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GapMaps Master Services Agreement Terms
Background 2.4 Deliverables
A. GapMaps carries on the business of providing the If:
Services.
(a) a ten (10) Business Days period of the delivery
B. The Customer requests to receive, and GapMaps of the Deliverables has elapsed without the
agrees to provide, the Services and the Deliverables on Customer giving notice, written or otherwise, to
the terms of this Agreement. GapMaps; or
General Terms (b) the Customer uses the Deliverables in a live or
production environment,
1. Term
the Deliverables will be deemed satisfactory and
This Agreement commences on the Commencement
accepted by the Customer, and payment of all Fees for
Date and will continue until terminated in accordance the Deliverable will be due and payable in accordance
with clause 13. with this Agreement.
2. Services 3. Customer's obligations
2.1 Generally In receiving the Services, the Customer agrees that:
(a) GapMaps will use reasonable endeavours to (a) it will pay all Fees in accordance with clause 4
perform the Services in accordance with a of this Agreement and a Services Schedule or
Services Schedule and/or a Statement of Work a Statement of Work;
in all material respects.
(b) it will, and require its Users to, use reasonable
(b) The Customer agrees that it will be responsible efforts to prevent unauthorised access to or use
for the content of all of the Customer Data and of the SaaS Services, and notify GapMaps
for complying with all applicable Laws in promptly of any such unauthorised access or
respect of the Customer Data. use;
2.2 SaaS Services (c) it is responsible for the accuracy, quality and
(a) In providing the SaaS Services, GapMaps will legality of all of the Customer Data;
use reasonable endeavours to ensure that the (d) it will ensure that only the number of Users
SaaS Services will be accessible and functional allocated in the Schedule access the Services;
on a continuous basis, subject to:
(e) it is responsible for all acts and omissions of
(i) any Scheduled Downtime;
Users as if they were the Customer's acts and
(ii) a Force Majeure Event; or omissions;
(iii) any of the events described in clause (f) it is responsible for providing the services and
11.5. equipment necessary to make use of the
Services, which includes, without limitation,
(b) GapMaps may make any repairs, internet connectivity;
modifications, additions and upgrades to the
SaaS Services, including engaging in system (g) it must use the SaaS Services only in
maintenance, as GapMaps may deem accordance with this Agreement and applicable
necessary or desirable (the Scheduled Laws;
Downtime), provided that GapMaps takes (h) it must not interfere with or disrupt the integrity
reasonable steps to advise the Customer in
or performance of the SaaS Services;
advance of any Scheduled Downtime.
(i) except as expressed otherwise in this
(c) GapMaps must use commercially reasonable Agreement, it must not resell, rent, loan, sub-
efforts ensure that the Scheduled Downtime is license, lease, distribute or license the use of,
scheduled at times to minimise disruption to the or attempt to grant any rights to, the SaaS
Customer's use of the SaaS Services. Services to any Third Party, including but not
(d) The Customer agrees and acknowledges that limited to using the SaaS Services to operate a
GapMaps may rely on Third Parties to obtain service bureau;
information necessary for the purposes of (j) it must not use the SaaS Services to store or
providing the Services and Deliverables. transmit infringing, fraudulent or otherwise
GapMaps provides no warranties regarding the unlawful material or otherwise use the SaaS
accuracy or correctness of the information it Services in a manner which is unlawful or would
receives from Third Party providers. infringe the rights of another person (including
2.3 Service Levels any Intellectual Property Rights);
In providing the SaaS Services, GapMaps will use (k) it must not introduce to the SaaS Services, or
reasonable endeavours to meet or exceed any use the SaaS Services to, store or transmit a
applicable Service Levels. GapMaps may offer Malicious Code; and
performance rebates if it does not achieve a Service (l) it must not attempt to gain unauthorised access
Level, and that performance rebate will be the to the SaaS Services or its related systems or
Customer's sole remedy for GapMaps' failure to achieve networks.
the Service Level.
4. Fees and payments (ii) operating and maintaining a process
for granting and revoking privileged
(a) Fees are exclusive of all taxes.
access to any systems used to store or
(b) GapMaps must provide the Customer with a process the Customer Data;
valid invoice for the Fees in accordance with (iii) ensuring that the SaaS Services and
the payment terms set out in a Services the equipment, premises and software
Schedule or a Statement of Work. under GapMaps' control and used in
(c) Unless a different timeframe is set out in a the provision of the SaaS Services are
Services Schedule or a Statement of Work, the updated from time to time and comply
Customer will pay all invoices within 30 days with all applicable regulatory
following receipt of the invoice. requirements;
5. GST (iv) making and maintaining regular
backups of the Customer Data in
5.1 Consideration is GST exclusive accordance with GapMaps' normal
Unless otherwise expressly stated, all prices or other data back-up procedures; and
sums payable or Consideration to be provided under or (v) not accessing the Customer Data
in accordance with this Agreement are exclusive of other than in accordance with this
GST. Agreement.
