These terms and conditions (Terms and Conditions) are a legally binding contract between you (Customer, you and your) and us (Mastt, we, us and our) as further specified in the Order Form.
If you are agreeing to these Terms and Conditions not as an individual but on behalf of an entity or organisation, then “you” means that entity or organisation, and you acknowledge that you are binding that entity or organisation to these Terms and Conditions.
Please read these Terms and Conditions carefully before signing. By signing these Terms and Conditions or otherwise accepting them by using or accessing the Products and Services, you acknowledge that you have read, understand and agree to follow and be bound by these Terms and Conditions.
(a) The terms of engagement for the provision of the Products and Services to which the Customer is subscribing will be set out in in the order form which must be executed by both Mastt and Customer (Order Form). Upon execution by both parties, the Order Form will incorporate these Terms and Conditions and take effect as a binding agreement (Agreement).
(b) Any new features, tools which are added to the Products and Services (including any Updates under clause 7) will also be subject to the Agreement.
(c) Each party must perform its obligations under the Order Form in accordance with these Terms and Conditions and the terms of the Order Form. The parties must comply with any additional requirements, insurance requirements, and special conditions set out in Order Form (Special Conditions).
(d) In the event of any inconsistency between these Terms and Conditions and the Order Form, the provisions will prevail in the following decreasing order:
(i) the Special Conditions (if any);
(ii) the remaining provisions of the Order Form; and
(iii) these Terms and Conditions.
(a) The Agreement commences on the Commencement Date and continues for the term as set out in the Order Form (Initial Term), unless terminated earlier in accordance with clause 17.
(b) At the end of the Initial Term, the subscription for the Products and Services under an Order Form automatically renews for successive terms of one year unless:
(i) either party provides the other party with no less than 60 days' written notice prior to the commencement of the relevant Renewal Term of its intention to cancel such automatic renewal; or
(ii) this Agreement is terminated earlier in accordance with clause 17.
(c) Notwithstanding clause 2(b), the parties may replace a current Order Form at any time in which case the that new Order Form (New Order Form) will replace the current Order Form (Replaced Order Form). No changes are effected unless both parties have signed the New Order Form. The replacement of the Replaced Order Form by the New Order Form does not affect any accrued rights or remedies under the Replaced Order Form.
(a) The use of the Products and Services are not contingent on the delivery of any future functionality or feature or dependent on any oral or written public comments made by Mastt regarding future functionality or feature.
(b) Mastt grants to Customer a non-exclusive, limited, non-sublicensable and non-transferable right to access and use the Products and Services during the Term in accordance with this Agreement, subject to clause 5(b) under which Customer can grant access to the Products and Services to Authorised Users pursuant to the terms of this Agreement.
(c) Mastt will provide Customer with any Mastt Documentation reasonably required to use the Products and Services.
(d) Mastt reserves its right to discontinue Customer’s (and Authorised Users) access to the Products and Services without notice, if in Mastt’s opinion,
(i) Customer or the Authorised User’s behaviour is deemed inappropriate or is in breach of these Terms; or
(ii) Mastt determines that a continued association with Customer or any Authorised User would materially adversely affect Mastt’s reputation or fidelity to our mission.
Mastt must ensure that the Products and Services comply with the Privacy Act and any other data including any Update.
(a) Customer must not, without Mastt's prior written approval:
(i) use the Products and Services for a purpose other than the Authorised Purpose and in accordance with the terms of this Agreement;
(ii) copy or replicate, or directly or indirectly allow or cause a third party to copy or replicate, the whole or any part of the Products and Services;
(iii) vary, alter, modify, interfere with, reverse disassemble, decompile, or reverse engineer, or copy in any way Mastt’s Intellection Property Rights, (except where permitted under the Australian Copyright Act 1968 (Cth) or other applicable laws, and except for the temporary copy held in the cache of any Authorised User’s computer);
(iv) otherwise seek to obtain or derive the source code from any part of the Products and Services, or directly cause or permit any other person to do so;
(v) publicly disseminate information regarding the performance of the Products and Services; or
(vi) sub-licence, rent, sell, lease, distribute or otherwise transfer the Products and Services or any part of them except as permitted under this Agreement.
(b) Customer is responsible for maintaining control over and access to its instance of, or account for, the Products and Services.
