RECITALS

A. MyEmpire is a cyber security consulting and technology business.

B. MyEmpire has offered to provide Services to the Company during the Term, pursuant to the terms and conditions of this Agreement.

C. The Company has accepted the offer to receive services from MyEmpire as defined in a Proposal.

 

1 DEFINITIONS AND INTERPRETATION

1.1 In this Agreement (including the recitals) unless the context otherwise requires:

Agreement means this agreement (including the recitals and any schedules), as amended or supplemented by the Parties in writing;

Business Day means the trading hours of banks in the jurisdiction in which the MyEmpire entity to this Agreement is based;

Company means the Company as set out in the Proposal;

Company Intellectual Property means the Intellectual Property of the Company developed, created by the Company prior to entering into this Agreement;

Confidential Information means information of a confidential nature which MyEmpire gives to the Company, or the Company gives to MyEmpire, under this Agreement whether given verbally or in writing, personal or otherwise, and includes documents, plans, marketing strategies, trade secrets, technical information, know-how, the Intellectual Property, and any intellectual property or other information or materials advised to be of a confidential nature where such information is not already in the public domain;

Commencement Date means the date set out in the Proposal, unless otherwise agreed in writing by the Parties;

Company Data means data owned by the Company from time to time;

Costs means any cost, charge, expense, outgoing, payment or other expenditure of any nature and where appropriate includes fees and disbursements payable to contractors, consultants and lawyers and includes legal costs on a standard basis (whichever is greater);

EU GDPR means the European Union General Data Protection Regulation No. 2016/679 and as amended from time to time;

Financial Year means the year commencing on 1 July and ending on the following 30 June;

Force Majeure means any act or cause beyond a Party’s reasonable control including but not limited to earthquake, acts of government, declarations of a pandemic or disease, industrial disputes, accident, fire, explosions, floods, interruptions in transport provided the Party has taken all proper precautions, due care and reasonable alternative measures with the object of avoiding the delay or failure to comply with the obligations under this Agreement;

Intellectual Property means (whether registered or not) all statutory and other rights in respect of copyright, registered and unregistered trade marks, registered and unregistered designs,

patents, semiconductor or circuit layout rights, all rights in relation to inventions, trade, business and company names and other proprietary rights, all rights arising out of intellectual activity in the industrial, commercial, scientific, literary or artistic fields and any rights to registration of such rights, whether created before on or after the Commencement Date and including the Trade Marks .

Jurisdiction means the state or county in the country where MyEmpire is located.

MyEmpire Intellectual Property means the Intellectual Property of MyEmpire developed or created by MyEmpire prior to entering into this Agreement;

Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal information or personal data under applicable Privacy Laws;

Personnel means a director, officer, employee, agent, contractor and/or servant;

Privacy Laws means all domestic and international privacy, data protection, and anti-spam laws, rules, regulations and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party and including, where relevant, the EU GDPR and/or the UK Privacy Law;

Project Intellectual Property means any Intellectual Property developed, created by the Company or MyEmpire during the Agreement in advancement of a Proposal, or brought into existence by the Company or MyEmpire for delivery of the Proposal, and excludes the Company Intellectual Property and the MyEmpire Intellectual Property;

Proposal means any document which the Parties may from time to time enter into which describes particular Services to be provided by MyEmpire to the Company including but not limited to any document titled “proposal” or “statement of work”. Each Proposal may specify such things as:

a. the identity of the relevant Company;

b. the Services to be provided to the Company under that Proposal;

c. the Service Fee payable by the Company to MyEmpire for the provision of the Services by MyEmpire in accordance with that Proposal;

d. the timing of payment of Service Fee and the manner of payment;

e. the dates for commencement and termination of the provision of the Services; and

f. any other particular matters, rights and obligations of the Parties relating to the Services specified in the Proposal.