5.2 Payment of GST (c) The Customer agrees and acknowledges that
(a) If GST is imposed on any Supply made under GapMaps may be required to provide Customer
or in accordance with this Agreement, the Data to Third Parties for the purposes of
Recipient of the Taxable Supply must pay to performing its obligations under this
Supplier an additional amount equal to the GST Agreement.
payable on or for the Taxable Supply, subject (d) GapMaps must use commercially reasonable
to the Recipient receiving a valid Tax Invoice in endeavours when performing the Services to
respect of the Supply at or before the time of ensure that the Customer Data is not corrupted,
payment. deleted or subjected to unauthorised use, and
(b) Payment of the additional amount must be that no errors are introduced to the Customer
made at the same time and in the same way as Data.
payment for the Taxable Supply is required to (e) At any time during the Term and within 30 days
be made in accordance with this Agreement. after the expiry or termination of a Services
5.3 Reimbursement of expenses Schedule or a Statement of Work, the
Customer will be entitled to request in writing,
If this Agreement requires a party (the First Party) to and GapMaps will provide, or allow the
pay for, reimburse, set off or contribute to any Loss or Customer to download a copy of the Customer
outgoing (Adjustment Amount) suffered or incurred by Data in an industry standard format in relation
the other party (the Other Party), the amount required to that Services Schedule or Statement of
to be paid, reimbursed, set off or contributed by the First Work.
Party will be the sum of:
(f) After the 30-day period following termination or
(a) the amount of the Adjustment Amount net of expiry of the relevant Services Schedule or
Input Tax Credits (if any) to which the Other Statement of Work, the Customer Data may be
Party is entitled in respect of the Adjustment deleted by GapMaps.
Amount (Net Amount); and
7. Intellectual Property
(b) if the Other Party's recovery from the First Party
is a Taxable Supply, any GST payable in (a) The Customer acknowledges and agrees that
respect of that Supply, all Intellectual Property Rights of whatever
nature in the Services and Deliverables are and
such that after the Other Party meets the GST liability, it shall remain GapMaps' property, and nothing in
retains the Net Amount. this Agreement should be construed as
transferring any aspects of such rights to the
6. Data Security
Customer or any Third Party.
(a) The Customer grants GapMaps a non-
(b) GapMaps hereby grants the Customer and the
exclusive, royalty-free licence to use the
Users a non-exclusive, non-transferable,
Customer Data for the purposes of providing
revocable and royalty-free licence to:
the Services in accordance with this
Agreement, improving the Services, generating (i) use and access the Services for the
analytics, or any other use required by purposes of this Agreement during the
GapMaps from time to time. Term; and
(b) GapMaps must use reasonable commercial (ii) use and access the Deliverables and
endeavours to ensure that the Customer Data Developed Materials for the purposes
is stored and transmitted in a secure manner, of this Agreement during the Term,
including by:
subject to the Customer complying with its
(i) maintaining administrative, physical obligations under this Agreement.
and technical safeguards for
protection of the security, (c) Subject to clauses 7(a) and 7(d), immediately
confidentiality and integrity of the on the date of creation of any Deliverables and
Customer Data; Developed Materials those Deliverables and
Developed Materials will vest in GapMaps.
(d) Nothing in this Agreement affects the the Receiving Party that is necessary to comply with any
ownership of a party's Background Material. court order or applicable Law if, to the extent practicable
Each party grants the other party a non- and as soon as reasonably possible, the Receiving
exclusive, non-transferable, royalty-free licence Party:
for the Term to use a party's Background
(a) notifies the Disclosing Party of the proposed
Material solely for the purposes, and to the
extent necessary, of the other party to perform disclosure;
its obligations and exercise its rights under this (b) consults with the Disclosing Party as to its
Agreement. content; and
(e) The Customer agrees not to modify, vary, (c) uses reasonable endeavours to comply with
adapt, reverse engineer, disassemble or any reasonable request by the Disclosing Party
decompile the Services. concerning the proposed disclosure.
(f) The Customer will not, and will take reasonable 8.3 Authorised disclosure
measures to ensure that the Users do not:
(a) A Receiving Party may disclose Confidential
(i) build a competitive product or service; Information to any Related Entity, employee,
(ii) make or have made a product or agent, contractor, officer, professional adviser,
service using similar ideas, features, banker, auditor or other consultant of the
Receiving Party (each a Recipient) only if the
functions or graphics of the Services;
disclosure is made to the Recipient strictly on a
(iii) make derivative works based upon the "need to know basis" and, prior to the
Services; disclosure:
(iv) remove, modify or obscure any (i) the Receiving Party notifies the
copyright, trade mark or other Recipient of the confidential nature of
proprietary rights that appear on the the Confidential Information to be
Services; or disclosed; and
(v) "frame", "mirror" or otherwise copy any (ii) the Recipient undertakes to the
features, functions or graphics of the Receiving Party (for the benefit of the
Services. Disclosing Party) to be bound by the
obligations in this clause 8 as if the
(g) The Customer will immediately notify GapMaps Recipient were a Receiving Party in
if the Customer becomes aware that the relation to the Confidential Information
Services may infringe the Intellectual Property to be disclosed to the Recipient.