(c) Customer may designate various persons as authorised users of the relevant Products and Services, with limited rights to use the relevant Products and Services, provided such persons is at least 18 years old, is the Customer's Personnel, Customer's Client(s), Customer's suppliers, or Customer's stakeholder or a stakeholder of a project which is managed by the Products and Services (Authorised User).
(i) Customer may contact Mastt to assist Customer to create access accounts for Authorised Users including with limited rights to use the Products and Services.
(ii) Customer must keep accurate, up-to-date records of each Authorised User.
(iii) Customer acknowledges if it creates an account for an Authorised User:
(A) the Authorised User will be able to access the Products and Services including Customer Material and any Enriched Material and to collaborate with other Authorised Users.
(B) it is deemed to have granted to the Authorised User a non-exclusive, non-revocable, royalty free right to use, modify, adapt or create derivative works, or provide access to, share, store or download any part or all of Customer Material, and to access such Customer Material and any Enriched Material through the Product and Services.
(iv) For the avoidance of doubt, Customer is responsible for:
(A) compliance with this Agreement by all of its Authorised Users, including what Authorised Users do with Customer Material.
(B) removing Authorised Users’ access to the Products and Services when required, for example if such user is no longer a Customer’s Personnel or if the user’s role has changed which does not require the user to access the Products and Services.
(d) Customer must maintain the confidentiality of all login information and must not allow or authorise any person other than Customer's Personnel and Authorised Users to use the login information. Customer must immediately notify Mastt of any suspected or actual unauthorised access to or use of the login information.
(e) Customer is responsible for all activities that occur on Customer's instance of, or account for, the Products and Services, whether or not authorised by Customer.
(f) Customer must not, and must ensure its Authorised Users do not, use the Products and Services (including through the upload of any Customer Material) in any way that:
(i) involves anything which is false, defamatory, harassing or obscene;
(ii) involves unsolicited electronic messages;
(iii) would involve the contravention of any person's rights (including Intellectual Property Rights);
(iv) may contravene any Laws;
(v) could damage, disable or impair any part of the Products and Services;
(vi) may otherwise be regarded by Mastt, on reasonable grounds, to be unacceptable (Mastt may from time to time notify Customer of the circumstances which it regards as unacceptable);
(vii) involves any fraudulent activity; or
(viii) involves the sale or promotion of any illegal business activities or prohibited products or services.
(g) Customer must comply at all times with the terms of any Third Party Licences, if any, in which case Mastt will notify Customer about such terms.
(a) Customer must pay the Subscription Fees set out in each invoice in accordance with this clause 6 and in accordance with any specific invoicing arrangements specified in the Order Form.
(b) Subscription Fees are calculated based on the calculation formula referenced in the Order Form. Mastt reserves its right to validate the facts on which the calculation of the Subscription Fees is based on with reference to the information in the Customer Material made available to Mastt pursuant to the terms of this Agreement. If Mastt determines a discrepancy in the calculation of the Subscription Fees, Mastt is entitled to increase the Subscription Fees in retrospective for the relevant Term to which those Subscription Fees apply.
(c) No later than 60 days prior to any Renewal Term, Mastt may notify Customer in writing of revisions to the Subscription Fees to take effect from the start of the next Renewal Term, or on or about the Review Date as specified under the Order Form.
(d) Unless expressly stated otherwise in the Order Form:
(i) invoices for up-front Subscription Fees set out in the Order Form will be invoiced on the Commencement Date and Customer must pay all such invoices within 30 days of invoice date;
(ii) invoices for ongoing monthly Subscription Fees set out in the Order Form will be submitted quarterly in advance and Customer must pay all such invoices within 30 days of invoice date.
(a) Unless otherwise stated, all amounts referred to in this Agreement, including the Subscription Fees exclude any federal, state or local sales, use, value added, goods and services, or other similar transaction taxes (Taxes) payable in respect of the Products and Services in the jurisdiction where the payment is either made or received. To the extent that any such Taxes are payable by Mastt, you must pay to Mastt the amount of such Taxes in addition to any fees owed under this Agreement.
(b) In providing an invoice, a party shall provide proper tax invoices if Taxes are applicable to the Subscription Fees.
(a) From time to time, Mastt may introduce, in its sole discretion and without any legal obligation to Customer, Updates to the Products and Services.
