Last Updated: September 2, 2024
1. Introduction
In addition to our Subscription Services, MoveData offer professional and support services, these terms regulate the provisions of our professional and support services to and for the benefit of a Client.
PLEASE READ THESE TERMS AND CONDITIONS (the “PSA” or “Agreement”) as they apply to the professional and consulting services, we are rendering to you. These are the standard terms and conditions to which you agree to them once you accept a MoveData Statement of Work (SOW).
2. Definitions
2.1. The following definitions are used in this Professional Services Agreement (“PSA”):
| Term | Definition |
| Acceptance | Shall have the meaning in clause 8.9 of this PSA |
| Acceptance Criteria | Means the Specifications or a set of outcomes set out in the relevant SOW, or as otherwise agreed by the Client and MoveData in writing before the Acceptance Test is conducted, that the Deliverable must produce during the Acceptance Test. |
| Acceptance Test Period | Means the agreed period (commencement date and duration) set out in the relevant SOW for performing the Acceptance Test on the Deliverable. In the absence of an agreed period the Acceptance Test should commence not more than seven (7) days after MoveData have supplied the Client with the Deliverable. |
| Acceptance Test | Means a set of tests (conducted within the Acceptance Test period in accordance with clause 8) measured against the Specifications set out in the relevant SOW, or otherwise to be designed by the Client and agreed by MoveData, acting reasonably, before the Acceptance Test is conducted, which the Client will conduct on the Deliverable to establish that the Services provided conform with the Deliverable. |
| Applicable Law | Means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction |
| Application Software | Means software developed or customised for a particular business purpose using MoveData Services to implement the Licensed Software |
| Business Day | Means a day other than a Saturday, Sunday or bank or public holiday in Australia |
| Change | Means any change, amendment or alteration to the Specification, the Services or this PSA |
| Change Control Note | Means a written note which details the impact the proposed Change will have on any part of the Specification, the Services or this PSA, in such form as the parties agree |
| Change Control Procedure | Means the procedure for agreeing Changes as set out in this Agreement |
| Client | Means the named party in the SOW (which has agreed to purchase the relevant Services from MoveData and whose details are set out in the SOW |
| Client Materials | Means any material owned by the Client or its Affiliates relating to the Services (and any modifications to that material) |
| Confidential Information | Means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Client in performing its obligations under, or otherwise pursuant to this PSA |
| Deliverable(s) | Means, but is not limited to, Application Software, Systems Integration and/or Documentation. A description of the Deliverable is typically contained in either the Specifications, a Proposal duly signed by both Parties, an SOW, or as an output of the accepted proposal. |
| Documentation | Means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables |
| Fee | Shall have the meaning given in Clause 5 |
| Force Majeure | Means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this PSA including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of this PSA, strike, lockout or boycott or other industrial action including those involving MoveData or MoveData’s workforce, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay |
| Good Industry Practice | Means the exercise of that degree of professionalism, skill, diligence, prudence and foresight, which would reasonably and ordinarily be expected from a skilled and experienced person or company engaged in the same type of activity under the same or similar circumstances |
| Intellectual Property Rights | Means utility models, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software database rights, rights to sue for passing off, domain names, protect the confidentiality of Confidential Information, and all other intellectual property rights and similar rights and, in each case:
|
| Licensed Software | Means any software that has been licensed for use by the Client and in which the original supplier retains the intellectual property |
| MoveData | Means Blueberry Agency Pty Ltd t/a MoveData (ABN 59 650 199 440) |
| Party (or Parties) | Means either MoveData or the Client |
| Proposal | Means any document (including a document provided by the Client and specifically agreed to by MoveData) in which MoveData offers to provide the Client with professional Services and/or other Deliverable. A Proposal can become a SOW if signed by both Parties |
| Project Manager | Means the named MoveData & Client personnel in the SOW with the specific and direct responsibility for delivery of their part of the Services and Deliverable in accordance with the PSA |
| PSA or Agreement | Means this agreement between MoveData and the Client for the sale, purchase and supply of the Deliverables and Services incorporating the terms of this PSA (as amended from time to time), the SOW, including all its schedules, attachments, annexes and statements of work |
| Services | Means the services set out in the SOW which is to be supplied by MoveData to the Client in accordance with this PSA |
| SOW | Means Statement of Work. An accepted SOW is a document agreed by the parties setting out the details of, and requirements for, a set of Services (including Support Services) and Deliverables (as updated from time to time in accordance with the Change Control Procedure) to be supplied by MoveData in accordance with this PSA |
| Specifications | Means the description of the Services as set out in the SOW |
| Support Services | Means MoveData Support Services. An accepted Support Services is a document agreed by the parties setting out the support terms, including number of hours, to be supplied by MoveData in accordance with this PSA. |
| Systems Integration | Means information that MoveData may provide as part of the Deliverable and which may be provided in printed form, electronic form or both |
2.2. References
In this PSA, unless the context otherwise requires:
2.2.1. A reference to the PSA, the Agreement includes these terms, the Proposal, and their respective schedules, appendices and annexes (if any);
2.2.2. Any clause, schedule or other headings in this PSA are included for convenience only and shall have no effect on the interpretation of the terms of the PSA;
2.2.3. A reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
2.2.4. A reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
2.2.5. A reference to a gender includes each other gender;
2.2.6. Words in the singular include the plural and vice versa;
2.2.7. Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
2.2.8. A reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form; and
2.2.9. A reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under this Agreement.
3. Application of this PSA
3.1. This PSA apply to and form part of the agreement between MoveData and the Client. They supersede any previously issued terms and conditions of purchase or supply.