Related Party means a person who is a director or related body corporate or a director of a related body corporate of MyEmpire or the Company;

Service Fees means the fees charged by MyEmpire to the Company for the provision of MyEmpire’s Services set out in the relevant Proposal in respect of the provision of the Services by MyEmpire in accordance with that Proposal;

Services mean any services set out in the Proposals as agreed between the Parties from time

to time;

Schedule means a schedule to this Agreement

Taxes means taxes, levies, imposts, charges and duties (including, stamp and transaction duties) imposed by any government agency, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income of the Company or MyEmpire:

Term means the period from the Commencement Date until the Agreement is terminated in accordance with its terms;

Trade Marks means the logo, trade names and other trade marks of which MyEmpire or the Company owns or licenses, and, if they are granted, any registered trade marks owned or licensed by MyEmpire or the Company, together with any other distinctive names, signs, designs, business marks, commercial symbols and colours of MyEmpire or the Company together with any variations or modifications of same; and

UK Privacy Law means United Kingdom General Data Protection Regulation and the Data Protection Act 2018 (UK) as amended from time to time.

1.2 In this Agreement unless the context otherwise requires:

(a) headings are for convenience only and do not affect its interpretation or construction;

(b) the singular includes the plural and vice versa;

(c) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this Agreement;

(d) words importing a gender include other genders;

(e) the word “person” means a natural person and any association, body or entity whether incorporated or not;

(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) “includes” is not a word of limitation;

(i) no rule of construction applies to the disadvantage of a Party because this Agreement is prepared by (or on behalf of) that Party;

(j) a reference to any thing is a reference to the whole and each part of it;

(k) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and

(l) a reference to a document includes all amendments or supplements to, or

replacements or novation of, that document.

 

2 AGREEMENT, APPOINTMENT AND TERM

2.1 Agreement

(a) The terms of this Master Services Agreement will apply to the Services MyEmpire provides to the Company under each Proposal during the Term. The Parties may agree in writing to variations to the Master Services Agreement.

(b) The Agreement consists of:

(i) each Proposal entered into between the Parties from time to time; and

(ii) this Master Services Agreement.

(c) To the extent of any inconsistency between the terms of this Master Services Agreement and a Proposal, the terms of the relevant Proposal will prevail in respect of the agreement formed between that Proposal and the Master Services Agreement.

(d) The Parties acknowledge that

(i) reference in this Agreement to “Proposal” is reference to a Proposal entered into by the Parties from time to time forming part of this Agreement; and

(ii) the Parties may at any time enter into any further Proposals dealing with the further supply of Services.

(e) Any such Proposal:

(i) unless rejected, must be signed by or on behalf of all the Parties; and

(ii) once signed by all Parties is incorporated into and forms part of this Agreement.

(f) MyEmpire will use reasonable endeavours to commence supplying the Services in accordance with the relevant Proposal. MyEmpire makes no guarantee that it will be able to supply the Services by any commencement date specified in the relevant Proposal. If the Proposal does not have a commencement date, MyEmpire will use reasonable endeavours to commence supplying the Services within a reasonable timeframe or on the date agreed between MyEmpire and the Company.

2.2 Appointment

(a) MyEmpire offers to provide Services to the Company under MyEmpire’s own name, for the Term, in accordance with the terms of the Agreement.

(b) The Company agrees MyEmpire will provide the Services in accordance with the appropriate Proposal during the Term and agrees to pay the Service Fees to MyEmpire on the terms and conditions set out in this Agreement and the relevant Proposal.

(c) MyEmpire may:

(i) subcontract all or part of the Services with the Company’s prior consent; and

(ii) to the extent necessary for the provision of the Services, and with the Company’s prior consent, share any information regarding the Company, a Proposal or the Services (including without limitation the Company Data and Confidential Information) with a MyEmpire Related Party or MyEmpire Related Body Corporate.

2.3 Term

(a) This Agreement commences on the Commencement Date and continues until it is terminated earlier in accordance with its terms.

 

3 NON-EXCLUSIVITY

3.1 The Company acknowledges and agrees that:

(a) MyEmpire will not solely or exclusively supply its Services to the Company;

(b) MyEmpire may provide the Services or like services to any third party.