Rights of a Third Party.
(b) The Receiving Party is liable for any breach of
8. Confidential Information
this clause 8 by a Recipient as if the Recipient
8.1 Obligations of confidentiality were a Receiving Party in relation to the
Confidential Information disclosed to the
Subject to clauses 8.2 and 8.3, the Receiving Party Recipient.
must:
8.4 Breach of Confidence
(a) keep the Confidential Information confidential
and not directly or indirectly disclose, divulge or Each party must promptly notify the other party if it
communicate any Confidential Information to, becomes aware of any unauthorised access, use or
or otherwise place any Confidential Information disclosure of all or any part of the Confidential
at the disposal of, any other person without the Information and must give that other party all reasonable
prior written approval of the Disclosing Party; assistance in connection with any claim which it may
institute in connection with that unauthorised access,
(b) take all reasonable steps to secure and keep use or disclosure.
secure all Confidential Information coming into
its possession or control; 8.5 Return or destruction of Confidential Information
(c) only use the Confidential Information for the Subject to clause 6(e), immediately on the written
purposes of performing, and to the extent request of the Disclosing Party or on the termination of
necessary to perform, its obligations under this this Agreement for any reason, a Receiving Party must:
Agreement; (a) cease the use of all Confidential Information of
(d) not memorise, modify, reverse engineer or or relating to the Disclosing Party (or any
make copies, notes or records of the Related Entity of the Disclosing Party);
Confidential Information for any purpose other (b) deliver to the Disclosing Party all documents
than in connection with the performance by the and other materials in its possession or control
Receiving Party of its obligations under this containing, recording or constituting that
Agreement; and Confidential Information or, at the option of the
(e) take all reasonable steps to ensure that any Disclosing Party, destroy, and certify to the
person to whom the Receiving Party is Disclosing Party that it has destroyed, those
permitted to disclose Confidential Information documents and materials; and
under clause 8.3 complies at all times with the (c) upon delivery of the Confidential Information
terms of this clause 8.1 as if that person were a under clause 8.5(b), permanently delete that
Receiving Party. Confidential Information from all electronic
8.2 Disclosure required by Law media on which it is stored, so that it cannot be
restored.
The obligations of confidentiality under clause 8.1 do not
apply to any disclosure of Confidential Information by
9. Privacy (i) if the breach relates to goods, the
replacement or repair of the goods, the
(a) In performing this Agreement, each party must
supply of equivalent goods, or the
comply, and must make sure that each party's payment of the cost of replacing or
Representatives also comply, with all Privacy repairing such goods or acquiring
Laws in respect of all Personal Information. equivalent goods; or
(b) Without limiting clause 9(a), the Customer (ii) if the breach relates to services, the
must: supply of those services again or the
(i) collect Personal Information from all payment of having the services
relevant individuals in accordance with supplied again.
all Privacy Laws; (b) To the extent permitted by Law, and subject to
(ii) ensure that the Customer is entitled to clauses 11.2 and 11.3, a party's maximum
transfer all relevant Personal aggregate liability to the other under or in
Information to GapMaps so that connection with this Agreement or its subject
GapMaps may lawfully use, process, matter (including under a warranty or
and transfer Personal Information as indemnity), however arising (including breach
necessary to provide the Services in of contract, negligence, misrepresentation or
accordance with this Agreement; and other claim), is limited to the Fees paid or
payable by the Customer to GapMaps under
(iii) ensure that all relevant individuals this Agreement in the 12 months' immediately
have been provided with an preceding the event giving rise to the liability.
appropriate privacy collection
statement at the time that the (c) To the extent permitted by Law, GapMaps is
Customer collects their Personal not responsible for any loss or damage incurred
Information, or if that is not practical as by the Customer or any third party arising from:
soon as practical after that time. (i) a Force Majeure Event;
10. Warranties (ii) the Customer's failure to follow
(a) Each party warrants that: GapMap's or the third party supplier's
written instructions for Deliverables;
(i) it has full legal capacity and power to
enter into this Agreement and to carry (iii) the Customer’s abnormal use of the
out the transactions contemplated by Deliverables;
this Agreement; (iv) telecommunications faults, power
(ii) it owns or is licensed to use its failures or defective network or Internet
Background Material provided under connections; and
this Agreement; and (v) any acts or omissions of the Customer
(iii) it has obtained or will obtain all or any third party that may affect the
licences, permits and Third Party delivery of the SaaS Services,
authorisations necessary for it to Professional Services or Deliverables.
perform its obligations under this 11.2 Exclusion of Consequential Loss
Agreement.