(b) All Updates:
(i) will be taken to be granted by Mastt to Customer on an "as is" basis and otherwise subject to the same terms as this Agreement;
(ii) subject to clause 7(b)(iii) will be taken to be part of the original grant to access the Products and Services under clause 3(b)and subject to this Agreement; and
(iii) are granted by Mastt to you in consideration for the Subscription Fees as stipulated under the Order Form.
(a) Customer acknowledges and agrees that Mastt owns or licenses:
(i) all Intellectual Property Rights in the Products and Services; and
(ii) any Developed Intellectual Property,
and nothing in this Agreement is intended to transfer ownership of or interest in any Intellectual Property Rights of Mastt or any third party.
(b) To the extent that Customer acquires ownership of any Intellectual Property Rights in the Developed Intellectual Property:
(i) Customer at its own cost assigns, and must procure that its Authorised User and Personnel assign, such Intellectual Property Rights to Mastt;
(ii) Customer must, at its own cost, upon request by Mastt, execute (and procure that its Personnel and Authorised User execute) any assignment or other document reasonably required to evidence or perfect Mastt's ownership of such Intellectual Property Rights; and
(iii) Customer must, at its own cost, provide all reasonable assistance requested by Mastt to protect, defend and assert Mastt's interests in such Intellectual Property Rights.
(c) In relation to any moral rights that may arise by operation of the Copyright Act 1968 (Cth) in respect of any Developed Intellectual Property Customer must procure that each Personnel and Authorised User irrevocably and unconditionally waives and agrees not to enforce any and all moral rights, including, without limitation any limitation on subsequent modification, to the extent permitted under applicable law.
(d) Customer must notify Mastt immediately if it becomes aware of any:
(i) unauthorised access to or use of the Products and Services;
(ii) other breach of any of Mastt's Intellectual Property Rights; or
(iii) any claim by any third party relating to Intellectual Property Rights in the Products and Services.
(a) If you choose to submit any suggestions, ideas, information, comments, process descriptions or other information (Feedback) to Mastt, Mastt may use any such Feedback in connection with its business freely including copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise.
(b) No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Mastt’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
(a) Customer agrees and acknowledges that it is solely responsible for any Customer Material.
(b) Customer must ensure that Customer Material, and its collection, use, processing, disclosure and dissemination via the Products and Services:
(i) will not infringe any Intellectual Property Rights of any person; and
(ii) complies with all applicable Laws (including Privacy Laws, where applicable).
(c) Notwithstanding any other clause in this Agreement, Customer agrees that Mastt will have the right to access, use, adapt, modify, reproduce, reformat, transform, and process Customer Material for the purpose of:
(i) providing Customer with the Products and Services;
(ii) internal training; and
(iii) testing, improving and developing new features for the Products and Services or entirely new products and/or services,
and grants Mastt a, royalty-free, worldwide, transferable, non-exclusive licence to do so.
(a) Mastt uses third-party cloud computing services created for building, testing, deploying, hosting and managing applications and services through managed data centres for the provision of its Products and Services.
(b) The Customer has access to and can download Enriched Material/ Customer Material in a csv, xls or PDF format (or such other format as provided as made available through the Product and Services from time to time) at any time during the Term of the relevant Order Form and 30 days from date of expiration or termination of the relevant Order Form or this Agreement, whichever is earlier.
(c) At the Customer’s written request Mastt will assist in extracting a download of Enriched Material/ Customer Material in a csv, xls or PDF format (during the Term of the relevant Order Form and 30 days from the date of expiration of the relevant Order Form or termination of this Agreement, whichever earlier).
(a) Subject to clauses 10.1(b) and 10.1(c), each party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement (including the terms set out in the Order Form) or any other Confidential Information of the other party.
(b) A party may only disclose Confidential Information of the other party:
(i) to persons which control, or are controlled by, the party within the meaning of the Corporations Act, and the employees, legal advisors or consultants of such persons, in each case under corresponding obligations of confidence as imposed by this clause and only where such persons, employees, legal advisors or consultants of such persons have a need to know such information in connection with this Agreement;
(ii) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
(iii) to the extent required by Law or pursuant to a binding order of a government agency or court.
