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Master Services Agreement
For Comtrac Service(s)
Published: | In Effect: to Current
For Agreements prior to the Published Date, please review the Archive

INTRODUCTION AND GENERAL TERMS

Please read this Agreement carefully before you sign. We draw your attention to the following:

  • ’Indemnities from the Customer’, which sets out instances in which the parties agree to pay each others’ costs’

  • Cap on the Parties’ Liability’ which sets out exclusions and limitations to our liability under this Agreement’

  • Usage-Dependent Licensing Costs’ which explains that if your usage of Azure Storage or AI services exceeds the included allowances, we may renegotiate and increase your fees accordingly’

  • Fees and Charges’ - Any fees paid in advance cannot be recovered

  • Optional: ‘Termination for Convenience’ – We may terminate this Agreement with 30 days’ notice to you.

This Agreement does not intent to limit your rights and remedies at Law, including any of your rights under Australian Consumer Law.

Comtrac and Comtrac Services

Comtrac is the operating entity of Investigation Management Australia Pty Ltd (IMA), an Australian Private Company limited by Shares registered to Level 25 of 307 Queen Street, Brisbane Queensland Australia 3000, under ACN 159 058 241. Comtrac provides software, information security and cloud infrastructure services for government and regulated industries (Comtrac Services).

Comtrac Trust Portal

Comtrac hosts and maintains the Comtrac Trust Portal as a centralised location for its customer facing legal, compliance and security documents. Material found on the Comtrac Trust Portal will always be the most current version, so it is important material as it relates to legal, compliance and security at Comtrac should always be sourced from there when required, as printed or saved versions may be out-dated.

Definitions

In this MSA, unless the contrary intention appears, terms have the meaning given to them in the Comtrac Definitions Schedule.

Disputes & Contact

Any disputes are to be raised in accordance with the dispute resolution process outlined in this MSA. Other inquiries relating to this MSA should be directed to trust@comtrac.com.au.

Master Services Agreement

The following documents constitute the MSA:

  • The document titled "Master Services Agreement" (this document);

  • Comtrac's Order Form(s) or Proposal, as applicable;

  • Comtrac Definitions Schedule;

  • Comtrac's Service Level Agreement;

  • Comtrac's Information & Cybersecurity Standards;

  • Comtrac Cloud Environments;

  • Comtrac's Data Processing Agreement; and

  • Comtrac's Acceptable Use Policy For Comtrac Services.

The Customer

The Customer wishes to engage Comtrac to provide the Comtrac Services to the Customer and to the Personnel authorised by the Customer to access and use the Comtrac Services on the terms set out in this MSA.

Interpretation

In this MSA, unless inconsistent with the context or subject matter:

  • Refences to one gender includes the others;

  • The singular includes the plural, and the plural includes the singular;

  • A person includes any other Legal Entity;

  • A party includes the party's heirs, executors, administrators, successors and permitted assigns and is for their benefit and binding upon them;

  • A thing includes the whole and each part of it separately;

  • A statute, regulation, code or other law or a provision of any of them includes:

  • Any amendment or replacement of it;

  • Another regulation or other statutory instrument made under it or made under it as amended or replaced;

  • Dollars mean Australian dollars unless otherwise stated;

  • "Including" and similar expressions are not words of limitation;

  • Headings are for reference purposes only and must not be used in interpretation;

  • Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

  • A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement;

  • If an act must be done on a specified day which is not a Business Day or a time period expires on a day which is not a Business Day, it must be done or expires instead on the next Business Day;

  • Where time is to be reckoned from a day or event, the day or the day of the event must be excluded;

  • A reference to a month means a calendar month;

  • References to time are to local time in Queensland;

  • References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax; and

  • If a party consists of more than one person, this MSA binds each of them separately and any two or more of them jointly. An obligation, representation, or warranty in favour of more than one person is for the benefit of them separately and jointly and enforceable by and against them jointly and severally. A party which is a trustee is bound both personally and in its capacity as a trustee.

Agreement formation

Upon the Customer executing an Order Form a contract between the parties will be formed on the terms of this MSA.Each Order Form constitutes a separate MSA. However, where a Customer has entered into multiple Order Forms, a breach of a term of any MSA to which the Customer is a party is automatically a breach by the Customer of every MSA to which it is a party.

Commencement and Term

The MSA commences on the Commencement Date specified in the Order Form and shall continue until the end date specified in the Order Form or the date it is terminated in accordance with the terms of this MSA.

Order Forms

All Order Forms for Comtrac Services submitted by the Customer must be sent to Comtrac in the format specified by Comtrac or such other format as Comtrac may reasonably require to the email address nominated by Comtrac from time to time. A MSA is formed upon execution of an Order Form by both parties and constitutes a separate binding contract on the terms and conditions set out in this MSA and the relevant Order Form.

Each Order Form will be allocated a unique Order Form number and must relate to one tenancy in a single Comtrac Customer Environment.

An Order Form will not be binding on Comtrac until such time as Comtrac communicates acceptance of the Order Form to the Customer.

Comtrac Obligations

Comtrac will provide the Comtrac Services to the Customer in accordance with this MSA. Comtrac will cooperate with the Customer to provide such reasonable assistance as the Customer may require in order to access and use the Comtrac Services. Comtrac will provide but may amend its Acceptable Use Policy and End User License Agreement in respect of Comtrac Services by issuing the new version of the AUP and/or the MSA to the Customer by written notice given in accordance with the "Notices" provisions of this MSA. The Customer must ensure that the new versions of the AUP and/or the MSA are given to the Customer's Personnel promptly.

No data transmission over the internet can be guaranteed as totally secure. Whilst Comtrac strives to protect Customer Data, Comtrac does not warrant the security of the Customer Data. Accordingly, the Customer Data input or transferred through the Comtrac Systems is at the Customer's own risk. Comtrac will take reasonable steps to preserve the security of such Customer Data and will maintain security practices that are at least as stringent as the minimum-security practices described in the Comtrac Statement of Commitment below and will provide the specific security services as set out in the Order Form(s) and this MSA. Comtrac will conduct and maintain its own regular backups of the Customer Data in the Comtrac System. Comtrac will perform all Comtrac Services in accordance with applicable Law.

Statement of Commitment to Information & Cybersecurity

Comtrac commits to maintaining the security standards defined in the Comtrac Information & Cybersecurity Standards document. Comtrac will meet, at a minimum, the security standards specified in the Comtrac Information & Cybersecurity Standards for all Comtrac Services under this MSA. Comtrac will endeavour to continually enhance security measures to align with evolving industry best practices.

Customer Obligations

Security obligations

The Customer must, at its own cost:

  • Maintain security within its environment in accordance with Comtrac's Information & Cybersecurity Standards;

  • Not do anything which may threaten the security of the Comtrac Services, Comtrac System or Comtrac Software or adversely affect Comtrac's reputation;

  • Where the Customer is an Agency, also comply with the Agency Provisioning Guide and any other security requirements agreed to by Comtrac and the Customer as detailed in the MSA;

  • Where Comtrac Services are accessed and used from locations within Australia, ensure that the Comtrac Services comply with all relevant requirements of the PSPF as amended or replaced from time to time and its Protective Security Protocols, including the Protective Security Governance Guidelines - Security of outsourced services and functions and the Australian Government ISM or the equivalent requirement(s) in the jurisdiction where the Customer's head office is located;

  • Where Comtrac Services are accessed and used from locations outside of Australia, ensure that the Customer's access to and use of (including by the Customer's Personnel) the Comtrac Services meets the equivalent requirement(s) in the jurisdiction where the Customer is located. These security obligations extend to all mandated requirements, including Law, policy, standards, and best practice;

  • Notify Comtrac in writing as soon as possible if the Customer becomes aware of any incident, event or circumstance that could have an adverse effect on the security of sensitive, protected, secret, top-secret classified information or Confidential Information in respect of the Comtrac System or the Comtrac Services; and

  • The Customer must not and must ensure that its Personnel do not:

- Reverse engineer, decompile or disassemble the Comtrac System or the Comtrac Software;

- Copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Comtrac System or the Comtrac Software or any content within them;

- Modify, create derivative works from, alter, adapt, disassemble, reverse engineer, decompile, derive or attempt to derive the source code from or amend the Comtrac System or any content within the Comtrac System in any way.