 

4 COMPANY’S OBLIGATIONS

4.1 The Company must:

(a) follow all directions of MyEmpire in connection with the delivery of the Services;

(b) if the Company receives or becomes aware of any complaint or criticism against MyEmpire, immediately notify and provide MyEmpire with complete details of the complaint or criticism and fully cooperate with MyEmpire in taking whatever steps MyEmpire considers necessary to resolve the complaint or address the criticism; and

(c) pay the Service Fees in accordance with this Agreement and the appropriate Proposal.

 

5 CO-OPERATION

5.1 The Company must reasonably co-operate with MyEmpire and do all things MyEmpire reasonably requires to be done in order to allow MyEmpire to supply or continue supplying the Service safely and efficiently. This may include:

(a) providing additional information within a reasonable timeframe upon request;

(b) securing access to premises or systems to which the Service is being delivered or doing any other thing which is necessary for the delivery of the Services;

(c) making Personnel available to MyEmpire at a time and place notified by MyEmpire; and

(d) accepting any end-user licence agreement of MyEmpire’s third party supplier.

5.2 If the Company does not fully co-operate with MyEmpire to allow the Service to be supplied, or that supply to be maintained, MyEmpire may terminate or suspend the Services pursuant to this Agreement.

5.3 The Quality of the Service

(a) MyEmpire will provide the Services with reasonable care and skill;

(b) MyEmpire does not guarantee any result from the Services;

(c) should unexpected faults, situations or events hinder availability of the Services, MyEmpire will use reasonable endeavours to resolve those faults and restore the availability of the Service as soon as possible. MyEmpire reserves a right to charge fees in addition to the Service Fees for any actions taken by MyEmpire in accordance with this subclause (c), at its standard rates that may apply from time to time;

(d) to the extent possible at law, MyEmpire does not promise, warrant or guarantee that Services will be continuous or fault-free. Due to the nature of Services (including reliance on systems and services owned and operated by third parties), circumstances causing faults, errors, unplanned outages, unexpected results or unavailability may be beyond MyEmpire’s control.

 

6 REMUNERATION

6.1 The Company must pay to MyEmpire the Service Fees for provision of Services as specified in the relevant Proposal or elsewhere in this Agreement together with applicable Taxes.

6.2 The Service Fees must be paid within 14 days of MyEmpire providing an invoice to the Company for the Service Fee in accordance with the terms of the invoice, or unless otherwise agreed by both parties 6.3 If the Company fails to pay any Service Fees within the period specified in clause 6.2 then the Company must pay interest on all overdue monies at a rate equivalent to the reference rate charged by MyEmpire’s principal bank calculated on a daily basis until paid and if not paid within 14 days of first becoming due the interest unpaid shall capitalise and thereafter itself attract interest at that rate. 6.4 In addition to the Service Fees paid or payable under clause 6.1 the Company must reimburse MyEmpire for all out-of-pocket expenses reasonably incurred in MyEmpire in providing the Services which expenses are previously authorised by the Company in writing. Payment is due within 14 days after MyEmpire gives the Company an invoice accompanied by such supporting documentation as the Company reasonably requests, or unless otherwise agreed by both parties.

 

7 USE OF TRADE MARKS AND INTELLECTUAL PROPERTY

7.1 Except as provided in this Agreement neither Party shall have any right to access or exploit any Intellectual Property of the other.

7.2 The Company retains ownership of all Company Intellectual Property.

7.3 MyEmpire retains ownership of all MyEmpire Intellectual Property.

7.4 Unless otherwise agreed by the Parties and specified in the Proposal, all intellectual property rights in Project Intellectual Property will be owned by MyEmpire and the Company must do all things necessary to assign or transfer ownership of any Project Intellectual Property to MyEmpire.

7.5 If either Party (a first Party) becomes aware of a third party acting in such a way as to possibly breach the Intellectual Property rights of the other Party then it must promptly notify the other Party and provide reasonable assistance, at no cost to the first Party, to allow the other Party to protect its interests.