(c) Mastt may disclose Customer names to the extent necessary in connection with a capital raising, financing, or transfer or divestiture of all or a portion of its business, or otherwise in connection with a merger, consolidation, change in control, reorganisation or liquidation of all or part of Mastt's business, but will use reasonable efforts to minimise the scope of such disclosure.
Unless otherwise instructed in writing, Mastt may disclose to third parties the fact that Customer has entered into this Agreement with Mastt, including in any marketing or other material used by Mastt, and by giving such approval Customer grants to Mastt a royalty-free, non-exclusive licence to use and display Customer's logo on the Mastt website or in Mastt's marketing materials for such purpose.
(a) Each party must comply with the Privacy Act (as though it were an entity bound by the Privacy Act and notwithstanding the small business exception in the Privacy Act) and any other applicable Privacy Laws, in respect of any Personal Information that:
(i) one party discloses to the other party; or
(ii) comes into the possession or control of a party by any means, including through use of the Products and Services.
(b) Customer must, throughout the Term, obtain all necessary Consents, and provide all necessary notices, relevant to its use of the Products and Services, including those in relation to collection, use, disclosure and storage of Personal Information of any individual whose Personal Information may be provided to Mastt, directly or indirectly, as contemplated by this Agreement.
(c) Customer acknowledges and agrees that Mastt may provide all or part(s) of the Products and Services from any location worldwide.
If a party (First Party) becomes aware of or suspects any loss of, or unauthorised access to, use or disclosure of, or breach of security in relation to, any data provided to the First Party by the other party in accordance with this Agreement (Data Incident), the First Party must:
(a) immediately notify the other party in writing and provide the other party with all details of the act or breach;
(b) co-operate and comply with all reasonable directions of the other party in relation to such event; and
(c) promptly take all reasonable steps to rectify or remedy such breach where possible.
(a) If a Data Incident occurs and either party wishes to notify the relevant regulator and/or affected individuals, the parties will work together in good faith to prepare such a notification (which, if prepared in relation to a Notifiable Data Breach, must comply with the Privacy Act).
(b) Any correspondence or notification sent by Customer to the relevant regulator (and affected individuals, if applicable) must be in a form approved by Mastt in advance.
(a) Customer acknowledges that the Products and Services may incorporate Third Party Content including open source software and that Mastt is not responsible for the accuracy, quality, integrity or reliability of the same.
(b) To the extent permitted by Law (including the Australian Consumer Law, if applicable), Mastt does not give any representation or warranty as to the reliability, accuracy or completeness of any Third Party Content, including open source software, and Mastt will have no responsibility or liability to Customer or any other person arising from or in connection with any error, defect or inaccuracy in any Third Party Content.
(a) Customer acknowledges that, except to the extent otherwise provided in this Agreement, it is solely responsible for establishing, providing or procuring, maintaining and supporting any Third Party Licences and any operating environment, facilities, equipment and telecommunications and internet connections necessary to use and obtain the benefit of the Products and Services (Operating Environment).
(b) Customer must ensure that the Operating Environment has the necessary specifications, features and third party software required to ensure compatibility with relevant parts of the Products and Services, as may be notified by Mastt from time to time.
(a) Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed (in whole or in part) due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations. This clause 15(a) shall not apply to payment obligations under clause 6.
(b) The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
(a) Mastt may modify or suspend the access to Product and Services entirely, at any time. Any such modification or suspension will be to the minimum extent and for the shortest duration required to:
(i) prevent or terminate an offending use of any part of the Product and Services;
(iii) comply with applicable law.
(b) If Mastt exercises its right under clause 16(a) Mastt has no liability to Customer for removing or deleting any Customer Material or from or suspending Customer’s and Authorised Users’ access to the Products and Services.
(a) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if:
(i) the other party experiences an Insolvency Event;
(ii) the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 30 days after receiving written notice from the terminating party requiring it to do so; or
(iii) without limiting clause 17(a)(ii), the other party fails to comply with the obligations set out in clause 9 (Confidentiality and Publicity) or clause 11 (Privacy and Security).
(b) On expiration or termination of this Agreement for any reason, Customer must immediately:
(i) stop using the Products and Services, and ensure that all of Authorised Users stop using the Products and Services;
(ii) return to Mastt (or, at Mastt's direction, delete) all copies of the Mastt Documentation and any of Mastt' Confidential Information in Customer's possession or control; and
(iii) allow Mastt or Mastt' nominee to access Customer’s premises and systems to enable Mastt to de-install and remove relevant parts of the Products and Services (if applicable).
