MSA) by the due date, Appetiser may: (a) charge interest on all outstanding invoices, charged at an interest rate of 1.25% per month (15% per annum); or  {b) suspend access to, and use of, the Services or Deliverables; or (c) terminate this MSA.

10.4. You will pay us all costs and expenses incurred in recovering any outstanding amounts (including interest) that are due to us under this MSA, including legal costs or other expenses incurred by us in relation to enforcement steps or mercantile or collections agents.

11.   Your Materials

11.1.You may be required to provide data, material, information, tools or software owned or licensed to you to Appetiser or its related bodies corporate, including: (a) data relating to your business and your personnel, including personal information and confidential information; (b) any other data disclosed by you or otherwise brought to our attention; and (c)  all intellectual property rights contained therein, (collectively, Your Materials).

11.2. You grant Appetiser and its related bodies corporate a royalty-free licence to use, reproduce, adapt, modify, sub-licence and communicate Your Material so we can provide Services and deliver the Deliverables (if any) under this MSA.

11.3. You will have sole responsibility for the legality, reliability, integrity, accuracy, and quality of Your Materials.

12.   Third party products and services

12.1. Appetiser may use third party products and services in the provision of the Services and the Deliverables (Third Party Products and Services). Appetiser will not be responsible for any acts or omissions of these third parties, and Appetiser makes no representation or commitment and shall not have any liability or obligation whatsoever in relation to the content or use of any Third Party Products and Services. Should you use the Services or the Deliverables to enable or assist your use of other Third Party Products and Services, you do so at your own risk. You acknowledge that you will make your own investigations into any Third Party Products and Services, and that you will review their relevant terms and conditions of use.

12.2.   Appetiser may incorporate intellectual property rights owned by third parties into its provision of the Services and the Deliverables (Third Party IP). If Appetiser has the ability the licence the use of any Third Party IP on a non-exclusive, perpetual, worldwide, transferrable and sub-licensable basis at the time of incorporation, then Appetiser hereby grants this licence to you. If Appetiser cannot licence the use of the Third Party IP to you on the basis of the foregoing licence terms, then (a) Appetiser must inform you of any Third Party IP used and direct you to where you can obtain a licence to use that Third Party IP, and (b) you will be responsible for acquiring all relevant licenses to use Third Party IP.

13.   Intellectual property rights

13.1.The parties acknowledge and agree that each party retains all intellectual property rights created or developed by it or owned by it prior to the Commencement Date (Background IP).

13.2. For the Term, Appetiser grants you have a non-exclusive, personal, revocable and non-sublicensable licence to access and use Appetiser’s Background IP for your business purposes and any other purpose expressly stated in the Engagement Letter or Project Plan.  

13.3. Appetiser may use, reproduce and publish  (a) your name, logo and trade mark,; (b) reference(s) to the fact that you are a customer of Appetiser; and (c) copies of the design elements of the Deliverables, on our website or our marketing collateral, for promotional or portfolio purposes.

13.4.The Deliverables will be delivered to you and title to all Deliverables (including all intellectual property rights contained therein but excluding Appetiser’s Background IP) will pass to you on receipt of full and final payment of the Fees (and any other amounts owing under this MSA).

13.5.You will remain the owner of Your Materials and your Background IP, provided you grant Appetiser and its related bodies corporate a royalty-free, transferable, worldwide and perpetual licence for Appetiser (and its related bodies corporate) to use and sub-license any of Your Materials and your Background IP for the purpose of providing the Services and delivering the Deliverables. You warrant that Your Materials and your Background IP does not infringe the rights of third parties.

13.6.You must not: (a) violate Appetiser’s Background IP or the Appetiser  IP; (b) modify, alter, adapt, reverse compile, disassemble, reverse engineer any of the Services and Deliverables; or (c) licence, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Services and Deliverables available to any third party without Appetiser’s written consent.

14.   Liability

14.1.   To the maximum extent permitted by law, Appetiser excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise) in connection with the access to and use of, the Services, the App and the Deliverables.

14.2.   Nothing contained in this MSA excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other equivalent legislation where to do so is unlawful.

14.3.   To the maximum extent permitted by law, Appetiser will not be liable to you or any third party for any Loss.  

14.4.   Under no circumstances will Appetiser’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Fees paid by you in the preceding 1 month of the claim.

14.5.   You are responsible for results or conclusions obtained from the use of the Services and the Deliverables. Appetiser will not be liable for any damage caused by errors or omissions in any information or instructions provided by you in connection with the Services or the Deliverables.

14.6.   You agree to defend, indemnify and hold Appetiser, its related bodies corporate, officers, directors and personnel (collectively, the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of: (a) the access to, and use of, the Services or  the Deliverables by you or any third party; (b) Your Material or your Background IP breaching a third party’s intellectual property rights; or (c) any breach by you or your Personnel of this MSA.
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15.    Termination

15.1.   Either party may terminate this MSA by giving the other party at least 14 days’ written notice of termination.

15.2.   Either party may terminate this MSA immediately by notice in writing if: (a) the otherparty is in breach of any material term of this MSA and such breach is not remedied within 20 days after receiving noticing requiring it to do so, or such breach is not capable of remedy; or (b) the other party becomes bankrupt or insolvent.