7.6 Nothing in this Agreement assigns Intellectual Property in Company Data.

7.7 Except as permitted by this Agreement, no Party shall use the second Party’s Intellectual Property, or Confidential Information, including, without limitation the Party’s name, domain names, trade marks, brands, and/or logos, and/or copyright material in any external market communications, publications, press releases, publicity, marketing or sales material, websites or other materials developed by or on behalf of the first Party, without prior written approval of the second Party, such approval not to be unreasonably withheld or delayed, and, such approval may be given subject to such conditions as the second Party reasonably requires.

7.8 The Parties acknowledge that: (a) a breach of this clause 7 by one Party would be harmful to the business of the other Party;

(b) monetary damages alone would not be a sufficient remedy for the breach; and

(c) in addition to any other remedy which may be available in law or equity, the Party not in breach is entitled to interim, interlocutory and permanent injunctions or any of them to prevent the breach or any further breach.

7.9 Each Party warrants that it has title to its Intellectual Property which it uses or provides to the other Party pursuant to this Agreement and indemnifies the other Party in the event of a breach of a third party’s Intellectual Property rights.

7.10 The Company indemnifies and shall keep indemnified MyEmpire in respect of any damage, loss, liability, cost or claim caused by the breach of this clause by the Company.

 

8 CONFIDENTIALITY AND NON-DISCLOSURE

8.1 All obligations of confidence set out in this Agreement continue in full force and effect during this Agreement and after the termination of this Agreement.

8.2 The Parties must not disclose any Confidential Information to any third party without the prior written consent of the other Party.

8.3 If either Party discloses any Confidential Information to a third party without prior consent, that Party will notify the other as soon as practicable. 8.4 Notwithstanding Clause 8.3, if a Party discloses any Confidential Information to a third party without the prior written consent, that Party is liable for any direct or indirect loss or damage (including legal costs on a standard basis) suffered as a consequence of the disclosure.

8.5 Each Party must keep confidential the terms of this Agreement. If a Party becomes aware of a breach of this obligation, that Party will immediately notify the other Party.

8.6 This Agreement prohibits the disclosure of Confidential Information with exception to the following circumstances:

(a) the disclosure is to a professional adviser to provide legal or accounting advice in relation to matters arising under or in connection with this Agreement;

(b) the disclosure is required by applicable law or regulation; or

(c) if the Confidential Information is already in the public domain at no fault of the disclosing Party.

 

9 RESTRAINT

9.1 For the purposes of this clause 10, the term “Restraint Period” means 18 months from the termination of this Agreement, nonetheless:

(a) if the Courts determine that 18 months is unreasonable, the restraint will last for a period of 12 months from the termination of this Agreement; or

(b) if the Courts determine that 12 months is unreasonable, the restraint will last for a period of 9 months from the termination of this Agreement; or

(c) if the Courts determine that 9 months is unreasonable, the restraint will last for a period of 6 months from the termination of this Agreement.

9.2 Company Non-Solicitation of Personnel

(a) During the course of this Agreement, the Company may have access to commercially sensitive information and material of MyEmpire. The Company will not during the Term of this Agreement or during the Restraint Period, either directly or indirectly, without written consent from MyEmpire:

(i) employ, canvas, solicit, entice or engage any of MyEmpire’s Personnel, to terminate their employment or engagement with MyEmpire with whom the Company has worked or had dealings with at any time during within 12 months preceding the termination of this Agreement; and

(ii) employ, engage, retain or sources any of MyEmpire’s Personnel for any services that are of a competitive nature to MyEmpire’s business with whom the Company has worked or had dealings with at any time during within 12 months preceding the termination of this Agreement.

(b) The Company agrees that the restraints contained in this clause are reasonably necessary to protect MyEmpire’s business interests and the Company acknowledges that this clause is fair and reasonable under the circumstances.