(c) Termination of this Agreement shall not relieve the parties of any accrued liability (including with respect to outstanding or accrued Subscription Fees).
(d) If this Agreement is terminated each Order Form is deemed terminated from the date of termination of this Agreement.
Each party warrants that it:
(a) has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
(b) will comply at all times with applicable Laws; and
(c) will not do anything or make any statement that could be reasonably expected to harm the reputation of the other party, and, in the case of Customer, the Products and Services.
(a) Customer acknowledges and agrees that, to the extent permitted by Law (including the Australian Consumer Law if applicable), the Products and Services are made available "as is" and Mastt makes no representation, warranty or guarantee:
(i) that the Products and Services will operate in combination with any other hardware, software, platform, or Customer Material;
(ii) that the Products and Services will meet Customer's requirements or expectations;
(iii) that the Products and Services, and information extracted from them, will be accurate, free from defects, bugs, errors or omissions, or that any Customer Material input into the Products and Services will not be lost or corrupted; or
(iv) in relation to non-infringement, title, fitness for a particular purpose, functionality, availability or merchantability.
(b) Mastt uses reasonable endeavours to ensure that the Products and Services are free of viruses or other harmful components but cannot guarantee they will be free from unknown viruses and other harmful components.
(c) Mastt shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other platforms outside the reasonable control of Mastt.
Without limiting any other indemnities given by Customer under this Agreement, Customer must defend, hold harmless and indemnify Mastt and its Related Bodies Corporate and Personnel (the Mastt Indemnified Parties) from and against any Loss suffered or incurred by the Mastt Indemnified Parties arising out of or in connection with:
(a) any breach by Customer of clauses 4 (Use of the Products and Services), 9 (Confidentiality and Publicity) or 11 (Privacy and Security);
(b) the performance, or failure to perform, of the Products and Services associated with any deficiency or inadequacy of Customer’s Operating Environment.
(c) any Customer Material (including Personal Information) used or disclosed by Customer (or any Authorised User), including any claim by any person that Customer Material infringes any Intellectual Property Right or other right (including privacy rights) of such person or any third party;
(d) the use of the Products and Services by Customer and its Authorised Users; or
(e) any fraud, wilful misconduct or negligence by Customer or its Authorised Users.
(a) To the extent permitted by Law, (including the Australian Consumer Law if applicable) and subject to clause 21(b),:
(i) in no event will the aggregate liability of Mastt for any Loss, direct or otherwise, exceed an amount equivalent to the Subscription Fees paid by the Customer to Mastt in the 12 month period prior to the claim, regardless of the cause or form of action.
(ii) Mastt's liability to Customer in respect of a breach of any applicable consumer guarantee under the Australian Consumer Law, is limited to the resupply of the services or the cost of resupplying the services.
(iii) under no circumstances will either party be liable for any Consequential Loss, except to the extent arising from a breach by Customer of its obligations under clauses 8, 9 and 11.
(b) Notwithstanding clause 21(a) and notwithstanding any other provision in this Agreement, the limitation of liability referred to in clause 21(a) does not operate to limit or restrict Mastt’s liability to the extent that Mastt:
(i) is indemnified in respect of that liability by a policy of insurance required under this Agreement; or
(ii) would have been indemnified in respect of that liability by a policy of insurance required under this Agreement, if Mastt had:
(A) diligently pursued a claim under that policy of insurance;
(B) complied with the term and conditions of that policy or insurance; or
(C) complied with its insurance obligations under this Agreement
(c) Clause 21(a) does not apply to, and shall not limit, any party's liability:
(i) for death or personal injury caused by that party or its Personnel; or
(ii) for fraud (including fraudulent misrepresentation).
Mastt must, by the date of this Agreement:
(a) obtain all insurances set out in Annexure A; and
(b) provide to your reasonable satisfaction evidence thereof; and
maintain such insurances for the period set out here during the Term of this Agreement.
(a) Customer must not assign or novate, directly and indirectly, any of its rights or obligations under this Agreement without the prior written consent of Mastt (such consent not to be unreasonably withheld or delayed).