Data, Information Classification and Access

The Customer acknowledges and agrees that it will classify and protect the Customer Data, Comtrac Data any other data and information processed in accessing and using the Comtrac Services in accordance with applicable Law, policy, standards, and best practice. The Customer is solely responsible for any Customer Data it supplies or uploads to the Comtrac System and the Customer acknowledges that Comtrac acts as a passive conduit for any distribution and publication of the Customer Data and as such has no control over, and does not ensure, guarantee or provide any warranty or indemnity in respect of the quality, legality, accuracy, completeness or otherwise of and Customer Data.

Where the Customer is an Australia Agency, the Customer shall comply with Australian Government classification requirements under the PSPF, including:

  • Identify information holdings (all data and information held and processed);

  • Assessing the sensitivity and security classification of information holdings; and

  • Implementing operational controls for these information holdings proportional to their value, importance, and sensitivity.

Where the Customer is a foreign Agency, the Customer must comply with the equivalent requirement(s) under the Laws in the jurisdiction where the Customer is located.

The Customer acknowledges and agrees that it must ensure that each of its Personnel involved in accessing and using the Comtrac Services and Comtrac Systems, and in supporting and maintaining the Comtrac Services and Customer Systems that facilitate the Customer's use of the Comtrac Services and Comtrac Systems, or in accessing and using data contained in the Contract Systems, hold, and maintain the necessary security clearances, as mandated by the Customer's data classification standards for accessing Customer data. This obligation encompasses all individuals engaged in accessing and utilising the Comtrac Services and Comtrac Systems, as well as those tasked with supporting and maintaining the Comtrac Services and Customer Systems necessary for the Customer's efficient use of the Comtrac Services and Comtrac Systems. Additionally, the Customer acknowledges it is responsible for all expenses related to obtaining and maintaining the essential security clearances for its such persons unless otherwise agreed upon through mutual written consent with Comtrac.

Relationship Management

The relationship between the parties under the MSA must be managed as follows:

  • Each party must appoint a Relationship Representative to represent the party under this MSA;

  • The Relationship Representatives must meet on a regular basis (to be agreed, but no less that once every 12 months during the Term, or as reasonably requested by either party), to discuss the operation of this MSA and any other relationship issues that either party wishes to address; and

  • The Customer must provide Comtrac with reports and other information relevant to the performance of the Comtrac Services and other matters under this MSA, as reasonably requested by Comtrac and as detailed in Comtrac's Information & Cybersecurity Standards.

Each party must ensure that suitably qualified personnel and resources are made available to ensure that the above requirements are complied with to allow Comtrac to deliver the Comtrac Services efficiently and effectively.

Commencement Plan and Assistance

Before commencing the Comtrac Services, Comtrac will prepare a detailed plan setting out a description of all activities to be carried out as part of providing the Comtrac Services, including under the Agency Provisioning Guide where the Customer is an Australian Agency, providing a timetable for the completion of those activities, and the parties will together approve the plan.

The Customer must, at its own cost:

  • Make the Customer's Personnel available to assist Comtrac in the provision, delivery and management of the Comtrac Services in the manner set out in this MSA or as otherwise agreed in writing between Comtrac and the Customer from time to time; and

  • Give Comtrac access to the Customer Systems and the Customer Owned Environment as reasonably necessary for the provision, delivery and management of the Comtrac Services in accordance with this MSA.

Compliance

In acquiring the Comtrac Services, the Customer must comply with, and must ensure that its Personnel comply with:

  • All applicable Laws;

  • Any reasonable directions and instructions consistent with the MSA which may be given by Comtrac to the Customer or its Personnel from time to time;

  • The security standards and requirements set out in Comtrac's Information & Cybersecurity Standards and any applicable systems and technical requirements;

  • Workplace health & safety requirements and WHS Laws and Privacy Laws; and

  • Corporate or Agency policies or standards which may be notified by Comtrac to the Customer from time to time, which are imposed by Law or regulators, or are required by the Customer.

Location

Comtrac will provide the Comtrac Services from Australia and, where reasonably necessary for support and resilience, from other locations notified on the Trust Portal. Comtrac will provide the Comtrac Services to the Customer and store and Process the Customer Data at the "Customer Data Location" specified by the Customer in the Order Form. The Processing of Customer Data is subject to the Data Processing Agreement. Remote access for support: Personnel may access Customer Data from outside the Customer Data Location solely for support, monitoring, security, and maintenance, subject to the security and privacy controls in this MSA and the DPA.

Defects

If at any time the Customer believes there is a defect in the Comtrac Software, the Customer must report this to Comtrac as soon as possible. Comtrac must rectify any defect at its own cost, subject to the following:

Where:

  • The Customer notifies Comtrac of a perceived defect and no defect is detected by Comtrac in the Software; or

  • Where the defect is caused by the Customer or the Customer's Personnel, including, without limitation, a failure by the Customer or its Personnel to use the Comtrac Software in accordance with the documentation, instructions or advice provided to the Customer, its Personnel by Comtrac,

the Customer will be responsible for any costs, fees and outlays (including costs of time spent by contracts and employees) incurred by Comtrac in attempting to diagnose the perceived defect or in rectifying the defect caused by the Customer or its Personnel and must pay to Comtrac upon demand as a liquidated debt any such costs incurred by Comtrac.

Service Levels

Compliance with Service Levels

Comtrac will provide the Comtrac Services so as to meet the service levels detailed in the Service Level Agreement or as varied and agreed to by the parties from time to time in writing.

Consequences of Service Level Default

Apart from rights and remedies that the Customer may have under Law in relation to Non-excludable Rights, the Service Credits stated in the Service Level Agreement are the Customer's sole and exclusive remedy for Comtrac's failure to meet those service guarantees for which service credits apply.

To the extent permitted by Law, the parties acknowledge and agree that Comtrac gives no representations or warranties nor has any obligations (including anything under the Australian Consumer Law) in respect of the Comtrac Services performed or the performance of the Comtrac Systems. Where Non-excludable rights apply under Australian Consumer Law, Comtrac's Services and Comtrac's Systems come with guarantees that cannot be excluded by Australian Consumer Law.