3.2. No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, proposal, order, confirmation of order, specification or other document shall form part of this PSA except to the extent that MoveData otherwise agrees.
3.3. This PSA constitutes an offer to purchase Services.
3.5. This PSA shall only be deemed to be completed when the Client agrees in writing to (or signs) the SOW and on which date the PSA shall come into existence (Commencement Date).
3.6. No variation of this PSA or to a SOW shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Client and MoveData.
3.6. Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of this PSA.
3.7. This PSA apply to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.8. This PSA is for the duration of the assignment for which a SOW has been accepted and will continue in effect until terminated in accordance with the provisions of this PSA.
4. Provision of the Services
4.1. On receipt of an accepted SOW, MoveData shall provide the Client with the Services and Deliverable to which the SOW refers.
4.2. On receipt of an accepted SOW, MoveData shall provide the Client with support for the Client’s MoveData configurations up to the number of hours to which the SOW refers.
4.3. Where referred to by a SOW, MoveData shall provide the Services and Deliverable by the dates and at the costs contained in the SOW, however, both parties acknowledge that the dates and costs are to be treated as estimates only unless a fixed price and/or a firm completion date have been specifically offered in the SOW.
4.4. MoveData commits to maintaining continuity of personnel during the period that the Services are to be provided in accordance with the terms of this PSA, but absences due to holidays, training, external meetings, illness or any other cause may result in non-attendance and MoveData will replace any personnel so removed with personnel of equivalent skills and experience.
4.5. MoveData may from time to time with Client approval use personnel who are not employees of MoveData where MoveData considers it necessary. MoveData shall ensure that all personnel involved in performing the Services possess appropriate skills and experience.
4.6. To the extent that the Services involve training of the Client’s personnel:
4.6.1 The Client will be responsible for all out-of-pocket expenses incurred by those who attend any course;
4.6.2 MoveData reserves the right to exclude any person whose attendance would not be conducive to the successful running of the course; and
4.6.3 Non-attendance by any person will not entitle the Client to any reduction or refund of fees;
4.7. MoveData may supply certain proprietary training materials solely for the Client’s use and the Client agrees not to provide any such training material to third parties or make copies of any such training materials without the prior written consent of MoveData which shall not be unreasonably withheld.
5. Fee and Payment
5.1. The Fee will be as stated in the relevant SOW (the Fees).
5.2. MoveData will periodically, as detailed in the SOW, raise and submit to the Client a tax invoice which will specify, in relation to the Services, the identity of the personnel involved, the number of hours worked, the nature of the work performed and the date the work was performed.
5.3. MoveData may in addition to the rate specified in the SOW, recover fees charged at premium rates should Services be required to be performed outside normal business hours. The Client acknowledges that MoveData shall not work weekends, public holidays or other holiday days or days off which are generally accepted as public holidays without a special arrangement with MoveData.
5.4. MoveData shall in addition to the basic rate specified recover in full the direct cost of:
5.4.1. Client approved consumable materials used by MoveData;
5.4.2. Client approved travelling and accommodation expenses incurred by MoveData, its personnel or subcontractors;
5.4.3. Client approved overtime by MoveData, its personnel or subcontractors; and
5.4.4. Any other Client approved disbursements which MoveData reasonably considers necessary to enable it to properly and effectively discharge its obligations under this PSA.
5.5. MoveData agrees to maintain all supporting documentation, including time sheets and receipts for the purpose of substantiating its invoices. The Client, on the giving of seven (7) days written notice and at its own expense, can request copies of the timesheet.
5.6. MoveData shall invoice the Client in accordance with the payment terms agreed in writing in the SOW.
5.7. All fees and charges payable by the Client in respect of any SOW applicable to this PSA are exclusive of any taxes, duties, fees or other Government levies or charges which may be imposed on or in respect of the SOW, the Services or any other Licensed Software its use or its maintenance under this PSA. Such taxes, duties, fees or other Government Charges shall to the extent permissible by Law be paid by the Client immediately they become due and, in any event, not later than thirty (30) days after notice in writing by MoveData requiring such payment. The Client shall only indemnify MoveData for the payment of taxes made by MoveData to the extent that any such payments are a direct result of MoveData performing the Services in respect of any SOW applicable to this PSA.