(b) Mastt may at any time assign, novate or otherwise dispose of or deal with its rights and obligations under this agreement by notice in writing to Customer and Customer gives Mastt prospective authority to a future assignment and/or novation to be effectuated by Mastt unilaterally.
Without limiting any other provision of this Agreement, clauses 6 (Subscription Fees, payment and GST), 8 (Intellectual Property Rights), 9 (Confidentiality and publicity), 11 (Privacy and security) and any other clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.
Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:
(a) must be in writing and signed by the sender or a person duly authorised by the sender (or in the case of email, set out the full name and position or title of the sender or person duly authorised by the sender);
(b) must be addressed and delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand or email to the address or email address specified in the Order Form or as last notified by the intended recipient to the sender;
(c) will be conclusively taken to be duly given or made when delivered, received or left at the above email address, fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.
(a) If a dispute arises out of or in relation to this Agreement, either party may notify the other in writing in which case a nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. In the event that the parties are unable to resolve the dispute within seven (7) days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to one of the Managing Director, Chief Executive or Chief Operating Officer (Senior Executive) of that party.
(b) If the parties are unable to resolve the dispute within fourteen (14) days following referral to the Senior Executive of the relevant parties, then either party may use such lawful dispute resolution procedures or seek such legal and equitable remedies as it considers necessary or appropriate in its sole discretion.
(c) Nothing in this clause 26, shall prevent a party from seeking urgent injunctive relief before an appropriate court.
(a) Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement.
(b) This Agreement contains the entire agreement between the parties with respect to its subject matter. Neither of the parties has relied on or is relying on any other representation in entering into this Agreement.
(c) This Agreement may be amended only by another written agreement executed by all the parties.
(d) Customer will be fully responsible to Mastt for any Loss suffered by Mastt or its Personnel arising from or in connection with the acts or omissions of its sub-contractors, contractors, assigns and all their employees, as if they were the acts and omissions of Customer.
(e) Mastt will be fully responsible to the Customer for any Loss suffered by the Customer or its Personnel arising from or in connection with the acts or omissions of its sub-contractors, contractors, assigns and all their employees, as if they were the acts and omissions of Mastt.
(f) No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
(g) The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
(h) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
(i) Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
(ii) This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.
(k) This Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute one agreement.
(a) Mastt provides the Products and Services contemplated under this Agreement in accordance with the service levels as outlined here [insert link] .
The following definitions apply unless the context requires otherwise.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time.
Authorised User means person who have been provided access to the Products and Services by the Customer as referenced under clause5(c).
Authorised Purpose means Customer's use of the Products and Services for its own internal business operations.
Commencement Date means the commencement date specified in the Order Form.
Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement. Specifically, Mastt's Confidential Information includes the design, specification and content of the Products and Services, including its source code, Mastt's personnel information, operational and other policies, project documentation, proposals, or other development documentation including any specifications, or business strategies, and the terms of this Agreement, including the Subscription Fees and information relating to Mastt' pricing. Confidential Information does not include information which is:
(a) already known to the other party;
(b) received by the other party from a third party not under a duty of confidence; or
(c) independently developed by the other party.
Consent means any licences, clearances, permissions, authorisations, waivers, approvals or consents.
Consequential Loss means any indirect or consequential loss (not being loss which arises naturally as a result of a breach of this Agreement or other event the subject of the relevant claim), including loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business.
Corporations Act means the Corporations Act 2001 (Cth), as amended or replaced from time to time.
Customer Clients means Client’s customers or clients.
Customer Material means any and all data or other material input, entered into or added or uploaded to the Products and Services, or otherwise provided or made available to Mastt, by an Authorised User, or on behalf of, or at the request of, the Customer.
Developed Intellectual Property means any Intellectual Property Rights arising from any work done by or for Mastt on behalf of Customer in connection with the Products and Services, including the development of any portals used by Customer to access the Products and Services and any feedback (including suggestions, ideas, information, comments, process descriptions or other information) provided by Customer to Mastt.
Enhancements means changes or improvements to the functions or performance of the existing Products and Services.
Enriched Material means any outputs of the Products and Services as well as any material including Customer Material which has been modified and/or enriched with additional information by Authorised Users.
Force Majeure Event affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes (other than of its own staff), embargo, or power, water and other utility shortage.
Initial Term means the initial term set out in the Order Form, such period commencing on and from the Commencement Date.