Neither party shall be liable to the other party for any
(b) In addition to the above, GapMaps warrants Loss suffered or incurred by the other party in
that: connection with this Agreement that does not arise
(i) it will provide the Professional Services naturally (that is, according to the ordinary course of
using all due skill, care and diligence, things) from the event giving rise to the Loss, including
and otherwise in accordance with this but not limited to loss of reputation, loss of goodwill, lost
Agreement; and profits, lost revenue, loss of use by Users, loss or
damage to data; or failure to realise anticipated savings
(ii) it owns or is licensed to use the and loss of opportunities.
Intellectual Property Rights in the
SaaS Services. 11.3 Contribution
(c) Any representation, warranty, condition, The liability of a party for any cause of action (including
guarantee, indemnity or undertaking that would under an indemnity) will be reduced proportionally to the
be implied in, or effect, this Agreement by extent that the liability arises as a result of a breach of
legislation, common law, tort, equity, or by this Agreement by the other party.
course of performance, dealing, trade, custom 11.4 Indemnity
or usage is excluded to the maximum extent
permitted by Law. (a) GapMaps agrees to indemnify the Customer
against any and all claims, proceedings,
11. Liability and Indemnity
liabilities, Losses, awards and expenses arising
11.1 Liability out of:
(a) Where applicable Law provides any consumer (i) a Claim by a Third Party that the
guarantee, condition or warranty which cannot Services infringe the Intellectual
be excluded, GapMaps' liability for breach of Property Rights of that Third Party;
such consumer guarantee, condition or (ii) death or personal injury; and
warranty will be limited to the extent permitted
by applicable Law to, at its option: (iii) damage to tangible property.
(b) Clause 11.4(a) will not apply to the extent the procedures and relevant user documentation or
infringement is caused by: in accordance with normal business use and
requirements;
(i) the Customer failing to promptly
provide GapMaps with written notice of (d) enhancements, adaptations, translations or
such a claim against the Customer; modifications of any Deliverable by a person
other than GapMaps;
(ii) the Customer failing to give GapMaps
sole control of the defence and (e) faults, malfunction or defect in any third party
settlement of such a claim against the Material or third party software; or
Customer; or
(f) telecommunications or power failure or fault or
(iii) the Customer failing to provide defective network or internet connection
GapMaps with all reasonable affecting the Customer or its Users, or affecting
assistance in relation to the defence GapMaps provided that GapMaps is unable to
and settlement of such a claim. reasonably mitigate through its business
continuity and disaster plan.
(c) The Customer indemnifies GapMaps, and will
keep GapMaps indemnified, from and against 11.6 Duty to mitigate
any Claims, actions, damages, Losses,
Each party must use all reasonable endeavours to
liabilities (including legal costs on a full
mitigate its liability.
indemnity basis), expenses, payments that
GapMaps suffers, incurs or is liable for, whether 12. Suspension
or not contemplated by the parties, as a result
of any: (a) GapMaps may suspend the delivery of the
Services without liability to the Customer
(iv) material breach of this Agreement by where:
the Customer;
(i) a Force Majeure Event occurs which
(v) loss of, or damage to, any property materially affects GapMaps ability to
caused by any act or omission of the deliver the SaaS Program or Services;
Customer or the Customer's or
Personnel, including through
negligence; (ii) upon giving three (3) Business Days'
notice where the Customer is in breach
(vi) personal injury (including sickness or of this Agreement, such suspension to
death) caused by an act or omission of continue for so long as the breach
the Customer or the Customer's subsists.
Personnel, including through
negligence; (b) GapMaps shall give reasonable notice of any
suspension, unless, because of the urgency of
(vii) fraud, criminal offence or wilful the need, such suspension is required to put
misconduct by the Customer or the into effect immediately.
Customer's Personnel; and
13. Termination
(viii) claims by the Customer or a third party
against GapMaps arising because of 13.1 Termination
any act or omission of the Customer in Either party may terminate this Agreement or a Services
connection with this Agreement, Schedule or Statement of Work immediately upon
except to the extent that the claim written notice to the other party if:
arises because of GapMap's
negligence or breach of this (a) the other party is in material breach of this
Agreement. Agreement or a Services Schedule or
Statement of Work, and:
(d) If a claim is made by a party alleging the
Customer's or the Users' use of the Services (i) the breach is incapable of remedy; or
infringes that party's Intellectual Property
(ii) where the other party fails to remedy
Rights, GapMaps will, at its option either:
the breach within 10 Business Days of
(i) modify or replace the Services so that receiving written notice of the breach
they become non-infringing; or from the first party; or
(ii) procure for the Customer the right to (b) the other party is the subject of an Insolvency
continue using the Services. Event and is in material breach of any term of
this Agreement or a Services Schedule or
11.5 Exclusions from liability Statement of Work (irrespective of whether the
GapMaps will not be liable for Loss (including under a breach is capable of remedy).
warranty or indemnity) suffered by the Customer, or 13.2 Consequences of Termination
failure to provide the Services or any Deliverable, to the
extent caused or contributed to by any of the following: (a) Any termination of this Agreement will be
without prejudice to any right, action or remedy
(a) a use of the Services in combination with which has accrued or which may accrue in
materials or services not supplied to the favour of either party.