5.8. If the Client disputes the whole or any portion of the fees and charges invoiced by MoveData, it must pay that portion not in dispute within the agreed terms and notify MoveData in writing of the amount in dispute and reasons for disputing the account. If the parties are unable to reach agreement within seven (7) days of notice, the dispute may be determined in accordance with the dispute resolution process set down in clause 22 of this PSA.
5.9. Unless other payment arrangements are specifically mentioned in the SOW, the Client shall pay all invoices:
5.9.1. In full without deduction or set-off, in cleared funds within 7 days of the date of each invoice; and
5.9.2. to the bank account nominated by MoveData as contained in SOW.
5.10. Time of payment is of the essence. Where sums due under an SOW or this agreement are not paid in full by the due date, without limiting MoveData’s remedies under clause 17:
5.10.1. MoveData may, without limiting its other rights, charge interest on such sums at 2% a year above the base rate of Reserve Bank of Australia from time to time in force, but at 2% a year for any period when that base rate is below 0%, and
5.10.2. Interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgement.
5.11. If amounts due to MoveData remain unpaid more than 7 days after the date of the invoice, MoveData shall be entitled to (without notice) cease or suspend any services under this PSA without prejudice to any other rights or remedies that MoveData may have in relation to the non- payment and may invoice the Client for all accrued fees and expenses.
5.12. Without prejudice to MoveData’s right to claim costs under any law or act, if for any reason any payment is not made when due, MoveData reserve the right to be paid on an indemnity basis any costs incurred in recovering any money due under this PSA (and the costs of recovering such costs) including administrative costs and any costs incurred with lawyers or debt collection agencies. Administrative costs may include the cost of employing the staff concerned and the overheads attributable to them for the time spent. In calculating administrative costs, credit will be given for any compensation due under applicable laws or acts.
5.13. All amounts due under this PSA shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. GST (Australian Clients Only)
6.1. Definitions:
| Term | Definition |
| GST | Means GST within the meaning of the GST Act |
| Input Tax Credit | In relation to a supply, means a credit under the GST Act for the GST payable by the recipient in respect of the supply |
| Price | Means the rates, fees and amounts payable for the provision of the professional services and, unless the contrary intention appears, is expressed as a GST exclusive amount for the provision of the professional services |
| Tax Invoice | In relation to a supply, means an invoice for the supply required by the GST Act to support a claim by the recipient for an Input Tax Credit for the GST on the supply |
6.2. GST inclusive price of taxable supply of professional services under this PSA
Notwithstanding any other provision of this PSA, to the extent that the Company makes a taxable supply in connection with the provision of professional services only under this PSA, the consideration payable by the Client under this PSA represents the GST inclusive value of the taxable supply for which payment is to be made.
6.4. Reimbursement of expenses in which Input Tax Credit available
If this PSA requires a party to pay for, reimburse or contribute to any expense or liability (“reimbursable expense”) incurred by the other party (“payee”) to a third party, the amount to be paid, reimbursed or contributed will be the amount of the reimbursable expense including any input tax credit.
6.5. Consideration other than for professional services, exclusive of GST
Except where express provision is made to the contrary (such as in respect of the price of professional services or a reimbursable expense), the consideration or amount payable by a party for a taxable supply made by the other party under this PSA represents the value of the taxable supply for which payment is to be made.
6.6. Payment of GST
If a party makes a taxable supply under this PSA for a consideration which represents the net expense then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the net expense or value otherwise payable, the amount of any GST payable in respect of the taxable supply.
6.7. Provision of Tax Invoice
A party’s right to payment, under this PSA arises and is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
6.8. GST Warranty
The parties warrant that they are registered or required to be registered under the GST Act.
7. Parties Obligations
7.1. MoveData’s Obligations:
7.1.1. MoveData shall supply the Services to the Client in accordance with this PSA in all material respects;
7.1.2. MoveData shall perform the services with all reasonable skill, care and diligence;
7.1.3. Given the nature of technology services, MoveData does not warrant or represent that the Services will be free from minor errors;
7.1.4. Time of performance shall not be of the essence. MoveData shall use its reasonable endeavours to perform the Services in accordance with the performance dates contained in the SOW, however any such dates shall be estimates only.
7.2. Client’s Obligations:
During the term, the Client shall at all times and in all respects:
7.2.1. Perform its obligations in accordance with the terms of this Agreement;
7.2.2. Pay the Fees in accordance with the provisions of clause 5;
7.2.3. Cooperate with MoveData in all matters arising under this Agreement or otherwise relating to the performance of the Services;
7.2.4. Perform all additional Client responsibilities as stated in the SOW
7.2.5. Provide the Client Materials, and all other information, documents, materials, data or other items necessary for the provision of the Services, to MoveData in a timely manner (within seven days of request), unless when it is impossible to which the Client shall inform MoveData that it is impossible;
7.2.6. Inform MoveData in a timely manner of any matters which may affect the provision of the Services;
7.2.7. Comply with its obligations under clause 19;
7.2.8. Ensure that all materials, information or other items provided to MoveData for the provision of the Services are suitable for the performance of the Services, in good condition, accurate, complete and in good working order; and
7.2.9. Obtain and maintain all necessary licences, permits and consents required to enable MoveData to perform the Services and otherwise comply with its obligations under this PSA.
