Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S PURCHASE AND ONGOING USE OF THE SERVICES. BY
ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK,
CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
“Additional Services” means services requested by Customer.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of
this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Commencement Date” means the date set out in the Schedule.
“Customer” means the company or other legal entity identified in the Schedule, and Affiliates of that company or entity.
“Customer Data” means all electronic data or information submitted or supplied by Customer and includes data extracted from Customer’s system or hardware
for the purposes of providing the Services and all data on any Equipment provided to Us.
“Equipment” means physical devices provided to Us by Customer in association with the provision of the Services.
“Fee” means the fees to be paid to Us by Customer as set out in any SOW for the Services.
“Initial Term” means the period set out in the Schedule.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth).
“Service” means the services provided by Us as set out in an SOW.
“Special Instructions” means instructions given by Customer to Us as set out in any applicable SOW in relation to the provision of the Services.
“Statement of Work” (“SOW”) means a (i) written document executed between the parties that includes at least the following information: (a) a description of
the Services and Deliverables; (b) the parties’ responsibilities; and (c) the service fees and method of calculation (if applicable), or (ii) a purchase order for the
purchase of standard Services offered on our price list (as advertised from time to time) that is signed by Customer and accepted by Us.
“We,” “Us” or “Our” refers to Greenbox Systems Pty Ltd atf TRM Trust ABN 97 180 880 469, of 39 Proprietary Street, Tingalpa, Queensland, Australia and our Affiliates.
2. SERVICE SCHEDULES
2.1. Incorporated Terms.
This Agreement incorporates each SOW entered into by the parties at the Commencement Date and any SOW added to this Agreement under clause 2.2.
2.2. New SOWs.
Where the parties agree that new Services will be provided by Us, the parties will enter into a new SOW which will then form part of this Agreement. All new
(a) be in writing; and
(b) specify any Special Instructions; and
(c) be signed by an authorised representative of each party.
2.3. Ancillary Services
The parties agree that notwithstanding any provision of this Agreement, if We provide ancillary services to the Customer for which there is no formal agreement
or SOW, those services are provided subject to the terms and conditions of this Agreement.
3. THE SERVICES
3.1. Provision of the Services.
In consideration of payment of the Fee by Customer to Us, we will provide Services to the Customer pursuant to this Agreement and the relevant SOWs during
4. USE OF THE SERVICES
4.1. Customer Responsibilities.
Customer will (i) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer
Data and (ii) only use the Services in accordance with applicable laws and government regulations and in accordance with this Agreement. Customer will not
use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party
4.2. Special Instructions.
(a) We will comply with all reasonable Special Instructions given by Customer in relation to the Services, provided those instructions are not
inconsistent with applicable laws and government regulations or the Services themselves.
(b) To the extent permitted by law, We make no warranty or representation in relation to the Special Instructions and any conditions or warranties
otherwise implied by statute or any other law are expressly excluded.
(c) We rely on the Customer as to the truth, accuracy, fitness for purpose or suitability of any Special Instructions. Customer accepts sole responsibility
for our compliance with any Special Instructions and must satisfy itself as to the truth, accuracy, fitness for purpose or suitability of any Special
(d) Customer indemnifies Us, our agents and employees against all claims, demands, actions, costs (including legal costs on a full indemnity basis),
charges, expenses, loss, damages or other liability arising from Our compliance with any Special Instructions including (without limitation) any
modification or destruction of Customer Data or Equipment.
5. FEES AND PAYMENT FOR SERVICES
Customer will be responsible for payment of all Fees specified in all SOWs (including fees for Additional Services). Except as otherwise specified herein or in an
SOW, (i) Fees are quoted and payable in Australian dollars (ii) Fees are based on services purchased and not actual usage and (iii) payment obligations are noncancellable
and to the extent permitted by law Fees paid are non-refundable.
5.2. Invoicing and Payment.
We will invoice Customer in advance or otherwise in accordance with the SOW. Unless otherwise stated in the SOW, Fees are due 30 days from the invoice date.
Customer is responsible for maintaining complete and accurate billing and contact information with Us.
5.3. Disputed Invoices.
If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by Us the Customer must pay the undisputed component and
must notify Us in writing within fourteen (14) days after receipt of the invoice of the amount in dispute and the grounds of the dispute. We will respond to this
dispute notice and if a resolution is not reached as to the dispute within fourteen (14) days after receipt of the dispute notice then Clause 14.11 will apply.
5.4. Overdue Fees.
If any fees are not received from Customer by the due date then at Our discretion, (a) such fees may accrue late interest at the rate of 1% of the outstanding
balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may
impose conditions on future service renewals and SOWs, including requiring payment terms shorter than those specified in Clause 5.2 or any SOW; and/or (c)
We may, without limiting Our other rights and remedies, suspend Services until such amounts are paid in full.
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to goods
and services, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).
Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If We have the legal obligation to pay or collect Taxes for which
Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provide Us with a valid tax
exemption certificate authorised by the appropriate taxing authority.
5.6. Fee Increases.
Unless otherwise specified in the applicable SOW, any increase to the per-unit pricing will be advised by Us to You in writing within one month prior to the
commencement of a renewal term as per Clause 12.1.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property
rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. New Intellectual Property.
We will own all the intellectual property rights in all materials created by Us as a result of performing the Services, including any deliverables regardless of
whether Customer suggested, contributed to or otherwise brought into existence the development, improvement or amendment.
7.1. Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”),
whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information
and the circumstances of disclosure. Customer‘s Confidential Information will include Customer Data; Our Confidential Information will include the Services;
and Confidential Information of each party will include the terms and conditions of this Agreement and all SOWs, as well as business and marketing plans,
technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other
than Customer Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing
Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is
received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality
of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing
Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to
those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality
agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the
Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the
Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of
a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the
Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8.1. Transfer Under SOW.