Customer by GapMaps;
(b) The termination of this Agreement will not
(b) a use of the Services in breach of this terminate any existing Services Schedules or
Agreement; Statements of Work unless these are
(c) operation or use of a Deliverable other than in terminated at the same time.
accordance with the recommended operating
(c) Upon termination or expiry of this Agreement by 15. Force Majeure
either party, each party must immediately
Where any failure or delay in the performance of
cease using the other party's Confidential
Information, and comply with the provisions set obligations under this Agreement is caused, directly or
indirectly, by a Force Majeure Event:
out in clause 8.5.
(d) Upon termination of this Agreement, the licence (a) the Affected Party must as soon as practicable
provided under clause 7(b) will be terminated, give the other party written notice of that fact;
and the Customer and the Users will cease (b) the Affected Party is not liable for that failure or
using the SaaS Services, Deliverables and delay;
Developed Materials.
(c) Affected Obligations under this Agreement are
(e) The Customer is entitled to make a request suspended, to the extent to which they are
under clause 6(e) for 30 days following any affected by the relevant Force Majeure Event,
expiry or termination. GapMaps must delete the for the duration of the Force Majeure Event;
Customer Data within 30 days of any such and
termination.
(d) if the Force Majeure Event continues for more
(f) This clause and clauses 6(e), 7 (with the than 90 consecutive days and while it
exception of clause 7(b)), 8, 9, 10, 11, 14, 16, continues, any party other than the Affected
and 17 inclusive will survive expiration or Party may, at its sole discretion, terminate this
termination of this Agreement. Agreement and any applicable Service
14. Dispute Resolution Schedule or Statement of Work by giving
written notice to the Affected Party and all other
14.1 Delivering a dispute notice parties (if any).
If any dispute, controversy or claim arises between the 16. General
parties arising out of, relating to or in connection with
16.1 Entire understanding
this Agreement, including any question regarding its
existence, validity or termination, a party may deliver to This Agreement contains the entire understanding
the other party a written notice which sets out: between the parties concerning the subject matter of
(a) the nature of the dispute; and this Agreement and supersedes, terminates and
replaces all prior agreements and communications
(b) the relief or remedy that the party seeks. between the parties concerning that subject matter.
14.2 Acknowledgments 16.2 No adverse construction
The parties agree that if a dispute arises out of or relates This Agreement, and any provision of this Agreement, is
to this Agreement, a party may not commence any legal not to be construed to the disadvantage of a party
proceedings relating to the dispute unless it has because that party was responsible for its preparation.
complied with the provisions of this clause 14 except to
16.3 No waiver
seek urgent equitable or interlocutory relief. The
procedures in this clause 14 will be completed within 40 (a) A failure, delay, relaxation or indulgence by a
Business Days from the giving of notice referred to in party in exercising any power or right conferred
clause 14.1. After expiry of this time, a party may on the party by this Agreement does not
commence legal proceedings relating to the dispute. operate as a waiver of the power or right.
14.3 Process (b) A single or partial exercise of the power or right
When a dispute arises between the parties in relation to does not preclude a further exercise of it or the
exercise of any other power or right under this
this Agreement, then:
Agreement.
(a) all amounts payable by the Customer to
(c) A waiver of a breach does not operate as a
GapMaps which are not in dispute must be paid
in accordance with this Agreement; waiver of any other breach.
(b) if the parties cannot resolve the dispute within 16.4 Severability
10 Business Days after notice has been given, Any provision of this Agreement which is invalid in any
then the dispute is to be referred to the jurisdiction must, in relation to that jurisdiction:
respective chief executive officers or their
nominees of each party (jointly referred to in the (a) be read down to the minimum extent necessary
remainder of this clause 14 as Chief Executive to achieve its validity, if applicable; and
Officers) for resolution; and (b) be severed from this Agreement in any other
(c) if the Chief Executive Officers cannot resolve case,
the dispute within 10 Business Days after without invalidating or affecting the remaining provisions
referral, then the parties must submit the of this Agreement or the validity of that provision in any
dispute to a mediator for consideration in other jurisdiction.
accordance with the Mediation Rules of the
Resolution Institute, which Rules are taken to 16.5 Successors and assigns
be incorporated into this Agreement.