Customer’s Other Obligations

Customer's Obligations

The Customer acknowledges and agrees that:

  • It must procure and maintain infrastructure which enables Comtrac to properly and efficiently perform its obligations under this MSA;

  • It must allow Comtrac access to the Customer Systems and Hardware at times required by Comtrac, the Customer Owned Environment and its premises to enable Comtrac to perform any its obligations under this MSA;

  • It must procure and maintain external internet access and maintain remote (virtual private network) access for Comtrac;

  • Upon implementation in the Customer's Comtrac Environment, Minor Revisions and Major Revisions will become part of the Comtrac System and will be subject to the provisions of this MSA;

  • Comtrac reserves the right to discontinue any Revision, Minor Revision or Major Revision or components of any Revision, Minor Revision or Major Revision made available to the Customer immediately and without notice provided that the Comtrac System continues to operate as intended;

  • Notwithstanding any provision of this MSA to the contrary, any support to be provided by Comtrac may be limited to support for the Current Version of the Comtrac System at that point in time and the version immediately preceding Current Version of the Comtrac System only;

  • It must appoint at least one System Owner for the Comtrac Services which are deployed in the Customer Owned Environment to maintain overall responsibility of the Customer's obligations under this MSA. System owners may delegate the day-to-day management and operation of their Systems, including Comtrac Services to system managers at their own risk and discretion;

  • It is responsible for the acts and omissions of all its Personnel accessing and using the Comtrac Services and Comtrac Systems;

  • Its contractors are contractors of the Customer, and will not be or be deemed to be employees or contractors of Comtrac, and will at all times remain within the direction and control of the Customer;

  • Before any Personnel commence accessing or using any Comtrac Services, the Customer must ensure all such persons have successfully passed the necessary probity checking requirements of this MSA and/or the Agency, and the Customer must bear its own costs of that;

  • Before any Customer Personnel access Customer Data or Personal Data, the Customer must ensure that such person is made aware of, and is required to comply with, the requirements in Comtrac's Information & Cybersecurity Standards and the terms of this MSA;

  • All Customer Personnel who will have access to the Comtrac Services, Comtrac Systems Confidential Information and Personal Data must have committed themselves to maintaining its confidentiality and complying with applicable privacy Laws and codes of conduct and ethics and the terms of this MSA;

  • It is solely responsible for the payment of remuneration to, the maintenance and cost of workers' compensation for, and compliance with and the costs of all other statutory, award, contractual or other legal obligations in respect of, its Personnel;

  • It will use all reasonable endeavours to ensure that all Personnel involved in the maintenance and support of the Comtrac Services on the Customer's behalf are properly trained (including in the correct handling of Confidential Information and Personal Data), qualified, suitably skilled and inducted; that all Personnel involved in the access and use of the Comtrac Services and Comtrac Systems are properly trained (including in the correct handling of Confidential Information and Personal Data), qualified, suitably skilled, and inducted; and that all Personnel involved in the access and use of the Comtrac Services and Comtrac Systems fully understand and comply with Laws relating to monitoring, surveillance, and the collection of evidence;

  • To the extent necessary to ensure the Customer's ability to access and use the Comtrac Services in accordance with the MSA, the Customer must promptly replace any departing Personnel with Personnel who have comparable qualifications and experience, and otherwise comply with the requirements of this MSA;

  • It will, at Comtrac's request, remove any of its Personnel and/or Users from accessing and using the Comtrac Services and Comtrac Systems (including as the Relationship Representative or System Owner) where, any such person has been found to have recklessly, negligently or intentionally not complied with the requirements under the MSA, or has engaged in any serious misconduct in Comtrac's opinion acting reasonably;

  • It must not permit or allow any person other than Comtrac or its nominated representatives to activate, install, modify or otherwise work on or with the Comtrac Systems at any point in time. The Customer must ensure that its Personnel are aware of and comply with this clause;

  • It must, if any act or omission of the Customer or its Personnel not expressly permitted in this MSA causes in the reasonable opinion of Comtrac a degradation, corruption, interference, delay or any other problem with the Comtrac System or Comtrac Services, pay to Comtrac upon demand as a liquidated debt any costs incurred by Comtrac or its Personnel for repairing or rectifying such degradation, corruption, interference, delay or other problem; and

  • It and its Personnel access and use the Comtrac Services, Comtrac Systems and Comtrac Customer Environment at its own risk.

Subcontracting

The Customer must not subcontract the performance of all or any part of its obligations under the MSA without Comtrac's prior written consent.

Where the Customer proposes to subcontract the performance of any or all of its obligations under this MSA, the Customer must ensure that:

The contractor is of good financial standing and reputation;

The contract (or proposed contract) between it and the subcontractor is consistent with all relevant terms of this MSA, including obligations arising under WHS Laws and Privacy Laws, including mandatory data breach requirements under applicable Law;

The Customer legally binds any subcontractor appointed by it through suitable written legal agreement; and

The subcontractor has been the subject of adequate due diligence by the Customer to ensure that the subcontractor is capable of performing all of the Customer's obligations that are subcontracted to it and providing the level of protection for Confidential Information and Personal Data that the Customer is required to provide under this MSA.

The Customer will be responsible for all acts and omissions of its subcontractors as if they were acts or omissions of the Customer and the Customer must indemnify Comtrac against any Claim and Loss suffered or incurred by Comtrac arising out of or in connection with the acts or omissions of the Customer subcontractors. The entry by the Customer into a subcontract will not relieve the Customer from liability for performance of its obligations under this MSA.

Anti-Money Laundering, Anti-Terrorism and Export Controls

In using the Comtrac Services, the Customer must comply with, and ensure that the provision of the Comtrac Services do not cause Comtrac to breach: any modern slavery, anti-bribery, anti-corruption, anti-money laundering or anti-terrorism laws of Australia to which Comtrac may from time to time be subject; any anti-money laundering or anti-terrorism laws enacted outside Australia, to which Comtrac may from time to time be subject; or any export control laws.

Workplace Health and Safety (WHS)

In using the Comtrac Services, the Customer must comply with, and maintain an up-to-date work health and safety management system in accordance with all applicable WHS Laws. When attending Customer premises, Comtrac will comply with any onsite induction processes required by the Customer and notified to Comtrac is writing.

Public Governance, Performance and Accountability Act 2013

Where the Customer is an Australian Agency, the Customer must comply with the Public Governance, Performance and Accountability Act 2013 (Cth).

Systems and Software

Customer Systems

The Customer is responsible, at its own expense, for establishing, providing, maintaining, and supporting any Customer Systems and Hardware which are necessary to access and use the Comtrac Services and floor the Customer to perform its other obligations under the MSA (including replacing hardware and parts, and ensuring ongoing compatibility with other systems and software).

The Customer must ensure that its Customer Systems and Hardware are suitable and available at the required times in order for Comtrac to provide the Comtrac Services as and when required by this MSA. If the Customer Systems and Hardware are not as required or available when required by Comtrac in order for Comtrac to perform the Comtrac Services, Comtrac will not be in breach of this MSA for an inability to provide the Comtrac Services as required.

Mobile Device Security – Shared Responsibility

If you access the Comtrac system using a mobile device (including smartphones and tablets), you acknowledge and agree that:

  • You are responsible for ensuring that any mobile device used to access the system is secured against unauthorised access, loss, or misuse, including through the use of a PIN, biometric authentication, or equivalent security controls.

  • Accessing, processing, or storing PROTECTED or sensitive data via a mobile device may only occur in accordance with your organisation’s mobile device security policies and any contractual obligations that apply to the handling of such data.

  • You must - The device is managed and monitored in accordance with appropriate security controls (e.g. MDM, encryption, remote wipe), and - You are authorised by your organisation and Comtrac to do so.

not download, store, or cache PROTECTED informationon any mobile device unless:

  • Comtrac enforces conditional access controls to limit the exposure of PROTECTED data on mobile platforms; however, ultimate responsibility for secure use of the device rests with the end user and their employing organisation.

By continuing to use the Comtrac system, you accept your obligations under this shared responsibility model and agree to immediately report any suspected loss, compromise, or unauthorised use of your device.

Third-Party Software

The Customer acknowledges and agrees that the Comtrac Systems may contain a number of links to other internet applications which are operated by third parties, and Comtrac is not responsible either directly or indirectly for any Loss caused by use of or reliance on those linked applications. Comtrac cannot guarantee that the Customer Data remains solely in the hands of those recipients of that data and Comtrac will not be responsible or liable for any Loss incurred by the Customer, its Personnel or any other person in this regard. The Customer must inform Comtrac immediately of any breaches of security or unauthorised use of the Customer Data.