An Insolvency Event occurs in respect of a person where:
(a) a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
(b) a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(c) a party becomes or is (including under legislation) deemed or presumed to be insolvent;
(d) a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
(e) any composition or arrangement is made with any one or more classes of its creditors;
(f) except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
(g) a party enters into liquidation whether compulsorily or voluntarily; or
(h) any analogous or comparable event takes place in any jurisdiction.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trademarks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may subsist anywhere in the world, but excludes moral rights, and similar personal rights, which by law are non-assignable.
Law means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
Loss means any claim, loss, damage, liability, cost, charge or expense (including legal expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.
Mastt Documentation means user instructions and all other related materials supplied to Customer in any format by Mastt for aiding the use and application of the Products and Services, and will include all revised documentation supplied as part of an Update.
Notifiable Data Breach has the meaning given to that term in the Privacy Act.
Operating Environment has the meaning given to that term set out in clause 14.
Order Form has the meaning given to it under clause 1(a).
Personal Information has the meaning given to that term in the Privacy Act.
Personnel means, in respect of a person, any officer, employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any subcontractors.
Privacy Act means the Privacy Act 1988 (Cth), as amended or replaced from time to time.
Privacy Law means all legislation, principles, industry codes and policies, as amended or replaced from time to time, which relate to the collection, use, disclosure, storage or granting of access rights to Personal Information, and includes the Privacy Act and the Spam Act 2003 (Cth).
Products and Services means Mastt’s products with respect its software solution in the area of project, program and portfolio reporting and governance solution for capital works construction (as further described now and in the future on the Mastt Website and the Order Form) and the services provided under this Agreement, including and any associated Mastt Documentation or Updates (as applicable).
Related Body Corporate has the meaning given to that term in section 9 of the Corporations Act.
Renewal Term means the periods for which the Term shall successively renew, as set out in 2(b) .
Special Development Request or SDR means a request for a specific Enhancement requested by the Customer.
Subscription Fees means the price of goods and services set out in the Order Form.
Term means the period from the Commencement Date until the end of the Initial Term or any applicable Renewal Term in accordance with clause 2 for subscribed Products and Services under the relevant Order Form.
Third Party Content means any information, data or other content that Mastt sources and/or supplies from any third party for use in connection with the Products and Services.
Third Party Licence means any licence, registration or other authorisation that is required by Customer to enable Customer to properly access and use the Products and Services, including any licence, registration or other authorisation as notified by Mastt to Customer.
Update means any update, upgrade or modification to the Products and Services from time to time, but does not include new versions of the Products and Services, and accompanying revisions to the Mastt Documentation, as determined in the absolute discretion of Mastt.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) the singular includes the plural and conversely;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to a person includes any body corporate, unincorporated body or other entity and conversely;
(d) a reference to a clause is to a clause of these Terms and Conditions;
(e) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(f) a reference to any agreement or document (including a reference to this Agreement) is to that agreement or document as amended, notated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
(g) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(h) a reference to conduct includes any omissions, statement or undertaking, whether or not in writing;
(i) a reference to includes, means includes without limitation; and
(k) all references to $ are to Australian dollars, unless otherwise specified.
With Mastt, our client can see the status of the project anytime, reducing back and forth queries, and not having to wait until the end of the month to receive a monthly report.Discover Mastt's impact
Mastt has saved our team significant time and effort in managing the financials elements of 65+projects. The team now has total visibility over their individual projects as well as the overarching program of works.Discover Mastt's impact
Mastt takes away a lot of user error that spreadsheets bring. With Mastt, we are able to combine multiple projects into programs or portfolios for management level analysis and direction.Discover Mastt's impact
Mastt is increasing the team’s tempo and productivity by enabling real time information across our portfolio of projects. This transparency is assisting us to make informed decisions, to identify opportunities and reduce the risk.Discover Mastt's impact
Mastt's ability to record critical financial information as well as program forecasted delivery and milestones put Jacobs in a favourable position to our clients.Discover Mastt's impact
Moving to Mastt is one of the best decisions my team has ever made. It’s cost-effective, easy to use, and a quick set up.Discover Mastt's impact
A key factor in our decision to adopt Mastt is its user-friendliness. It had to continue to empower us to work smart, allowing us to consistently deliver excellence across multiple sectors and geographic regions.Discover Mastt's impact