This Agreement binds and benefits the parties and their
14.4 Costs respective successors and permitted assigns under
clause 16.6.
Each party must pay its own internal and legal costs in
relation to complying with this clause 14. The mediator's 16.6 Assignment and subcontracting
costs are to be shared equally between the parties.
(a) GapMaps can assign, novate or otherwise
transfer the benefit of this Agreement and may
subcontract any of its rights or obligations
under this Agreement. The Customer agrees to 16.12 Further assurances
execute any document necessary or desirable
A party, at its own expense and within a reasonable time
to give effect to this clause 16.6.
of being requested by another party to do so, must do
(b) The Customer cannot assign, novate or all things and execute all documents that are reasonably
otherwise transfer the whole or part of this necessary to give full effect to this Agreement.
Agreement without GapMaps' prior written
16.13 Relationship of parties
consent.
Unless this Agreement expressly provides otherwise,
16.7 No variation
nothing in this Agreement may be construed as creating
This Agreement cannot be amended or varied except in a relationship of partnership, of principal and agent or of
writing signed by the parties. trustee and beneficiary.
16.8 Governing law and jurisdiction 16.14 Costs
This Agreement is governed by and must be construed Each party must pay its own legal costs of and incidental
in accordance with the laws in force in the State of to the preparation and completion of this Agreement.
Victoria, Australia. The parties submit to the exclusive
16.15 Non merger
jurisdiction of the courts of that State of Victoria,
Australia and the Commonwealth of Australia in respect A term or condition of, or act done in connection with,
of all matters arising out of or relating to this Agreement, this Agreement does not operate as a merger of any of
its performance or subject matter. the rights or remedies of the parties under this
16.9 Notices Agreement and those rights and remedies continue
unchanged.
Any notice or other communication to or by a party under
16.16 The rule about "contra proferentem"
this Agreement:
(a) may be given by personal service, post or This Agreement is not to be interpreted against the
interests of a party merely because that party proposed
email;
this document or some provision in it, or because that
(b) must be in writing, legible and in English party relies on a provision of this document to protect
addressed to the address for service set out in itself.
page 1 or to any other address last notified by
17. Definitions and interpretation
the party to the sender by notice given in
accordance with this clause 16.9; 17.1 Definitions
(c) is deemed to be given by the sender and In this Agreement unless the context indicates a
received by the addressee: contrary intention:
(i) if delivered in person, when delivered Acceptance or Accepted means the acceptance by
to the addressee; the Customer of the relevant Deliverables.
(ii) if posted, at 9.00 am on the second Affected Obligations has the meaning given to that
Business Day after the date of posting term in the definition of Force Majeure Event.
to the addressee whether delivered or
not; or Affected Party has the meaning given to that term in
the definition of Force Majeure Event.
(iii) if sent by email transmission, and no
undelivered email message is Agreement means this agreement, its background,
received within 24 hours, at the time schedules and annexures (if any) and the relevant
and the date it was sent, Services Schedule or Statement of Work.
but if the delivery or receipt is on a day which is Background Material means any material in which the
not a Business Day or is after 4.00 pm Intellectual Property Rights are owned by, licensed to or
(addressee's time), it is deemed to have been developed by or on behalf of a party which are pre-
received at 9.00 am on the next Business Day. existing or created independently of this Agreement.
16.10 Counterparts Business Day means a day excluding a Saturday,
Sunday or public holiday in the capital city of the
This Agreement may be executed in any number of Jurisdiction.
counterparts, all of which taken together are deemed to
constitute the same Agreement. Each party consents to Commencement Date means the date the Customer
the use of electronic communications in the execution of accepts or signs a Services Schedule or Statement of
this Agreement, in accordance with the Electronic Work.
Transactions (Victoria) Act 2000 (Cth). Confidential Information means:
16.11 Operation of indemnities (a) the terms of this Agreement including
Unless this Agreement expressly provides otherwise: Information submitted or disclosed by either
party during negotiations, discussions and
(a) each indemnity in this Agreement survives the meetings relating to this Agreement;
expiry or termination of this Agreement; and
(b) information that at the time of disclosure by a
(b) a party may recover a payment under an Disclosing Party is identified to the Receiving
indemnity in this Agreement before it makes the Party as being confidential; and
payment in respect of which the indemnity is
given. (c) all other information belonging or relating to a
Disclosing Party, or any Related Entity of that
Disclosing Party, that is not generally available
to the public at the time of disclosure other than
by reason of a breach of this Agreement or
which the Receiving Party knows, or ought to the extent that the act, event or cause directly results
reasonably to be expected to know, is in a party (Affected Party) being prevented from or
confidential to that Disclosing Party or any delayed in performing one or more of its material
Related Entity of that Disclosing Party, obligations under this Agreement, excluding any
obligation to make a payment (Affected Obligations).
but excludes information which:
Government Agency means any government or any
(d) prior to the execution of this Agreement is in the public, statutory, governmental (including a local
public domain; government), semi-governmental or judicial body, entity,
(e) hereafter becomes part of the public domain department or authority and includes any self-regulatory
other than as a result of an unauthorised organisation established under statute in the relevant
disclosure by either party to this Agreement; jurisdiction.