Subject to the clause of this MSA headed "Third Party Costs", where Comtrac provides or procures the third-party software or services, Comtrac will be responsible for ensuring that the Customer's use of that software as contemplated by the MSA is properly licensed at all times, except where the Customer contracts directly with the third-party software provider in respect of its use of the software as part of the Comtrac Systems or otherwise.

Access and Assistance

If requested by Comtrac, the Customer will provide Comtrac with reasonable information about, and access to, the Customer's premises and Customer Systems to the extent reasonably necessary to allow Comtrac to provide the Comtrac Services in accordance with the terms of this MSA.Comtrac must:

  • When accessing or using the Customer's premises and Customer Systems (or any part of them) comply with the health, safety and security policies and procedures notified to Comtrac by the Customer in writing;

  • Not interfere with or inhibit any of the Customer's other contractors, consultants, and suppliers in exercising any rights they have to access and use the Customer's premises and Customer Systems except as reasonably necessary for Comtrac to provide the Comtrac Services; and

  • Ensure that all its personnel who need to access the Customer's premises and Customer Systems in order to provide the Comtrac Services are aware of, and comply with, the Comtrac obligations in respect of the Customer's premises and Customer Systems under this MSA.

Fees and Charges

The Customer agrees to pay the Fees and Charges for the Comtrac Services. For the avoidance of doubt, the Fees and Charges payable by the Customer may include Third Party Costs and the Customer hereby agrees to pay to Comtrac the Third Party Costs.

The Customer acknowledges and agrees that any Fees and Charges paid in advance are non-refundable. All Fees and Charges must be paid without deduction or set off.

Revisions, Major Revisions and Minor Revisions are included in the Fees and Charges, unless otherwise specified in the Order Form. Any bespoke Major Revision or Minor Revisions specifically requested by the Customer outside of those being developed by Comtrac, will be charged to the Customer as the rates agreed between the parties at that time.

Increases to Fees and Charges

The Customer acknowledges and agrees that each of the Fees and Charges specified in the Order Form will be subject to a CPI Review each year on the anniversary of the Commencement Date.

"CPI Review" means a review of each of the Fees and Charges specified in the Order Form calculated by using the formula:

XY/Z

where:

  • X = Consumer Price Index figure for the quarter ended immediately prior to the commencement of the next year of the Contract Term for which the Fee/Charge is being calculated;

  • Y = The Fee/Charge payable during the year immediately preceding the next year of the Contract Term for which the Fee/Charge is being calculated; and

  • Z = Consumer Price Index figure for the quarter ended immediately prior to the commencement of the year of the Contract Term immediately preceding the next year of the Contract Term for which the Fee/Charge is being calculated.

"Consumer Price Index" means the All Groups Consumer Price Index published from time to time by the Australian Bureau of Statistics in relation to the city of Brisbane.

Usage-Dependent Licensing Costs

The Comtrac SaaS licensing cost is directly influenced by usage levels in two primary areas: Azure Storage and Azure AI services. The standard licensing fee includes allowances for up to 1TB of Azure Storage and a specified quota for Azure AI services, as outlined in the agreed-upon license terms. Should the Client's usage of Azure Storage exceed 1TB or if the Azure AI service costs surpass the quoted licensing allowances, Comtrac reserves the right to renegotiate the licensing fees to accommodate the increased usage levels.

Any additional licensing costs arising from increased usage will be calculated based on Azure's publicly published rates at the time of the overage. Comtrac will provide the Client with access to the Azure pricing calculator for review and acceptance prior to any adjustments to the licensing cost. Comtrac will engage in good faith discussions with the Client to establish mutually acceptable terms for the continued provision of services.

GST

Except as expressly stated, all Fees and Charges are GST exclusive.

In relation to any consideration payable or to be provided under or in connection with the MSA that is expressed to be inclusive of GST, in the event of an increase in the GST rate, Comtrac may, subject to issuing a Tax Invoice (or adjustment note), recover from the Customer an additional amount on account of the increase in the GST rate on that supply.

If either party is entitled under the MSA to be reimbursed or indemnified by the other party, the reimbursement or indemnity will be net of any input tax credits which may be claimed by the party being reimbursed or indemnified.

A word or expression defined in the GST Act has the same meaning in the MSA as in that Act.

Invoicing & Payment

Invoicing

Comtrac must provide a Tax Invoice to the Customer for the Comtrac Services.

Unless otherwise agreed by the parties:

  • Comtrac will invoice the Customer for the Fees and Charges annually in advance; and

  • Comtrac will invoice the Customer for Third Party Costs or Bundles annually in advance.

Increase in Number of Licenses Provided and Increase in Fees and Charges.

If during the course of the year for which User licenses have been provided and paid for by the Customer in advance, further user licenses have been issued for use by the Customer, Comtrac will:

  • Issue a further Tax Invoice to the Customer for the additional number of licenses provided for that year (pro rata for that part of the year for which the Customer requires the licence against the annual cost of the licence); and

  • The Customer will pay the Tax Invoice for the additional licenses within 30 days of the invoice date.

The Customer is not permitted to decrease the number of User licences or the Allowed Number of Bundles during a year of the Term. Any reduction in the number of User licences or the Allowed Number of Bundles must be notified by the Customer to Comtrac at least 30 days before the anniversary of the Commencement Date and will be effective from the first day of the following year of the Term.

User licences are not transferable between Users.

Third Party Costs

The Customer acknowledges and agrees that:

  • The Fees and Charges specified in the Order Form include only the Allowed Number of Bundles set out in that Order Form.

  • If the Customer uses more Bundles than the Allowed Number in a given year of the Term, the cost for each Bundle above the Allowed Number will be payable by the Customer in addition to the Fees and Charges and the Third Party Costs set out in the Order Form. Such amount will be payable by the Customer annually in advance (pro rata for that part of the year for which the Customer requires the Bundle against the annual cost of the Bundle).

  • If the Allowed Number of Bundles for a given year of the Term are not used by the Customer in that year, any unused Bundles do not carry over to the next year of the Term and no refund is given on account of any unused portion of a Bundle.

  • Comtrac will notify the Customer that it has exceeded the Allowed Number of Bundles after that has occurred but is not required to advise the Customer in advance that the Allowed Number may be reached.

  • Third Party Costs may increase during the Term (at the decision of the Third Party Service Provider) and such increases may be passed on to the Customer.

Payment

The Customer will pay each Tax Invoice within 30 days of the date of the Tax Invoice. Payment will be made by electronic funds transfer into Comtrac's nominated bank account.

The Customer will also pay to Comtrac on demand, on a full indemnity basis, all amounts that Comtrac may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Customer's default under this MSA.

If payment is not made in accordance with the terms of this MSA, Comtrac may at its entire discretion:

  • Require the Customer to pay Comtrac interest on all outstanding monies from the due date until the date of payment at the rate of 2% per annum accruing daily. The obligation to pay interest survives termination of this MSA;

  • Refuse to supply all or part of any further Comtrac Services to the Customer until all outstanding monies, including any Comtrac costs and accrued interest, is paid in full; or

  • Terminate this MSA whereupon the full amount owed to Comtrac, whether the time for payment under this MSA has arrived or not, will be due and payable within 7 days of the date of the written notice of termination given by Comtrac to the Customer.

The Customer may not withhold payment or make any deduction from any amount owing without Comtrac's prior written consent, irrespective of any Claim the Customer may have against Comtrac for any thing or matter whether related to the provision of the Comtrac Services or not.