7.3. If MoveData’s performance of any of its obligations under this PSA is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation including, but not limited to, delays or failures by the Client to transfer or manipulate data promptly as required by MoveData or due to delays resulting from the Client’s lack of personnel resources attributed or allotted to the project or Services as contained in the SOW (Client Default). Without limiting or affecting any other right or remedy available to it, MoveData:
7.3.1. May suspend performance of the Services until the Client remedies its default;
7.3.2. Shall not be liable for any costs or losses sustained by the Client as a result of such suspension; and
7.3.3. May charge the Client (and the Client shall pay under this PSA) costs or losses incurred by MoveData arising from the Client’s default.
8. Completion and Acceptance Test
8.1. Unless Completion is otherwise stated in the SOW, after the performance of the Services, MoveData may provide written confirmation to the Client stating any or all of the following:
8.1.1. That the Services has been completed;
8.1.2. Any manual to the use of the Deliverables,
8.1.3. Any special instructions, handling and other requests; and
8.1.4. Any invoice due for the completion (in accordance to the payment arrangements in the SOW) (the Completion Notification)
8.2. At the delivery of the Completion Notification, the Client shall immediately (and no later than seven days after the Completion) test the Services for the numbers of days stated in the SOW (the Acceptance Test Period). All feedback will be logged in accordance with the provisions of the SOW. Where the SOW is silent on how to log feedback, the Client must send this to MoveData’s Project Manager.
8.3. At the end of the Acceptance Test Period, MoveData will confirm all the feedback and fix all issues that are attributable to some act or default of MoveData and shall send a fix notice (which can be in the form of a response to a support ticket) to the Client. Issues attributable to MoveData’s default shall be limited to feedback around the non-compliance of the Deliverables to the Specifications;
8.4. At the receipt of the fix notice, the issues remain unfixed, the Acceptance Test process in Clause 8.2 will be repeated.
8.5. Any feedback or amendment requests made during the Acceptance Test that are outside the Specifications and MoveData’s default shall be treated as additional work and shall be subject to the Change Control provisions in clause 9.
8.6. The process in Clause 8.2- 8.5 shall be repeated until the Deliverables are determined to be completed and accepted by the Parties, if this is not done, the Acceptance Test period shall be deemed completed after the Acceptance Test Period.
8.7. At the end of the end of the Acceptance Test Period, If the Deliverables being tested performs in accordance with the agreed Specification or other agreed test standards and meets the agreed Acceptance Criteria for the Acceptance Test, it shall be deemed to have passed the Acceptance Test.
8.8. In the event that MoveData’s is unable to rectify that defective part of the Deliverable wholly attributable to MoveData, then MoveData shall repay to the Client in full and final settlement, such sums paid by the Client to MoveData in relation to the defective part of the Deliverable that failed the Acceptance Test.
8.9. The Client’s acceptance of the Deliverables (the Acceptance) shall occur at the earliest of any of the below:
8.9.1. the Client providing written Acceptance of the Deliverables; or
8.9.2. the Deliverables passing the Acceptance Tests in accordance with this clause; or
8.9.3. the Deliverables being used in a live or production environment or in commercial use; or
8.9.4. the expiration of the Acceptance Test Period in circumstances where the Client has failed to complete the Acceptance Tests.
8.10. Unless in cases where the Parties expressly signed off and accept completion, the Services shall be deemed to have been completed in full and in accordance with the terms of this Agreement (Completion) after the occurrence of any of the events in clause 8.9.
8.11. MoveData shall not be liable for any delay or failure in Completion caused by:
8.11.1. the Client’s failure to provide MoveData with adequate instructions for performance of the Services;
8.11.2. the Client’s failure to comply with its payment obligations under clause 5 of this PSA;
8.11.3. the Client’s failure to supply the Client Materials in a timely manner; or
8.11.4. Force Majeure.
9. Change Control
9.1. All Changes to the Services, Deliverables, the Specification and this Agreement shall take place in accordance with the following Change Control Procedure. Either party may submit at any time a request for Change to the other party.
9.2. Where MoveData originates a Change, it shall provide the Client with the Change request, a Change Control Note.
9.3. Where the Client originates a proposed Change, it shall provide MoveData with such information (as is within the Client’s reasonable possession or control) which the Client reasonably considers is relevant to such Change or may assist MoveData in the preparation of a Change Control Note.
9.4. The Change Control Note may take various forms. It may be a formal Change Control Note document, but depending upon the nature of the Change, email correspondence, support ticket and other equivalent written exchanges can also constitute a Change Control Note.
9.5. Where the Client and MoveData agree to implement a Change, the costs of implementing the Change shall be paid by the Client in addition to the amounts due for providing the Services, relevant Deliverables or allocation of resources associated with the Change as set out in the Change Control Note.