(f) is or becomes available to a party to this GST Act means A New Tax System (Goods and
Agreement from a Third Party lawfully in Services Tax) Act 1999 as amended from time to time,
possession of such information and who has and the expressions Consideration, GST, Input Tax
the lawful power to disclose such information to Credit, Recipient, Supply, Supplier, Tax Invoice and
the party on a non-confidential basis; or Taxable Supply have the meanings given to those
expressions in the GST Act.
(g) is rightfully known by a party to this Agreement
(as shown by written record) prior to the date of Initial Term means the initial term set out in a Services
disclosure under this Agreement. Schedule or a Statement of Work.
Customer Data means the Customer's data or any data Insolvency Event means any one or more of the
supplied by or on behalf of the Customer that is hosted following events occurring in respect of a person:
on the SaaS Services or which is created by processing (a) a resolution is passed for the winding up of that
in the SaaS Services. person (other than for the purposes of
Defect means any material non-conformance of the reconstruction or amalgamation, which, in the
Deliverables with the Acceptance Criteria. case of a party, is on terms which have been
previously approved in writing by the other
Deliverables means a task to be completed or an item party);
to be supplied to the Customer by GapMaps or on
GapMaps' behalf under this Agreement in the course of (b) a liquidator, provisional liquidator or receiver or
providing the Services as described in a Services receiver and manager, voluntary administrator,
Schedule or a Statement of Work and includes the SaaS or administrator of a deed of company
Services and any Developed Materials. arrangement is appointed to all or any part of
the property of that person;
Developed Material means any information,
technology, software, reports, results, processes, plans, (c) a receiver, receiver and manager, voluntary
discoveries, inventions, Intellectual Property Rights or administrator or an administrator of a deed of
other material (whether in electronic or material form) company arrangement, is appointed to, or a
developed by or on GapMaps' behalf as a result of, or in mortgagee takes possession of, all or any part
the course of providing the Services, but does not of the business or assets of that person;
include any Background Materials or the SaaS Services. (d) that person makes any composition or
Disclosing Party means the party to whom information arrangement or assignment with or for the
belongs or relates. benefit of its creditors;
Fees means the fees for the Services as set out in a (e) that person or any creditor appoints a voluntary
Services Schedule or a Statement of Work. administrator or a resolution is passed for that
person to execute a deed of company
Force Majeure Event means an event beyond the arrangement;
reasonable control of a party being:
(f) that person ceases, or threatens to cease to
(a) an act of God, peril of the sea, accident of carry on its business;
navigation, war, sabotage, riot, act of terrorism,
insurrection, civil commotion, national (g) that person becomes unable to pay its debts as
emergency (whether in fact or Law), martial and when they become due; or
law, fire, lightning, flood, cyclone, earthquake, any event analogous or equivalent to the events
landslide, storm or other adverse weather described in paragraphs (a) to (g) occurs in respect of
conditions, explosion, power shortage, that person.
epidemic, pandemic, quarantine, radiation or
radioactive contamination; Intellectual Property Rights means all present and
future intellectual and industrial property rights
(b) an action or inaction of a Government Agency, conferred by statute, at common law or in equity and
including expropriation, restraint, prohibition, wherever existing, including:
intervention, requisition, requirement, direction
or embargo by legislation, regulation, decree or (a) patents, inventions, designs, copyright, trade
other legally enforceable order; or marks, brand names, product names, domain
names, database rights, rights in circuit layouts,
(c) termination or withdrawal by Third Party
plant breeder's rights, know how, trade secrets
providers of any of the products, facilities or and any other rights subsisting in the results of
services used to provide the Services, or other intellectual effort in any field, whether or not
service disruptions involving hardware, registered or capable of registration;
software of power systems within such party’s
possession or reasonable control and denial of (b) any application or right to apply for registration
service attacks, of any of these rights;
(c) any registration of any of those rights or any Scheduled Downtime has the meaning given to that
registration of any application referred to in term in clause 2.2(b).
paragraph (b); and
Service Levels means any minimum levels of
(d) all renewals, divisions and extensions of these performance or quality with respect to the SaaS
rights. Services specified in a Services Schedule or a
Statement of Work.
Jurisdiction means the State of Victoria, Australia.
Services means the SaaS Services and the
Law means:
Professional Services.