If a payment dispute arises after the Comtrac Services have commenced and that dispute has not been resolved within 30 days, Comtrac may suspend all or part of the Comtrac Services until the dispute is resolved and such a suspension will not constitute a breach by Comtrac of its obligations under this MSA.

Service Provision

This clause applies where the Customer is an Australian Agency. The Agency Provisioning Guide may not be provided to the Customer until the Customer has paid the full amount of the Tax Invoice for the Fees and Charges for the first year of the Term. The Comtrac Services also may not be provided until the Customer has paid the full amount of that Tax Invoice.

Payment disputes

If the Customer disputes the whole or part of any Tax Invoice, that dispute will be resolved in accordance with the dispute resolution process in this MSA.

Termination

Optional: Termination for Convenience by Comtrac

Comtrac may terminate this Agreement at any time by giving 30 days’ notice in writing to the Customer.

Termination for Cause by Comtrac

Comtrac may terminate the MSA immediately by written notice to the Customer if:

  • The Customer is or becomes subject to an Insolvency Event;

  • The Customer fails to pay an amount in full when that amount is due and payable in accordance with this MSA;

  • The Customer commits an irremediable breach of this MSA;

  • The Customer commits a remediable breach of this MSA and fails to remedy that breach within 7 days of notice from Comtrac, to Comtrac's satisfaction acting reasonably;

  • The Customer or its Personnel uses the Comtrac Services or Comtrac Systems in a manner that, in Comtrac's reasonable opinion, constitutes misuse, including use for any unlawful purpose, use in a manner inconsistent with the Acceptable Use Policy, or use in a way that threatens the integrity, security or performance of the Comtrac Systems; or

  • The Customer or its Personnel engages in any conduct that, in Comtrac's reasonable opinion, causes or is likely to cause material damage to Comtrac's reputation, goodwill, or public image, including through public statements, media engagement, or misrepresentation of the Comtrac Services.

A breach by the Customer's Personnel will constitute a breach by the Customer under this MSA.

The rights and remedies of Comtrac in this clause are in addition to any other rights and remedies Comtrac has at Law or in equity.

Consequences of Expiry or Termination

Upon expiry or termination of the MSA for any reason, each party must comply with its obligations in relation to Disengagement. Termination or expiry of the MSA will not affect the rights of the parties which have accrued before the termination or expiry. Provisions which by their nature are intended to survive termination or expiry will survive termination or expiry of the MSA.

Disengagement

On expiry or termination of this MSA, Comtrac will transfer of all Customer Data to the Customer in a format that the parties agree is reasonable given the nature of the Customer Data and the Systems used by Comtrac, within 30 days of the date of expiry or termination. If the parties cannot agree, Comtrac will transfer the Customer Data in a format it considers appropriate, acting reasonably.

The Customer shall provide written confirmation of receipt of the Customer Data within 7 Business Days following the date it is transferred by Comtrac. Upon written confirmation that the Customer Data has been received by the Customer, Comtrac shall delete all Customer Data from its Systems, except for data and records that Comtrac is required to retain for business purposes or by Law.

If the Customer fails or refuses to comply with the requirement above, Comtrac, may, in its sole and absolute discretion delete the Customer Data.

The Customer indemnifies Comtrac from any and all Claims, and Loss in relation to the Customer's obligation to retain records and evidence, the Customer Data transferred to the Customer pursuant to the above and any deletion by Comtrac of the Customer's Customer Data where the Customer has failed to request that data or comply with its obligation to confirm it has received it within the required timeframe.

Upon termination or expiry:

  • The Customer must deliver up to Comtrac all documents and other materials (including all copies) in its possession or control relating to the Comtrac System and do such further things as may be reasonably required by Comtrac to protect its right, title and interest in the Comtrac System and Comtrac's Intellectual Property Rights;

  • The Customer must return to Comtrac and otherwise destroy all evidence of any usernames, passwords, internet protocol addresses and other like matters for the Comtrac System;

  • The Customer must pay to Comtrac the full amount owed to Comtrac, whether the time for payment under this MSA has arrived or not, within 7 days of termination or expiry;

  • Comtrac will cease to provide the Comtrac Services; and

  • The Customer must cease, and cause its Personnel to cease, accessing and using the Comtrac System.

Warranties

General Warranties by Customer

The Customer represents and warrants to Comtrac that:

  • The execution of this MSA has been properly authorised;

  • The Customer has full corporate and/or Agency power or delegation to execute, deliver and perform its obligations under this MSA;

  • This MSA constitutes a legal, valid and binding obligation on the Customer;

  • There are no actions, Claims, proceedings, or investigations pending or threatened against the Customer which may prevent or limit the Customer from using the Comtrac Services and/or paying the Fees and Charges;

  • In performing its obligations under the MSA, the Customer will comply with all applicable Laws, standards, policies, codes of conduct and ethics;

  • The Customer will not be, and will ensure that its Personnel are not, party to the doing of any act, matter or thing prejudicial or bringing into disrepute the goodwill, commercial reputation or public image of Comtrac;

  • The Customer is aware of applicable Laws, standards, policies, codes of conduct and ethics applicable to it, and has the required policies, procedures, guidelines and training implemented and monitored to ensure the lawful use of the Comtrac Services; and

  • The Customer will, and will ensure that its Personnel, comply with any reasonable requirements and directions made by Comtrac in relation to the provision of, use of and access to the Comtrac Services and Comtrac Systems.

General Warranties by Comtrac

Comtrac represents and warrants to the Customer that:

  • Comtrac has full corporate power to execute, deliver and perform its obligations under the MSA;

  • The MSA constitutes a legal, valid and binding obligation on Comtrac;

  • Comtrac has the tools, capabilities, skill, facilities and resources to perform its obligations under the MSA;

  • In performing its obligations under the MSA Comtrac will comply with all applicable Laws;

  • Comtrac has all rights, licences, and authorisations necessary for it to perform its obligations under the MSA;

  • The Comtrac Services will be provided in a professional, competent, and diligent manner, will be fit for the purposes stated in the MSA and will conform to the requirements set out in the MSA.

Comtrac does not warrant to the Customer that the Comtrac System or Comtrac Services:

  • Will perform without error or interruption;

  • Will provide any function for which it is not specifically designed;

  • Will prevent loss, alterations or unauthorised access to Customer Data or other content or information; or

  • Will be bug or virus free or free of performance anomalies.

Liability & Indemnities

Limitation of liability

To the extent permitted by Law, in no circumstances will Comtrac be liable for any Loss which the Customer or its Personnel suffer, incur or are liable for in connection with this MSA or the provision of the Comtrac Services to the Customer (including access to and use of the Comtrac Systems) and neither the Customer or its Personnel may make any Claim against Comtrac,its Related Entities, contractors, agents, employees or officers on account of such Loss.

Indemnities from the Customer

To the extent permitted by Law, the Customer must indemnify Comtrac, its Related Entities, contractors, agents, employees and officers (Indemnified Persons) against any Claim and Loss suffered or incurred by the Customer and any of the Customer's Personnel and any third party/person arising out of or in connection with:

  • Any illness, injury or death to any person, or any Loss or damage to any property of any person caused by any act or omission by the Customer or its Personnel ;

  • Any negligent act or omission by the Customer or its Personnel;

  • Any fraudulent or wrongful act or omission by the Customer or its Personnel or any failure by them to comply with any applicable Law;

  • Any breach by the Customer or its Personnel of any obligations regarding confidentiality or privacy and data protection (whether under this MSA or otherwise); and/or

  • Any failure by the Customer or its Personnel to retain records and/or evidence,

except to the extent that the Loss is caused by the breach, negligence or wrongful act or omission of an Indemnified Person.