9.3 MyEmpire Non-Solicitation of Personnel

(a) During the course of this Agreement, MyEmpire may have access to commercially sensitive information and material of the Company. MyEmpire will not during the Term of this Agreement or during the Restraint Period , either directly or indirectly, without written consent from the Company:

(i) employ, canvas, solicit, entice or engage any of the Company’s Personnel, to terminate their employment or engagement with the Company with whom MyEmpire has worked or had dealings with at any time during within 12 months preceding the termination of this Agreement; and

(ii) employ, engage, retain or source any of the Company’s Personnel for any services that are of a competitive nature to the Company’s business with whom MyEmpire has worked or had dealings with at any time during within 12 months preceding the termination of this Agreement.

(b) MyEmpire agrees that the restraints contained in this clause are reasonably necessary to protect the Company’s business interests and the Company acknowledges that this clause is fair and reasonable under the circumstances. 9.4 Each restraint in this clause 10 constitutes a separate and independent provision, severable from other restraints. If a court of competent jurisdiction finally decides any such restraint to be unenforceable in whole or in part, the enforceability of the remainder of that restraint and any other restraint will not be affected.

9.5 This clause survives termination of this Agreement for any reason.

 

10 ENFORCEMENT OF RIGHTS

10.1 A failure of a Party at any time to require performance of any obligation under this Agreement is not a waiver of that Party’s right:

(a) to claim damages for breach of that obligation; or

(b) at any time to require performance of that or any other obligation under this Agreement, unless written notice to that effect is given.

10.2 Waiver of any provision of or right under this Agreement:

(a) must be in writing, signed by the Party entitled to the benefit of that provision or right; and

(b) is effective only to the extent set out in the written waiver.

 

11 WARRANTIES, RELATIONSHIP AND INSURANCE LIABILITIES

11.1 Company’s Acknowledgment

(a) The Company warrants that each of the Company’s warranties set out below are true and accurate at the date of this Agreement:

(i) The Company warrants that it will conduct its business as an independent proprietor to MyEmpire;

(ii) The Company warrants that under no circumstances is there, or will there be, a relationship of partnership, agency or employment which exists or is intended or is to be implied between the Parties to this Agreement;

(iii) The Company warrants that it agrees to indemnify and keep indemnified MyEmpire and its related bodies corporate against any claim whatsoever and howsoever arising out of or in relation to the law or any determination including a claim for wages, salary, bonuses, leave, accrued leave, allowances, superannuation payments, expenses, ladings and any loss, damage or liability arising thereof out of or in relation to a claim thereof alleging breach of contract, breach of equitable duty, breach of statutory duty, negligence or unfair contract;

11.2 MyEmpire’s Acknowledgment

(a) MyEmpire warrants that each of the MyEmpire warranties set out below are true and accurate at the date of this Agreement:

(i) MyEmpire warrants that it will conduct its business as an independent proprietor to the Company;

(ii) MyEmpire warrants that under no circumstances is there, or will there be, a relationship of partnership, agency or employment which exists or is intended or is to be implied between the Parties to this Agreement;

(iii) MyEmpire warrants that it agrees to indemnify and keep indemnified the Company and its related bodies corporate against any claim whatsoever and howsoever arising out of or in relation to the law or any determination including a claim for wages, salary, bonuses, leave, accrued leave, allowances, superannuation payments, expenses, ladings and any loss, damage or liability arising thereof out of or in relation to a claim thereof alleging breach of contract, breach of equitable duty, breach of statutory duty, negligence or unfair contract;

(iv) MyEmpire warrants that it has, or will have, within seven (7) days from the date of this Agreement:

(A) public liability insurance; and

(B) all insurances that may be required under the relevant workers’ compensation law in relation to the persons involved in performing MyEmpire’s obligations set out in this Agre

(C) will provide the Company, when requested, a certificate of currency within seven (7) days of request.

 

12 MODERN SLAVERY AND INFORMATION SECURITY

12.1 Modern Slavery

(a) Notwithstanding any other provision of this Agreement or any terms referenced in this Agreement, MyEmpire represents and warrants to the Company that MyEmpire will implement a policy to address Modern Slavery and will continue to take reasonable steps to identify the risk of, and prevent the occurrence of, Modern Slavery within its organisation or supply chains and to otherwise ensure compliance with the Modern Slavery Laws.