9.6. The parties shall have no obligations in respect of a Change Control Note unless they expressly agree to do so either by executing the Change Control Note or by sending a return acceptance email or otherwise agree to do so in writing.
10. Warranties and Warranty Period
10.1. The Client warrants that:
10.1.1. It has the right, power and authority to enter into this Agreement and grant MoveData the rights (if any) contemplated in this Agreement; and
10.1.2. The Client Materials and all other information, documents, materials, data or other items provided by the Client pursuant to this Agreement do not infringe the Intellectual Property Rights of any third party.
10.2. MoveData warrants that the Services shall be performed:
10.2.1. In accordance with Good Industry Practice; and
10.2.2. By suitably qualified and competent personnel who shall exercise all reasonable skill and care and all due diligence in the execution thereof
10.3. Any other third party Licensed Software which MoveData may supply to the Client under the terms of this PSA will be supplied on an “as is” basis, and the obligation of MoveData is limited to making available the benefit of any warranty provided to MoveData by the original supplier of that software.
10.4. For a period of 30 days from the Acceptance date (the Warranty Period), MoveData will remedy, free of charge, any material defects appearing in such Deliverable providing the following conditions are met;
10.4.1. the defect is reported to MoveData within the warranty period as soon as possible after the Client becomes aware of the defect;
10.4.2. the defect has arisen from proper use in accordance with all Documentation supplied and procedures communicated by MoveData to the Client;
10.4.3. the defect is attributable to faulty workmanship or design by MoveData; and
10.4.4. the Client provides MoveData with all facilities and information reasonably required by MoveData for the duplication, investigation and remedying of the defect.
10.5. MoveData reserves the right to charge the Client for correction of any defect in the Deliverable should the defect result from a cause not attributable to MoveData (this includes but is not limited to workflows, triggers, business logic and/or environments external to the work performed by MoveData).
10.6. MoveData has no obligation to correct any defect in the Deliverables due to any Client initiated modification, outside of normal operating parameters, which can be shown to have caused the defect in the Deliverables.
10.7. MoveData shall not be liable for any failure of the Services or the Deliverables to comply with the provisions of clause 10.2 where the same arises directly or indirectly and whether in whole or in part as a result of:
10.7.1. A breach by the Client of any of its obligations under this Agreement;
10.7.2. An event of Force Majeure;
10.7.3. Any design, Specification or requirement of the Client; or
10.7.4. Use of the Client Materials.
10.8. MoveData shall not be responsible for rectifying other people’s mistakes (this includes, but is not limited to, scenarios where the Client has passed the (Acceptance Test as stated in clause 8) without having conducted sufficiently thorough and comprehensive review to identify all defects or necessary changes). The Services to be provided by MoveData under this PSA do not include correction of errors or defects caused by other people, such as errors or defects:
10.8.1. Caused by operating Licensed Software in a manner other than as specified by the Licensor
10.8.2. Caused by unauthorised modification, revision, variation, translation or alteration of Licensed Software
10.8.3. Caused by unauthorised use of Licensed Software, with particular reference to corruption and/or deletion of software and/or data in the Client’s computer systems resulting from “hacking” or any other form of unauthorised intervention
10.8.4. Caused by the Client experiencing a “virus infection” in its computer environment
10.8.5. Caused in whole or in part by the use of unlicensed software or an open source software
10.8.6. Caused by the failure of the Client to provide suitably qualified and adequately trained operating and / or programming staff for the operation of Licensed Software
10.8.7. Caused by workflows, triggers, business logic and/or environments external to the work performed by MoveData (unless agreed to as part of the SOW)
10.8.8. Arising directly or indirectly out of the Client’s failure to comply with this PSA or any software licence agreement for software used in or by Deliverable on, or
10.8.9. Which are the subject of a warranty under another agreement
10.9. The parties acknowledge and agree that the services are provided in line with the Specifications and without any other express or implied warranties, representations or undertakings.
10.10. Except as set out in this clause 10:
10.10.1. MoveData gives no warranty and makes no representations in relation to the Services;
10.10.2. MoveData shall have no liability for any non-compliance with the warranty in clause 10.2, and
10.10.3. The provisions of this clause 10 set out the Client’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of clause 10.2 or for any other error or defect in the Deliverables or defective performance of the Services.
11. Insurance
11.1. MoveData must for the duration of this Agreement maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Agreement and will provide to the Client upon request sufficient evidence of such insurance cover.
11.2. The Insurance shall cover its legal liability for individual claims covering $AU10,000,000 for claims related to professional indemnity and $AU20,000,000 for claims related to public liability.
12. Limitation of liability
12.1. The extent of the parties’ liability under or in connection with this PSA (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.
12.2. MoveData has obtained insurance cover (as stated in clause 11) regarding its legal liability for claims. The Client is responsible for making its own arrangements to insure any excess loss.
12.3. References to liability in this clause 12 include every kind of liability arising under or in connection with this PSA, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.4. Nothing in this clause 12 shall limit the Client’s payment obligations under this Agreement.