For the avoidance of doubt, it is agreed that the indemnity given by the Customer under this clause extends to indemnify Comtrac and its Related Entities, officers, agents, contractors and employees against any Loss suffered by Comtrac or any person or entity claiming through Comtrac. Comtrac's right to be indemnified under this clause does not limit any other right or remedy available Comtrac.

Except as specifically provided under this MSA and to the extent permitted by Law, the Customer hereby, releases Comtrac and its Related Entities, officers, agents, contractors and employees against all Loss and Claims which may be bought, commenced or prosecuted against Comtrac in consequence or relating to or arising out of the use of and supply of the Comtrac Services, the Comtrac Systems and Comtrac Software where Loss or Claims arise for any reason, except to the extent that the Loss or Claim is caused by the breach, negligence or wrongful act or omission of Comtrac, its officers, agents, contractors or employees.

For each indemnity provided by the Customer to Comtrac under the MSA, the Customer must use its best endeavours to ensure that Comtrac avoids incurring any Loss against which it is indemnified. For the avoidance of doubt, the obligation in this section is separate and apart from the indemnities provided by the Customer throughout this MSA.

Exclusion of Indirect Loss

Without limiting the generality of this clause, neither Party shall be liable to the other or any third party for Consequential Loss, however caused, which may be suffered or incurred.

Litigation

Each party must take reasonable steps to mitigate the Loss it suffers or incurs under or in connection with the MSA.

Cap on the Parties’ Liability

To the extent permitted by Law, but subject to the Customer’s rights under Australian Consumer Law, Comtrac’s Loss in connection with this Agreement will be limited to the Fees and Charges paid by the Customer to Comtrac in respect of the supply of the relevant Comtrac Services or Comtrac Systems to which the Loss relates.

Insurance

Insurance Cover

The Customer will maintain appropriate insurance sufficient to cover the Customer's total liability which may arise under this MSA (at its own cost) for the Term with a reputable insurer and on usual terms, including but not limited to:

  • Public and product liability insurance to cover all insurable amounts which the Customer may become legally liable to pay consequent on the death of or bodily injury (including illness or disease) to any natural person or loss of or damage to (including loss of use of) any real or personal property, or any other Loss.

  • Professional indemnity insurance to cover all insurable amounts which the Customer may become legally liable to pay consequent upon the Customer's access and use of the Comtrac Services and Comtrac Systems.

  • Cyber insurance sufficient to cover the Customer's obligations and liability under the MSA.

Insurance Requirements

The Customer must ensure that each insurance policy required to be taken out by it under the MSA contains cover of not less than $10 million per occurrence and complies with the Laws of the relevant jurisdictions in which the Customer accesses or uses the Comtrac Services and Comtrac Systems.

Compliance with Policy

The Customer must comply with all of the terms and conditions of any insurance policy required to be taken out by the Customer under the MSA, including by punctually paying all premiums, commissions, stamp duties, charges, taxes, and other expenses necessary for effecting and maintaining in force each such insurance policy. The Customer must not do or omit to do anything which may prejudice any insurance policy taken out by the Customer.

Evidence of Insurance

On each anniversary of the Commencement Date, the Customer must provide Comtrac with a certificate of currency for the required insurance policies.

Confidentiality

The Receiving Party must:

  • Keep and treat the Confidential Information confidential and not directly or indirectly disclose, divulge, or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

  • Not allow the use of the other party's Confidential Information by any third party;

  • Not disclose or allow the disclosure of the fact of the disclosure of the other party's Confidential Information to any third party;

  • Take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;

  • Only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under this MSA;

  • Not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the receiving party of its obligations under this MSA;

  • Take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information complies at all times with these this clause as if that person were a Receiving Party; and

  • Immediately notify the Disclosing Party in the event of any unauthorised use or disclosure of the Confidential Information.

The obligations of confidentiality do not apply to any disclosure of Confidential Information by the Receiving Party that is required by Law, which is expressly agreed by all parties in writing or where the Confidential Information comes into the public domain otherwise than by a breach of this MSA.

A Receiving Party may disclose Confidential Information to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor, or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a "need to know basis" and, prior to the disclosure the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed, and the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.

The Receiving Party is liable for any breach by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.

Immediately on the written request of the Disclosing Party a Receiving Party must:

  • Cease the use of all Confidential Information of or relating to the Disclosing Party;

  • Deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording, or constituting that Confidential Information or, at the option of the Disclosing Party, destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials; and

  • For Confidential Information stored electronically, permanently delete that Confidential Information from all electronic media on which it is stored, so that it cannot be restored.

The parties shall assume responsibility for the actions of their Recipients who have access to the Confidential Information and must ensure those persons are similarly bound by the obligations created under this MSA.

Upon a breach or threatened breach of the terms of this MSA by a party, the other party will, as between the parties, be entitled to an injunction restraining the first party from committing a breach of this MSA without showing or proving any actual damage sustained or likely to be sustained by the party making the application for injunction.

The obligations of the parties under this clause survive termination of this MSA.

Privacy and Data Protection

Compliance with Privacy Laws

Without limiting any provision in the MSA relating to compliance with Laws, the Customer must:

  • Comply with all relevant Privacy Laws;

  • Act in accordance Comtrac's instructions in relation to the performance of any obligations which affect Comtrac's Data;

  • During and after the term of the MSA, comply with any applicable Laws, policies, directions, instructions or guidelines, including Comtrac's Privacy Policy, as directed by Comtrac, in relation to the Processing of Personal Data, including where applicable in accordance with the Data Processing Agreement;

  • Take all reasonable steps to ensure that Personal Data is protected by appropriate technical and organisational measures against accidental or unlawful misuse, destruction, loss, alteration, interference, and unauthorised access, modification or disclosure, including by not disclosing any Personal Data to a third-party (other than the individual to whom the information relates) without Comtrac's prior written consent;

  • International Transfers. Each party may permit International Transfers where necessary to deliver or receive the Services, provided it complies with applicable Privacy Laws. Comtrac will take reasonable steps to ensure any overseas recipient it engages (including a Subprocessor) handles Personal Data consistently with applicable Privacy Laws and remains accountable for that handling where required by law.

  • Transparency. Comtrac will identify the Customer Data Location in the Order Form and publish its Subprocessors and their country of Processing on the Trust Portal. Comtrac will provide at least 30 days’ advance notice of any material change to Subprocessors or country of Processing for the Customer tenancy.

  • Not do anything with the Personal Data that will cause Comtrac to breach any Privacy Laws, or surveillance and monitoring Laws;

  • If requested by Comtrac, cooperate with Comtrac to enable Comtrac to meet its obligations to respond to requests from individuals to exercise their rights under applicable Privacy Laws (including Personal Data access, correction, and deletion requests);

  • To resolve any complaint made under applicable Privacy Laws and provide other reasonable assistance required for Comtrac to comply with applicable Privacy Laws or surveillance and monitoring Laws; and

  • In relation to any investigation into suspected or alleged breach of any Privacy Laws or a complaint, notice, investigation, communication, or request made by an Individual under any Privacy Laws or surveillance and monitoring laws, the Customer must: Notify Comtrac prior to changing the location where the Comtrac Services are to be performed or the Comtrac Systems accessed (as set out as the Customer Data Location in the Order Form), and seek Comtrac's prior written consent to any such change; If required by Privacy Laws or if specifically requested in writing by Comtrac, delete all existing copies of all or any requested portion of the Personal Information; Notify Comtrac of any threatened, suspected or actual breach immediately; Not notify any government authority, body or regulator, impacted Individual, media outlet or third-party in relation to any threatened, suspected or actual breach of Privacy Law or breach of any other Laws; If requested by Comtrac in writing, notify applicable government authority, body or regulator(s), impacted Individuals, media outlets and third parties in relation to any threatened, suspected or actual breach of Privacy Law, or any other Laws, and all such notices must be approved by Comtrac in writing prior to disclosure or publication.