(b) In this Agreement ‘Modern Slavery’ means a serious exploitation of an individual’s human rights and includes exploitative practices such as human trafficking, slavery, servitude, forced labour, debt bondage and forced marriage and ‘Modern Slavery Laws’ means the laws in any jurisdiction requiring organisations to report on, and assess and manage risks in relation to, slavery, servitude, forced labour, trafficking in persons and/or similar activities.

12.2 Information Security

(a) Notwithstanding any other provision of this Agreement or any terms referenced in this Agreement, MyEmpire warrants that it has and will continue to have in place controls and measures in accordance with good industry practice to ensure the security, safety and integrity of Company Data, to ensure that Company Data is not subject to any misuse, interference or loss, unauthorised access, modification or disclosure and to prevent, detect and respond to and reduce the likelihood or impact of an Information Security Incident (‘Information Security Controls’).

(b) MyEmpire will provide such information about its Information Security Controls to the Company as the Company reasonably requests and when any material amendment is made to the Information Security Controls.

(c) MyEmpire will notify the Company of any Information Security Incident immediately (and in any case, within 24 hours) upon becoming aware of an Information Security Incident, including any details that have been notified to any regulators in the Company’s jurisdiction.

(d) MyEmpire will regularly test the Information Security Controls (including regular, periodic testing using appropriately skilled and independent third parties) and MyEmpire will provide the Company with information reasonably requested by the Company about the Information Security Control testing regime of MyEmpire so that the Company can understand the nature, frequency and results of the testing regime. For clarity, nothing in this clause requires MyEmpire to provide information that may increase the risk of an information security incident, or impact on other clients of MyEmpire.

(e) In this Agreement, ‘Information Security Incident’ means any actual compromise of information security of Company Data including any such compromise of a MyEmpire system or database which holds, stores or processes Company Data.

 

13 NOTIFY BREACHES

13.1 The Parties must disclose to the other anything that has or will constitute a material breach of a warranty or cause a warranty to be untrue or inaccurate, as soon as practicable after the Party becomes aware of it during the Term.

 

14 TAXES

14.1 The Company is liable for all Taxes arising from or relating to this Agreement and must pay:

(a) Taxes payable in respect of a supply made under or in relation to this Agreement, directly to MyEmpire;

(b) Taxes which are imposed on MyEmpire, directly to the relevant government agency; and

(c) Taxes which are imposed on the Company, directly to the relevant government agency,

on behalf of MyEmpire, on or before the latest date that the Tax is due for payment without incurring any penalty, interest or additional Tax for late payment. 14.2 Any additional amount of Taxes recoverable from the Company under clause 14.1 is payable on provision by MyEmpire of a Tax Invoice.

 

15 INDEMNITY AND LIMITATION OF LIABILITY

15.1 Subject to clause 15.5 MyEmpire is not liable to the Company for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, except to the extent that such liability may not lawfully be limited or excluded. For the avoidance of doubt this extends to any employees, contractors, agents, representatives, licensees or permitted assigns of the Company. 15.2 Despite the generality of clause 15.1, MyEmpire expressly excludes liability for consequential loss or damage which may arise in relation to the Services or for loss of data, loss of, or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct, indirect, economic, consequential howsoever arising by way of act or omission in contract or in tort. The Company agrees to release and indemnify MyEmpire to that extent.

15.3 Where MyEmpire cannot by law exclude such liability, its liability to the Company will be limited, at MyEmpire’s choice, to:

(a) if the breach relates to goods — the replacement or repair the goods; or

(b) if the breach relates to Services — the supply of those Services or the payment of the cost of those Services supplied again.

15.4 This clause applies despite anything else in the Agreement and to the fullest extent permitted by law. 15.5 Despite clause 15.1, the limitation of liability set out in clause 15.1 will not apply to any liability arising as a result of, or in connection with:

(a) fraud or wilful misconduct by MyEmpire;

(b) breach of confidentiality by MyEmpire;

(c) breach of privacy by MyEmpire; or

(d) infringement of a third party’s Intellectual Property rights by MyEmpire. 15.6 For the purposes of clause 15.5, the term MyEmpire means the company, its officers, employees, sub-contractors, suppliers and agents, whether individually or collectively.