12.5. Nothing in this Agreement limits any liability which cannot legally be limited under applicable law.
12.6. Subject to clause 12.5 (Liabilities which cannot legally be limited), MoveData’s total liability to the Client for all direct loss or damage shall not exceed the amount of fees agreed to be paid by the Client to MoveData in the 12 months period leading to the arising of the relevant claim of loss or damage.
12.7. Subject clause 12.4 (No limitation of Client’s payment obligations) and clause 12.5 (Liabilities which cannot legally be limited), this clause 12.7 sets out the types of loss that are wholly excluded:
12.7.1. Loss of profit;
12.7.2. Loss of revenue;
12.7.3. Loss of sales or business;
12.7.4. Indirect or consequential loss;
12.7.5. Loss of contract or agreements;
12.7.6. Loss of commercial opportunity;
12.7.7. Loss of anticipated savings; and/or
12.7.8. Harm to reputation or loss of goodwill.
12.8. Unless the Client notifies MoveData that it intends to make a claim in respect of an event relating to this Agreement or an associated SOW within the notice period, MoveData shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and identify the event and the grounds for the claim in reasonable detail.
12.9. This clause 12 shall survive termination of this PSA.
13. Intellectual Property
13.1. For the purposes of this clause 13, “Background IP” shall mean means any and all Intellectual Property Rights, owned or controlled by MoveData (MoveData Background IP) or licensed to MoveData (Third Party Licensed Background IP) prior to or outside the Services, but required for the purposes of the Services.
13.2. In consideration of the Client paying the Fee to MoveData, MoveData agrees that all the Intellectual Property Rights in the Deliverables (apart from the Background IP) will transfer to the Client by way of present and future assignment, in any sector and for any purpose, with effect from the date on which all invoices due to be submitted in respect of the Services have been paid.
13.3. In relation to MoveData’s Background IP in the Deliverables, MoveData grants to the Client, the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, non-transferrable, royalty-free licence during the term of the Agreement for the purpose of receiving and using the Services and the Deliverables. When the Client is required to obtain a third-party license to use any Third-Party Licensed Background IP, MoveData shall promptly communicate to the Client the need for such license and the obligation to procure such license will be on the Client. MoveData shall not be held liable for any default arising from the failure of the Client to procure a license to use such Third-Party Licenced Background IP.
13.4. The Client shall not sub-license, assign or otherwise transfer the rights licensed in clause 13.1 except to a group company of Client. For the purpose of this Agreement, Group Company means in relation to the Client, the Client company, any subsidiary or holding company at the date of this Agreement.
13.5. All Client Materials shall remain the property of the Client or its licensors, and the Client grants to MoveData a non-exclusive, non-transferrable, royalty-free licence of such of the Client’s Intellectual Property Rights in the Client Materials as are necessary for MoveData to fulfil its obligations under this Agreement.
13.6. Subject to the foregoing, each Party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with this Agreement provided always that such skills, techniques or know-how do not infringe the other Party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other Party’s Confidential Information.
13.7. A Party (The Indemnifier) shall indemnify and keep indemnified and hold harmless the other Party (the ‘Indemnitee’) from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Indemnitee as a result of or in connection with any action, demand or claim that use or possession of any of the Preliminary Research Findings, infringes the Intellectual Property Rights of any third party (IPR Claim), provided that Indemnifier shall have no such liability if the Indemnitee:
13.7.1. Does not notify the Indemnifier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
13.7.2. Makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Indemnifier (which shall not be unreasonably withheld or delayed);
13.7.3. Does not let the Indemnifier at its request and own expense have the conduct of or settle all negotiations and litigation arising from IPR Claim; or
13.7.4. Does not, at the Indemnifier’s request and own expense, give the Indemnifier all reasonable assistance in the circumstances described above.
13.8. If any IPR Claim is made or is reasonably likely to be made, MoveData may at its option:
13.8.1. Procure for the Client the right to continue receiving the benefit of the relevant Deliverables; or
13.8.2. Modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.
13.9. obligations under clause 13.7 and 13.8 shall not apply to Deliverables modified or used by the Client other than in accordance with the Agreement or MoveData’s instructions. The Client shall indemnify MoveData against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by MoveData in connection with any claim arising from such modification or use.
14. Confidential Information
14.1. Subject to clause 15 and clause 21, each Party shall maintain the confidentiality of the other Party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other Party’s Confidential Information (or permit others to do so) other than as necessary for the exercise of its rights and performance of its obligations under this Agreement.
14.2. Each Party undertakes to:
14.2.1. Disclose the other Party’s Confidential Information only to those of its officers, employees, agents and contractors (including MoveData personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
14.2.2. Procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
14.3. Each Party shall give notice of any unauthorised misuse, disclosure, theft or loss of the other Party’s Confidential Information to the other Party immediately upon becoming aware of the same.
14.4. The provisions of this clause shall not apply to information which:
14.4.1. Is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
14.4.2 Is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
14.4.3. Is independently developed by the recipient, without access to or use of such Confidential Information; or
14.4.4. Is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant Party, where possible, notifies the other Party at the earliest opportunity before making any disclosure.