15.3.   On termination of this MSA for any reason: (a) you must immediately pay all outstanding Fees and any other amount owing to Appetiser under this MSA/Project Budget (including interest). In the event that any milestone for the payment of Fees has not been reached as at the date of termination of this MSA, you shall pay us an amount representing the value of the Services or Deliverables (if any) provided up to the date of termination on a pro rata basis; (b) you must immediately return to Appetiser all confidential information, Background IP and any other property belonging to Appetiser in your possession, custody or control; and (c) all licences and rights granted to you under this MSA shall immediately terminate.

16.    Confidentiality and privacy

16.1.  Each party undertakes that it will not, either during the Term or at any time thereafter (except as required by law) disclose to any person any confidential information of or relating to the other party or its related bodies corporate which has come into its possession as a result of this MSA (except that each party may disclose confidential information to its professional advisors an employees on an ‘as needed’ basis and only to the extent they need to know). You shall procure that anyone else receiving benefit of the Services or the Deliverables (or any part thereof), whether your employees or otherwise, comply with terms of this clause as if they were a party to this MSA. The obligations of confidentiality imposed by this MSA survive the termination of this MSA. 

16.2.   You agree that, in relation to Your Materials and to the extent that you come into possession of any personal information in the course of exercising your rights or performing your obligations under this MSA, you will comply with the provisions of the Privacy Act 1988 (Cth).

17.    Force Majeure

Appetiser will not be liable to you or anyone else under this MSA if it is prevented from or delayed in performing its obligations under this MSA, or from carrying on its business, by acts, events, omissions or accidents beyond control  including, but not limited to: acts of God; any failure of a utility service or transport or telecommunications network, riots, civil commotion; computer hacking; war, acts of terrorism, malicious damage; any accident, breakdown of plant or machinery; fire, flood, storm or earthquake, any disaster or adverse weather; any default or non-performance of hosting or data centre providers or other suppliers or sub-contractors, Laboure disputes, or any other failure, act or omission in Appetiser’s supply chain  or Third Party Service Providers (Force Majeure Event).

18.   Non-solicitation

You agree not to, directly or indirectly, engage, employ or solicit any of Appetiser’s personnel or its related bodies corporate’s personnel involved in the provision of the Services and/or the Deliverables during the Term and for 12 months after the termination or expiry of this MSA (or, if this is deemed invalid, for 6 months from the date of termination of this MSA).

19.  Dispute resolution

19.1.   The parties must, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute under or relating to this MSA initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved with this period, then either party may initiate court proceedings. Notwithstanding the existence of a dispute, each party must continue to perform its obligations.

19.2.   Invoices may only be disputed by you by providing Appetiser with written details within 7 days of the invoice date, failing which the invoice shall be deemed accepted by you. You shall make payment of any undisputed portions of an invoice.

20.   General

20.1.   You may, at any time during the Term, request in writing that Appetiser vary or cancel any or all of the current Services or Deliverables. No variation will be effective unless it is signed by both parties. 

20.2.   If any provision (or part of a provision) of this MSA is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

20.3.   This MSA, the Engagement Letter, Project Plan (as amended from time to time) and ourPrivacy Policy constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

20.4.   Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this MSA, except that Appetiser may assign, sell or transfer its rights or obligations under this MSA to a related bodies corporate or bona fide third party purchaser of Appetiser’s business.

20.5.   No partnership, employment relationship, joint venture, or any other form of association is created in this MSA.

20.6.   The laws of the state of Victoria, Australia govern this this MSA. The parties agree to submit to the exclusive jurisdiction of the courts of Victoria.

21.   Definitions

21.1.   Advertising Services means any or all of the following: (a) social media marketing; (b) search engine marketing and Google AdWords services; (c) e-mail marketing and e-commerce advertising campaigns; (d) search engine optimisation services; (e) website content development; and/or (e) other digital marketing solutions as agreed by the parties from time to time in the Project Plan;

21.2.   App means the web or mobile application developed by Appetiser for you in accordance with the terms and conditions of this MSA and the Project Plan.

21.3.   App Development Services means the provision of mobile application and software development services as further described on our website or in the Project Plan.

21.4.   Engagement Letter means the initial Project Plan and Project Budget.

21.5.   Deliverables means the tangible deliverables produced or generated a result of the Services, such as the App, the source code, systems, software programs, related technology, documentation and marketing/advertising content.

21.6.   Loss means (a) direct, indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; (b) loss of anticipated or actual profits, loss arising from business interruption, loss of anticipated or actual revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of contracts or interest, loss of opportunity or expectation loss or loss of production; or (c) loss of or damage to any property; (d) any personal injury or death to you or any third person, arising out of, relating to or connected to, the provision or use of the Services or the Deliverables (or any Third Party Products and Services used in connection with the Services).

21.7.   Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of a party. 

21.8.   Project Budget has the meaning in clause 4.1 (as amended from time to time).

21.9.   Project Plan has the meaning in clause 4.1 (as amended from time to time).

21.10. Services means the provision of any or all of the following: (a) Advertising Services; (b) App Development Services; and (c) any other technology and/or customer sales and support services as agreed by the parties from time to time, as further described in the relevant Project Plan.