15.7 To the fullest extent permitted by law, MyEmpire excludes all warranties implied by law except as expressly set out in the Agreement.

15.8 The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage was caused by the other party’s failure to comply with its obligations and responsibilities under this Agreement or to the extent that the negligence of the other party contributed to such loss or damage, regardless of whether a claim is made by the other party for breach of contract or for negligence.

 

16 GENERAL DISCLAIMER

16.1 Everything provided to the other Party is “as is” and “as available” without warranty or condition of any kind, subject to any liability which cannot be excluded by law. None of the Parties or their Personnel make any express or implied representation or warranty about, or shall be liable, in contract, tort (including negligence) or otherwise for any direct, indirect, special or consequential loss, damages or reliance in connection with the Proposal, and all other Services. This includes (but is not restricted to) loss or damage a Party might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or any other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; or

(b) the accuracy, suitability or currency of any information provided in connection with the Proposal.

 

17 TERMINATION

17.1 Either Party may without giving any reason terminate this Agreement by giving 1 month written notice in writing to the other Party.

17.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;

(b) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) the other party:

(i) is insolvent;

(ii) states that it is insolvent;

(iii) is presumed to be insolvent under an applicable law; or

(iv) otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;

(v) a liquidator or provisional liquidator is appointed to the other party;

(vi) an administrator is appointed to the other party;

(vii) a controller is appointed to the other party or any of its assets;

(viii) a receiver is appointed to the other party or any of its assets;

(ix) an application is made to a court for an order, or an order is made, that the other party may be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed to that other party, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;

(x) the other party enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;

(xi) the other party proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;

(xii) the other party it is taken to have failed to comply with a statutory demand;

(xiii) where a party is a company, a notice is issued to the other party stating that an application has been made for the first party to be deregistered, and is not withdrawn or dismissed within 15 Business Days;

(xiv) a writ of execution for an amount of in excess of $20,000 AUD is levied against the other party which is not dismissed within 15 Business Days; or

(xv) the other party ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement.

17.3 Without affecting any other right or remedy available to it, MyEmpire may terminate this Agreement with immediate effect by giving written notice to the Company if: (a) the Company is in breach of clauses 5, 6, 7 or 8;

(b) Company fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or

(c) there is a change of control of the Company. 17.4 On termination of this agreement under this Clause 17:

(a) all existing Proposals will terminate automatically;

(b) the Company must immediately pay to MyEmpire all of MyEmpire’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, MyEmpire may submit an invoice, which shall be payable immediately on receipt;

(c) the Company must, within a reasonable time, return all of MyEmpire’s equipment and Confidential Information. If the Company fails to do so, then MyEmpire may enter the Company’s premises and take possession of MyEmpire’s equipment and Confidential Information; and (d) the following clauses will continue in force: Clauses 1, 8, 9, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24..

17.5 Termination or expiry of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

17.6 By terminating this Agreement, a Party must not impair or do anything calculated or likely to impair or damage the other Party’s goodwill or reputation or Intellectual Property. The Party’s consent to any injunction being granted against the other Party to obtain the full benefit of this Clause 17.6. It is declared and agreed that each of the restraints and restrictions provided in this clause and the Agreement generally operate as a separate and independent obligation on the Parties and will not be affected by any one or more of the other restraints or restrictions contained in this Agreement.

 

18 DISPUTE RESOLUTION & MEDIATION

18.1 If a dispute arises out of or relates to the terms of this Agreement, either Party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

18.2 A Party to this Contract claiming a dispute (the “Dispute”) has arisen under the terms of this Agreement, must give written notice to the other Party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the “Notice”).

18.3 On receipt of the Notice by the other Party, the Parties to this Contract (the “Parties”) must within seven (7) days of the Notice endeavor in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

18.4 If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the relevant dispute center of the Jurisdiction and attend a mediation.

18.5 It is agreed that mediation will be held in the Jurisdiction.

18.6 The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.

18.7 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.