14.5. The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five years thereafter.
14.6. Each Party (the ‘Indemnifier’) shall indemnify and keep indemnified and hold harmless the other (the ‘Indemnitee’) from and against any losses, damages, liability, costs (including legal fees) and expenses which the Indemnitee may incur or suffer as a result of or arising from any breach by the Indemnifier of its obligations under this clause.
15. Processing of Personal Data
15.1. Each Party shall comply with its respective obligations, and may exercise its respective rights and remedies, under the applicable data protection laws and MoveData Data Processing Addendum.
16. Support Services Specific Terms
16.1. When the Services to be provided under this Agreement relates to MoveData support Services, details of which are contained here, the changes and specific terms stated in this clause 16 shall apply to the provisions of this PSA.
16.2. When there is a conflict between the support policy and this PSA:
16.2.1. When such conflict relates to the Support Services itself and the fees for the Support Services, the support terms shall take precedence; and
16.2.2. For every other issue, this PSA shall take precedence.
16.3. Clause 10.4 shall not apply as there is no warranty for Support Services
16.4. All effort spent by MoveData addressing Support requests will be charged under an SOW for Support Services . This includes, but is not limited to, reviewing, managing, investigating, preparing, attending, training, communicating, and all technical support including scoping, configuring, developing and coding. Further details is as provided in MoveData support policy.
17. Termination and Consequence of Termination
17.1. Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party 90 calendar days’ written notice unless otherwise stated in the SOW.
17.2. Unless when termination is in line with clause 17.5, if the Client terminates for any other reason, the entire project fees as stated in the SOW shall become due to MoveData immediately and shall be non-refundable.
17.3. Without affecting any other right or remedy available to it, MoveData may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment or if the Client fails to comply with any material term of the terms of this PSA and the SOW.
17.4. Without affecting any other right or remedy available to it, MoveData may suspend the supply of Services under the Agreement or any other contract between the Client and MoveData if the Client fails to pay any amount due under the Agreement on the due date for payment or if the Client fails to comply with any material term of the terms of this PSA and the SOW.
17.5. Either Party may terminate this Agreement at any time by giving notice in writing to the other Party if:
17.5.1. the other Party commits a material breach of this Agreement and such breach is not remediable; and/or
17.5.2. the other Party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach;
17.6. On termination or expiry of the Agreement, the Client shall immediately pay to MoveData all of MoveData’s outstanding unpaid invoices and interest, and, in respect of Services supplied but for which no invoice has been submitted, MoveData shall submit an invoice, which shall be payable by the Client in accordance with clause 5.
17.7. Notwithstanding the provision of clause 17.6, unless when termination is due to MoveData’s material breach in clause 17.5, any termination shall attract the payment of the entire sum due under the Agreement; and
17.8. Without prejudice to any additional obligations under the Data Processing Addendum, each Party shall, within 10 Business Days, return any materials of the other Party then in its possession or control.
17.9. Termination or expiry of the Agreement shall not affect the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected;
17.10. Any provision of this Agreement that either expressly or impliedly survives the expiry termination of this Agreement shall remain in full force and effect.
18. Notices
18.1. Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be sent by email to
- For MoveData: legal@movedata.io (with MoveData Project Manager in copy)
- For the Client: the email address specified in the SOW (with the Client Project Manager in copy).
18.2. Any notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
18.3. This clause 18 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
19. Non-Solicitation
19.1. Neither party will during the time the Services are being provided nor for a period of twelve months thereafter, recruit or attempt to recruit any staff, independent contractors or consultants under contract of the other who have either worked on or in some material way been involved in the Services. Should either party be in breach of this clause then the party in breach shall pay to the other in accordance with the following:
19.1.1. Payment to MoveData shall be the equivalent of one hundred and eight (180) person day’s work at MoveData’s current standard charge rate for the person so recruited and calculated at the time the person leaves the employment of MoveData.
19.1.2. Payment to the Client shall be the equivalent of six (6) months salary of the person so recruited and calculated at the time the person leaves the employment of the Client.
19.2. Both Parties acknowledge and agree that the duration, extent and application of the restrictions in this clause are reasonable and necessary to protect their business interests.
20. Force Majeure
20.1. A Party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:
20.1.1. Promptly notifies the other of the Force Majeure event and its expected duration; and
20.1.2. Uses reasonable endeavours to minimise the effects of that event.
20.2. If, due to Force Majeure, a Party:
20.2.1. Is or is likely to be unable to perform a material obligation; or
20.2.2. Is or is likely to be delayed in or prevented from performing its obligations for a total in any 12 months of operation of this Agreement of more than 45 Business Days,
The other Party may terminate this Agreement on not less than four weeks’ written notice.