Comtrac-side breach/incident obligationsSecurity Incident and Notifiable Data Breach

  • Notification. Comtrac will notify the Customer without undue delay (and no later than 48 hours) after becoming aware of a Security Incident involving Customer Data that is likely to require notification under applicable Privacy Laws.

  • Co-operation. Comtrac will promptly provide details reasonably required for the Customer’s assessment and notifications (including to regulators and affected individuals) and will not notify third parties about the incident

without the Customer’s written direction, unless required by law.

  • Remediation. Comtrac will take reasonable steps to contain, mitigate and remediate Security Incidents and keep the Customer informed of material developments.

Subprocessors – notice & objection

Customer authorises Comtrac to engage Subprocessors listed on the Trust Portal to Process Personal Data. Comtrac will impose data protection obligations on Subprocessors no less protective than those in this MSA/DPA and remains responsible for their performance. Comtrac will provide 30 days’ prior notice of new or replacement Subprocessors; the Customer may reasonably object to changes that would cause it to breach Privacy Laws. Parties will work in good faith to resolve any objection (e.g., alternative Subprocessor, configuration change).

European Privacy Law Requirements

To the extent that Comtrac and/or the Customer are subject to any Privacy Laws applicable in European Economic Area, the parties agree to additionally comply with PART B of the Data Processing Agreement.To the extent that the Customer is subject to any Privacy Laws applicable outside of Australia, the Customer additionally agrees to comply with all such Laws in those jurisdictions.

Intellectual Property Rights

Nothing in this MSA serves to grant or convey any title or proprietary rights in the Comtrac System or Comtrac's Intellectual Property Rights to the Customer.

The Customer must not at any time assert any right to or over Comtrac's Intellectual Property Rights or take, appropriate, or represent any or all of Comtrac's Intellectual Property Rights as its own.

The Customer undertakes not to take or permit or omit to do any action which would or might:

  • Invalidate or put in dispute Comtrac's title in Comtrac's Intellectual Property Rights or any part of them;

  • Oppose any application for registration or invalidate any registration of Comtrac's Intellectual Property Rights or any part of them;

  • Support any application to remove or undo Comtrac's title in Comtrac's Intellectual Property Rights or any part of them; or

  • Assist any other person directly or indirectly in any of the above.

Ownership of Pre-existing Intellectual Property

Each party (or its licensors) will retain ownership of all of the party's Pre-existing Intellectual Property subsisting in any material it provides or makes available to the other party under or in connection with this MSA which is not Services Intellectual Property.

Services Intellectual Property

The Customer acknowledges and agrees that any Services Intellectual Property developed, produced, created, or improved by, with, or at the request of or on behalf of the Customer in the course of, or in connection with, the performance of the Comtrac Services or otherwise:

  • Is owned by, Comtrac and will, on its creation, automatically be assigned to Comtrac and vest in Comtrac (free of any encumbrance, charge or security interest);

  • Such assignment is to be effective as each, and each part of, the Services Intellectual Property is created without any further requirement; and

  • That the right to make any Claim or take any action that Comtrac has or may have against any person to recover Loss, damages, accounts of profit or other relief for any infringement or misuse (or which is threatened) of any Services Intellectual Property and each of its components is assigned to Comtrac and such assignment is to take effect as and when such Services Intellectual Property is created or acquired by Comtrac.

The Customer will immediately inform Comtrac of any Services Intellectual Property created or conceived. The Customer must ensure that any Moral Rights in such Services Intellectual Property is assigned by the author to Comtrac in writing and will take such steps that Comtrac requires to ensure that occurs.

Comtrac grants to the Customer for the Term a limited, non-exclusive, revokable, non-transferrable, non-assignable licence to use the Services Intellectual Property in order for the Customer to access and use the Comtrac Services and to comply with its obligations under this MSA. This limited licence will cease immediately if this MSA expires or is terminated for any reason.

Licence to Use Pre-existing Intellectual Property

The Customer:

Will immediately inform Comtrac of any improvements to Pre-existing Intellectual Property of the Customer or Comtrac created or conceived by the Customer or its Personnel as part of accessing and using the Comtrac Services or Comtrac Systems;

Acknowledges and agrees that all improvements to the Customer's and Comtrac's Pre-existing Intellectual Property (but excluding the Pre-existing Intellectual Property itself) will be owned by Comtrac and will constitute Services Intellectual Property;

Assigns to Comtrac all of the Customer's rights, title and interests in and to any improvements to the Customer's Pre-existing Intellectual Property, including any future works of copyright as soon as it is created; and

Must ensure that any Moral Rights in such Customer's Pre-existing Intellectual Property are assigned by the author to Comtrac in writing and the Customer procures the consent of any person who is an author of any of the improvements or modifications referred to in above in favour of Comtrac.

Improvements to Customer’s Pre-existing Intellectual Property

The Customer:

  • Will immediately inform Comtrac of any improvements to Pre-existing Intellectual Property of the Customer or Comtrac created or conceived by the Customer or its Personnel as part of accessing and using the Comtrac Services or Comtrac Systems;

  • Acknowledges and agrees that all improvements to the Customer's and Comtrac's Pre-existing Intellectual Property (but excluding the Pre-existing Intellectual Property itself) will be owned by Comtrac and will constitute Services Intellectual Property;

  • Assigns to Comtrac all of the Customer's rights, title and interests in and to any improvements to the Customer's Pre-existing Intellectual Property, including any future works of copyright as soon as it is created; and

  • Must ensure that any Moral Rights in such Customer's Pre-existing Intellectual Property are assigned by the author to Comtrac in writing and the Customer procures the consent of any person who is an author of any of the improvements or modifications referred to in above in favour of Comtrac.

Assistance

Whether before, during or after the Term, the Customer will:

  • Take all necessary steps and continue to provide any assistance that Comtrac reasonably requests in relation to the Services Intellectual Property and any improvements thereto, including without limitation the prompt execution of all documents to confirm Comtrac's legal and beneficial ownership, transfer or otherwise deal with any interest in the Services Intellectual Property, including to register the Services Intellectual Property and improvements thereto to Comtrac and providing any evidence that is necessary for Comtrac to obtain full ownership of the Services Intellectual Property and any improvements thereto and providing any evidence that will assist Comtrac in any Claims including without limitation infringement, application and registration proceedings;

  • Not do anything which may conflict with Comtrac's ownership or protection of the Services Intellectual Property and any improvements thereto;

  • Not use, modify, disclose, reproduce, publish, copy, perform, communicate, exhibit, show, broadcast or adapt the Services Intellectual Property or any improvements thereto, without the authorisation of Comtrac. This restriction includes transferring, downloading and/or relocating Intellectual Property Rights from the offices and servers of the Customer without authorisation; not reverse engineer or decompile the Services Intellectual Property or any improvements thereto; not threaten, institute, invalidate, challenge or put in dispute the ownership, use or title of Services Intellectual Property or any improvements thereto; not infringe the Services Intellectual Property, any improvements or otherwise the Pre-existing Intellectual Property of Comtrac; and

  • Immediately notify Comtrac in writing giving particulars of the infringement or Claim if the Customer becomes aware of: - Any infringement or threatened infringement of the rights of Comtrac in relation to the Intellectual Property Rights of Comtrac, including the Services Intellectual Property and any improvements thereto - Any Claim against the rights of Comtrac in relation to its Intellectual Property Rights, including in respect of the Services Intellectual Property and any improvements thereto; or - Any common law passing-off which may cause deception or confusion to the public by a third party.