18.8 If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

18.9 In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

18.10 Any information or documents disclosed by a Party under this clause:

(a) must be kept confidential; and

(b) may not be used except to attempt to resolve the Dispute.

18.11 Each Party must bear its own costs of complying with this clause and the Parties must bear equally the costs of any mediator engaged.

 

19 FORCE MAJEURE & UNCONTROLLABLE ACTIONS

19.1 The Parties and their Personnel are not liable for any failure, delay, interruption, corruption, errors or faults which are a consequence of any Force Majeure, or the inability of a Party’s normal suppliers to supply necessary materials or services, interruption or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or hardware or inability to obtain energy which is needed for the provision of the any services or products or any other matter beyond a Party’s control.

 

20 GOVERNING LAW, JURISDICTION AND VENUE

20.1 This Agreement is governed by the laws of the Jurisdiction and the Parties submit to the exclusive jurisdiction of its courts. The Parties will not object to the exercise of jurisdiction by those courts, unless the Parties have not complied with clause 18. The Parties agree the venue for any dispute is the Jurisdiction.

 

21 COSTS

21.1 All duty on or in respect of this Agreement or in respect of any instrument or transaction contemplated by this Agreement must be paid by the Company.

 

22 NOTICES

22.1 Subject to clause 22.2, any notice (which includes, without limitation, a demand, request, consent, approval and any other communication made, required or authorised under this Agreement) given under this Agreement must be:

(a) in writing;

(b) directed to the recipient’s email address, as varied by any notice; and

(c) hand delivered or sent by prepaid post to that address. 22.2 A notice given in accordance with clause 22.2 is taken to be received by the recipient:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, within the country of the Jurisdiction, two (2) Business Days after the date of posting;

(c) if sent by email correspondence, when the email correspondence is sent by the sender and does not receive a transmission failure notice within one Business Day after that transmission.

(d) In all cases, a notice received after 5.00pm in the place of receipt or on a day that is not a Business Day is taken to be received by the recipient at 9.00am on the next Business Day.

22.3 A notice given under this Agreement is sufficiently signed if:

(a) it is signed by a director, secretary or other officer of, or a legal practitioner acting for, MyEmpire; or

(b) in the case of an individual, it is signed by the individual. 22.4 The provisions of this Clause 22 are in addition to any other mode of service permitted by law.

 

23 SEVERANCE

23.1 The Parties agree that a construction of this Agreement that results in all provisions being enforceable is to be preferred to any other construction. 23.2 If, despite the application of Clause 23.1, a provision of this Agreement is illegal or unenforceable:

(a) where possible, the provision is amended by omitting a word or words which make the provision illegal or unenforceable; and

(b) in any other case, the whole provision is omitted, and the remainder of this Agreement continues in force.

 

24 GENERAL

24.1 All monetary amounts are expressed in the currency specified in the Proposal and/or invoice.

24.2 This Agreement:

(a) constitutes the whole agreement between the Parties; and

(b) supersedes all prior representations, warranties, arrangements, understandings and agreements between the Parties, relating to the subject matter of this Agreement.

24.3 The Parties must not assign any right under this Agreement without the prior written consent of the other Party, which will not unreasonably withhold the said consent.

24.4 This Agreement may be executed in any number of counterparts and all the counterparts together constitute one and the same instrument. This Agreement may be executed by any of manual execution of a hard copy document and execution by electronic signature of an electronic document such as ‘PandaDocs’, ‘SignIT’, ‘DocuSign’ or any other electronic signature program that has been agreed to by the Parties in writing. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or by PDF file (portable document format file) shall be effective as delivery of a manually executed counterpart of this Agreement

24.5 This Agreement may only be altered in writing signed by the Parties.

24.6 Each Party must, without further consideration, sign, execute and deliver any document and perform any other act that is necessary or desirable to give full effect to this Agreement.

24.7 No rule or contract interpretation must be applied in the interpretation of this Agreement to the disadvantage of one Party on the basis that it prepared or put forward this Agreement or any document comprising part of this Agreement.