21. Marketing and Promotion
21.1. The Client hereby grants MoveData a non-exclusive, non-transferable right to use the Client’s trade name, trademarks, a description of the services and refer to the Client as a service recipient in the Client’s listings and other marketing documentation and activities relating to the Services (“Granted Marketing Materials”), provided that such use is in accordance with this Clause 21, good business practice and in a manner to promote the reputation, goodwill and legitimate interest of both Parties.
21.2. The Client shall remain the exclusive owner of the Granted Marketing Materials which may be used by MoveData hereunder. MoveData may only use such Granted Marketing Materials in accordance with the restrictions and limitations set forth in this Clause 21. Neither this Agreement nor MoveData’s use of such Granted Marketing Materials shall convey to MoveData any right or title to said Granted Marketing Materials or affect in any way the exclusive ownership of the Client of said Granted Marketing Materials and of any registrations thereof. To this effect, MoveData shall:
21.2.1. Only use the Granted Marketing Materials in relation to the Marketing and Promotion of its’ Services and showing its success rate;
21.2.2. Not use the Granted Marketing Materials in any way that it knowingly knows is detrimental to the interests of the Client; and
21.2.3. Not represent or act as agent for Client and shall have no authority to act in the name of, or on behalf of, or enter into any agreement or other commitment on behalf of the Client, or give any condition or warranty or make any representation on the Client’s behalf.
22. Dispute Resolution Process
22.1. Any dispute arising between the parties out of or in connection with this Agreement shall be dealt with in accordance with the provisions of this clause 22.
22.2. The Dispute Resolution Process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen. The notice must include reasonable information as to the nature of the dispute.
22.3. The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
22.3.1. Within seven days of service of the notice, the Representatives of the parties shall meet to discuss the dispute and attempt to resolve it.
22.3.2. If the dispute has not been resolved within seven days of the first meeting of the Representatives, then the matter shall be referred to the managing directors (or persons of equivalent seniority). The managing directors of the Parties (or equivalent) will meet within seven days to discuss the dispute and attempt to resolve it.
22.4. The specific format for the resolution of the dispute under clause 22.3.1 and, if necessary, clause 22.3.2 will be left to the reasonable discretion of the Parties, but may include the preparation and submission of statements of fact or of position.
22.5. If the dispute has not been resolved within 14 days of the first meeting of the managing directors (or equivalent) under clause 22.3.2, then the matter shall be referred to the courts in accordance with clause 23.
23. Governing Law and Jurisdiction
This Agreement is governed by the law of New South Wales, Australia. All disputes under this Agreement not otherwise resolved by the Parties in accordance with the process set out in clause 22 (Dispute resolution) shall be subject to the exclusive jurisdiction of the courts of New South Wales, Australia.
24. Variation
24.1. No variation of the SOW shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24.2. MoveData reserves the right to amend or vary the Terms of this PSA at any time, and MoveData undertakes to inform the Client in writing not less than 60 days prior to any change taking effect. Upon expiry of such period, the Client shall be deemed to have consented to the amendment or variation unless within that period they have objected to it in writing to MoveData.
24.3. For the avoidance of doubt, notwithstanding the provisions of 24.2, any change to the terms of this PSA shall only apply to SOWs signed after the issuance or effective date of the PSA amended in line with 34.2. All existing SOWs shall be regulated by the PSA in force at their time of signature.
24.4. A copy of these Terms and any variations thereto from time to time in force will be sent to the Client in hard copy form, upon written request. However, these Terms and any future variations thereto may be published on MoveData’s website at https://www.movedata.io/legal/professional-services-agreement/.
24.5. MoveData and the Client, as the case may be, may at any time in writing mutually agree to vary these Terms or the SOW.
25. Conflict Within Agreement
25.1. In the event of any conflict or inconsistency between different parts of the Agreement, the following descending order of priority applies:
25.1.1. the Terms of this PSA (unless where expressly and specifically (actively) amended by the SOW); and
25.1.2. the SOW (when it relates to Support Services – and/or the Support Policy);
25.2. Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them. Nothing in this clause shall limit or exclude any liability for fraud.
26. General
26.1. Subject to clause 25.2, neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of the other party.
26.2. MoveData may not subcontract the performance of the whole Services without the prior written consent of the Client. The appointment of subcontractors by MoveData shall not relieve MoveData from any liability or obligation under this PSA.
26.3. MoveData shall ensure that the subcontractor complies with the terms of this PSA, and MoveData shall be liable for the acts and omissions of subcontractors and employees, officers, agents of subcontractors (including any breach of this PSA committed or caused by any subcontractor) as if they were acts and omissions of MoveData. MoveData and any subcontractors shall if requested by the Client sign and be bound by separate confidentiality agreements.
26.4. Each Party recognises that any breach or threatened breach of this Agreement may cause the other Party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to it, either Party acknowledges and agrees that the other Party is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages
26.5. This Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
26.6. No failure or delay by a Party in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
26.7. The Parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the Parties shall have, nor shall represent that they have, any authority to make any commitments on the other Party’s behalf.
26.8. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
26.9. Each Party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither Party shall be liable for any breach of this clause to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other Party (or its employees, agents and representatives).