(a) principles of law or equity established by Services Schedule means a services schedule agreed
decisions of courts; by the parties in writing for the provision of the SaaS
(b) statutes, regulations or by-laws of the Services in the form specified by GapMaps from time to
Commonwealth of Australia, or any State or time.
Territory of the Commonwealth of Australia or a Statement of Work means a statement of work agreed
Government Agency; and by the parties in writing for the provision of Professional
(c) requirements and approvals (including Services in the form specified by GapMaps from time to
conditions) of the Commonwealth of Australia time.
or any State or Territory of the Commonwealth Term means:
of Australia or a Government Agency that has
the force of law. (a) in respect of this Agreement, the period from
the Commencement Date until termination in
Loss means any loss, damage, cost or expense.
accordance with clause 13; and
Malicious Code means any virus, Trojan horse, worm, (b) in respect of a Service Schedule or Statement
logic bomb or other malicious code that infect, of Work, the Initial Term together with any
manipulate, modify, deny, corrupt or inhibit the operation Renewal Term.
of the SaaS Services.
Third Party means a party other than the Customer or
Personnel means any individuals, employees, agents,
GapMaps.
consultants, service providers or subcontractors of an
entity from time to time. User means any person authorised by the Customer to
access and use the Services.
Personal Information means information or an opinion,
whether true or not, and whether recorded in a material 17.2 Interpretation
form, electronic form or otherwise, about an identified
In this Agreement, unless the context requires
individual or an individual who is reasonably identifiable,
otherwise:
and includes anything that is defined as personal
information or as sensitive information in the relevant (a) the singular includes the plural and vice versa;
Privacy Laws.
(b) a gender includes the other genders;
Privacy Law means any applicable Law, statute,
regulation, ordinance, code, standard or requirements of (c) the headings are used for convenience only
any government, governmental or semi-governmental and do not affect the interpretation of this
body which relates to privacy or health information, Agreement;
including without limitation the Privacy Act 1988 (Cth) (d) other grammatical forms of defined words or
and the Australian Privacy Principles under that Act, the expressions have corresponding meanings;
Spam Act 2003 (Cth) and the Do Not Call Register Act
2006 (Cth), and any Australian (including State or (e) a reference to a document includes the
Territory) legislation from time to time in force which document as modified from time to time and
relates to or affects privacy rights or Personal any document replacing it;
Information.
(f) a reference to a party is to a party to this
Professional Services means the professional Agreement and a reference to a party to a
services that are made available by GapMaps to the document includes the party's executors,
Customer from time to time, as described in a Statement administrators, successors and permitted
of Work. assigns and substitutes;
Receiving Party means the party to whom information (g) if something is to be or may be done on a day
is disclosed or who possesses or otherwise acquires that is not a Business Day then it must be done
information belonging or relating to a Disclosing Party. on the next Business Day;
Recipient has the meaning given to that term in clause (h) the word "person" includes a natural person,
8.3(a). partnership, body corporate, association,
governmental or local authority, agency and
Related Entity has the meaning given to that term in the any other body or entity whether incorporated
Corporations Act 2001 (Cth). or not;
Renewal Term means the renewal term set out in a (i) the word "month" means calendar month and
Services Schedule or a Statement of Work. the word "year" means 12 months;
Representative means a party's directors, officers, (j) the words "in writing" include any
employees, agents, contractors or subcontractors. communication sent by letter, facsimile
SaaS Services means the software as a service which transmission or email or any other form of
is a data analysis and mapping platform and support communication capable of being read by the
services, as described in a Services Schedule. recipient;
(k) a reference to a thing includes a part of that (q) any agreement, representation, warranty or
thing; indemnity in favour of two or more parties
(whether those parties are included in the same
(l) a reference to all or any part of a statute, rule, defined term or not) is for the benefit of them
regulation or ordinance (statute) includes that jointly and severally; and
statute as amended, consolidated, re-enacted
or replaced from time to time; (r) any agreement, representation, warranty or
indemnity by two or more parties (whether
(m) wherever "include", "for example" or any form
those parties are included in the same defined
of those words or similar expressions is used, it term or not) binds them jointly and severally.
must be construed as if it were followed by
"(without being limited to)"; 17.3 Conflicting provisions
(n) money amounts are stated in Australian This Agreement is comprised of these terms and
currency unless otherwise specified; conditions, a Statement of Work, a Services Schedule
and annexures. The Agreement sets out the terms and
(o) a reference to time is to the time in the capital conditions that apply to the delivery of the Services or
city of the Jurisdiction; the Deliverables by GapMaps to the Customer. If there
(p) a reference to any agency or body, if that are any inconsistencies between the documents
agency or body ceases to exist or is comprising the Agreement, the following order of
reconstituted, renamed or replaced or has its precedence will apply:
powers or functions removed (defunct body), (a) these terms and conditions; and
means the agency or body that performs most
closely the functions of the defunct body; (b) a Services Schedule or a Statement of Work.