Moral Rights

To the extent permitted by applicable Law, the Customer unconditionally and irrevocably consents, and must take reasonable steps to obtain all other necessary unconditional and irrevocable written consents (including from its Personnel involved in the acquisition and use of the Comtrac Services and Comtrac Systems), to any act or omission by or on behalf of Comtrac that would otherwise infringe any Moral Rights in any work, whether occurring before or after a consent is given, and must not institute, maintain or support any Claim or proceeding for infringement or Loss against Comtrac in respect of Moral Rights in any work.

Dispute Resolution

Dispute Notice

Any party claiming that a dispute has arisen in connection with this MSA must give written notice (Dispute Notice) to the other party setting out the nature of the dispute and all other information relevant to the dispute.

Escalation

Within 7 Business Days (or such longer period as the parties agree in writing) of service of the Dispute Notice, each party's Relationship Representative must meet and undertake discussions with a view to resolving the dispute as soon as practicable. Each party to the dispute must use its best efforts to resolve the dispute in good faith.

Continued Performance of Obligations

Despite the existence of a dispute, each party must continue to perform its obligations under the MSA unless those obligations are the subject of the dispute.

Court Proceedings

If despite the parties' best efforts, a dispute is not resolved within 14 Business Days after the service of the Dispute Notice, a party may by notice to the other party to the dispute refer the dispute for mediation in accordance with the Mediation Rules of the Resolution Institute. The mediation will be conducted by a mediator to be appointed by agreement of the parties failing agreement, appointed by the President of the Queensland Law Society or their nominee at the request of a party.

If the dispute is not resolved within 20 Business Days after the appointment of the mediator, any party may take legal proceedings to resolve the dispute.

Nothing in this clause headed "Dispute Resolution" prevents a party from seeking urgent injunctive, declaratory, or other interlocutory relief from a Court which may be urgently required.

Force Majeure

General

Neither party shall be liable to the other party for any failure or delay in the performance of its obligations under the MSA which is due to a Force Majeure Event provided the party has complied with this "Force Majeure" clause.

Procedure for Force Majeure Events

A party whose performance under the MSA is affected by a Force Majeure Event must:

  • Promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration of any consequential delay or non-performance of its obligations;

  • Use all reasonable endeavours and take reasonable steps to avoid or mitigate the effect of the Force Majeure Event on the other party and the performance of the affected party's obligations. Such reasonable steps will not require the notifying party to settle any reasons for Force Majeure on unfavourable terms; and

  • Resume full performance of its obligations as soon as reasonably possible, at no cost to the other party.

The obligations of the parties under this MSA, to the extent affected by Force Majeure, shall be suspended and no Claim by a party against the other party shall avail by reason of such Force Majeure provided this clause is complied with.

Effect on Charges

If the Comtrac Services are affected by a Force Majeure Event, the Customer will not be obliged to pay the Fees and Charges for any Comtrac Services that Comtrac is unable to provide as a consequence of that Force Majeure Event.

Termination

If a Force Majeure Event materially impacts the Comtrac Services and continues for a period of 30 Business Days or more, then the Customer may by written notice to Comtrac terminate the MSA by providing seven Business Days' notice of termination. The Customer shall remain liable all amounts owing to Comtrac up to and including the date of termination.

Notices

Form

All notices connected with this MSA must be in writing and given to:

  • For Comtrac – Level 25 , 307 Queen Street, Brisbane QLD 4000 and Doran.CraigJ@comtrac.com.au;

  • For the Customer – at the physical and email address for the Customer specified in the Order Form,

or such other address notified in writing by the party to all other parties from time to time.

Receipt

Notices may be given by personal delivery, posting or email. Notices given:

  • By personal delivery are deemed to be received when delivered;

  • By post are deemed to be received at the time when, by the ordinary course of post, the notice would be delivered; or

  • By email are deemed to be received on at the time it is capable of being retrieved by the addressee at the nominated email address in accordance with section 24 of the Electronic Transactions (Queensland) Act 2001 (Qld). Notices given after 5:00pm AEST will be treated as given on the next Business Day.

General

Entire Agreement

This MSA, together with each annexure, attachments and schedules to any document which constitutes the MSA, constitutes the entire agreement between Comtrac and the Customer regarding its subject matter and supersedes, in its entirety, all previous agreements, understandings and negotiations of that subject matter. No oral explanation or information provided by a party to another affects the meaning or interpretation of the MSA or constitutes any collateral agreement, warranty or understanding.

Governing law

The MSA is governed by the laws of Queensland. The parties each submit to the exclusive jurisdiction of the courts of that place, relevant federal courts and the courts of appeal from them.

Further Steps

Each party agrees, at its own expense, to do anything reasonably necessary to perform their obligations under the MSA.

Counterparts

This MSA may consist of a number of copies, each signed by one or more parties to this MSA. If so, the signed copies are treated as making up the one MSA. When executed, communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

Assignment

Neither Party may assign, cede, or novate any of its rights, interest or obligations under this MSA to any party without the prior written consent of the other Party, which must not be unreasonably withheld. A Change of Control of the Customer constitutes an assignment under this clause and requires the consent of Comtrac.

No Partnerships

Nothing contained or implied in the MSA constitutes a party as the partner, agent, employer or legal representative of the other party for any purpose nor creates any partnership, agency or trust or any employment relationship, and no party has any authority to bind another party in any way.

Severability

If any clause or part of any clause in this MSA is void or unenforceable, that clause or part of a clause is to be regarded as having been deleted from the MSA and the MSA will otherwise remain in full force and effect. This clause has no effect if the deletion alters the basic nature of this MSA.

Variations and Waiver

The MSA may only be varied in writing signed by the parties. A condition of the MSA, or a right created by it, may only be waived by written notice signed by the party granting the waiver. A waiver of a breach of the MSA does not waive any other breach.

Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this MSA.

Attorneys

Where this MSA is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

Independent advice

In executing this MSA the parties acknowledge that they have been offered the opportunity of obtaining independent legal and accounting advice concerning the nature and effect of this MSA and have availed themselves of that opportunity to the extent to which they choose to do so.

Mutual representations and warranties

Each party hereby represents and warrants to the other that:

  • It has the power and authority to enter in and perform its obligations under this MSA;

  • It is not insolvent and is not an externally administered body corporate and no proceedings have been bought or threaten to render it an externally administered body corporate or insolvent; and

  • This MSA constitutes a legal, valid and binding obligation on it and is enforceable in accordance with its terms.

Cumulative rights

The rights and remedies of a party to this MSA are in addition to the rights or remedies conferred on the party at law or in equity.

Electronic transactions

The parties consent (in accordance with sections 11 and 12 of the Electronic Transactions (Queensland) Act 2001 (Qld)) to all correspondence in relation to this MSA, including notices, contracts and information being given by electronic communication.

Not merge on completion

Despite the performance of the parties’ respective obligations under this MSA, any general or special provision (or any part of parts thereof) which is capable of taking effect after the completion of that performance shall not merge on completion but rather shall remain in full force and effect.

Inconsistency

The provisions of this MSA shall prevail in the event of any inconsistency between this MSA and any other document, matter, item or thing.IndemnitiesEach indemnity in this MSA is several and the indemnities in this MSA are continuing obligations, independent from the other obligations of the parties under the MSA and continue after the MSA ends. It is not necessary for a party to incur an expense or make a payment before enforcing a right of indemnity. The indemnities in the MSA will be in addition to (and not to the exclusion of) any of Comtrac's other rights or remedies provided by law.

Warranties

The Customer warrants that, in entering into each part of the MSA, it has not relied on any representations or warranties by Comtrac other than those herein.