If any applicable SOW indicates that the title in the Equipment supplied under that SOW transfers to Us then full title and ownership in that Equipment transfers
to Us at the time we provide you with a report on the value placed in the Equipment or part thereof.
8.2. Transfer In Writing.
If any applicable SOW indicates that the title in the Equipment supplied under that SOW does not transfer to Us, title in the Equipment shall not pass to Us until
Customer indicates in writing to Us that ownership in the Equipment has passed to Us.
8.3. No Further Rights.
Customer agrees that once title in the Equipment has transferred to Us it has no further rights in the Equipment and the Equipment will not, under any
circumstances, be returned to it. Customer also agrees that once title in the Equipment has transferred to Us it has no right to control or otherwise restrain Our
use or destruction of the Customer Data.
Neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties,
including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. To the extent permitted by
law, We do not warrant or represent that (i) the Services will meet the customer’s requirements, (ii) the Services will be uninterrupted, timely or with any other
hardware, software, system or data, or (iii) the quality of any products, services, content, information, software or other materials that customer obtains through
use of the Service will meet your expectations.
The parties agree that the Services are not services ordinarily acquired for personal, domestic or household use or consumption. To the extent permitted by
law, Our liability for any failure to comply with any warranties, conditions, guarantees or obligations implied or imposed by legislation will be limited, at Our
option, to one or more of the following:-
(a) If the breach relates to goods;
(i) The replacement of the goods or the supply of equivalent goods;
(ii) The repair of such goods;
(iii) The payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) The payment of the cost of having the goods repaired; and
(b) If the breach relates to services:-
(i) The supplying of the services again; or
(ii) The payment of the cost of having the services supplied again.
9.3. Matters out of Our Control
To the extent permitted by law, We are not responsible for, and Customer will not be entitled to a refund or any other damages as a result of, any failures of
Our service providers, computer viruses, natural disasters or other destruction or damage of Our facilities, acts of nature, war, civil disturbance, or any other
cause beyond Our reasonable control.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us.
We will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of
the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and will indemnify Customer for any damages
finally awarded against, and for reasonable legal fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly give Us
written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement
unconditionally releases Customer of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
10.2. Indemnification by Customer.
Customer will defend Us against any Claim made or brought against Us by a third party alleging that Customer Data, or Customer’s use of the Services in violation
of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and will indemnify Us for any and all
damages and monies finally awarded against (including all legal fees incurred by) Us in connection with any such Claim.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability.
To the extent permitted by law, in no event will either party’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under
any other theory of liability, exceed the total amount paid by customer hereunder or, with respect to any single incident, the lesser of $100,000 or the amount
paid by Customer hereunder in the 6 months preceding the incident. The foregoing will not limit customer’s payment obligations under clause 5 (fees and
payment for services).
11.2. Exclusion of Consequential and Related Damages.
In no event will either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or
punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the
possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.
12. TERM AND TERMINATION
12.1. Term of Agreement.
This Agreement commences on the Commencement Date and continues until the expiry of the Initial Term unless extended by mutual agreement between the
12.2. Expiry of Service Schedules
Either party may terminate this Agreement following termination or expiry of all SOWs in accordance with their terms by giving 10 Business Days’ notice in
writing to the other party.
12.3. Termination for Cause.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the
expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination.
Upon any termination for cause by Customer, We will refund Customer any prepaid fees covering the remainder of the term of this Agreement after the effective
date of termination. Upon any termination for cause by Us, Customer will pay any unpaid fees covering the remainder of the term of all SOWs after the effective
date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to Us for the period prior to the effective date
12.5. Surviving Provisions.
Clause 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Disclaimer), 9 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of
Liability), 12.4 (Refund or Payment upon Termination), and 14 (General Provisions) will survive any termination or expiration of this Agreement.
13. PRIVACY AND CUSTOMER DATA
13.1. Protection of Customer Data.
Subject to clause 13.2, where it is appropriate under any applicable SOW to do so, until title in the Equipment transfers to Us under clause 8:
(a) We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of
(b) We will not, unless required by Customer, law or government regulation to do so, (i) modify Customer Data, (ii) disclose Customer Data or (ii) access
Customer Data, except to provide the Services.
13.2. Personal Information
We accept that some of the Customer Data may be Personal Information. Subject to clause 13.5 to the extent it is reasonable and lawful to do so We will comply
with the Privacy Act.
into and is a part of this Agreement. The Service is provided from Australia. If Customer is located in the United States, the European Union or other regions
with laws governing data collection and use that may differ from Australia law. By providing Customer Data to Us or providing Equipment to Us that contains
Customer Data (either intentionally or otherwise), Customer warrants to Us that: Customer is authorised to distribute Customer Data to Us, and Customer is
not breaching any applicable data privacy rule or regulations, any contractual obligations, or any of its internal privacy policies.
13.4. Responsibility for Data
Customer acknowledges that by using the Service, Customer Data may be transmitted outside Our system and overseas.
13.5. Unsolicited Personal Information
(a) The parties acknowledge that from time to time, We may receive unsolicited Personal Information from Customer which We are not otherwise
entitled to hold or retain. The parties also acknowledge that it may not be lawful or reasonable for Us to wipe or de-identify that Personal
(b) If Customer has elected under any applicable SOW that:
a. any such unsolicited Personal Information is to be wiped or de-identified; or
b. any Equipment containing any such unsolicited Personal Information is to be returned to Customer;
those services will be considered Additional Services in addition to the Services under the applicable SOW and will be charged to Customer at Our
then standard rates.
(c) If no such election has been made under the applicable SOW then We may, at our full discretion, either:
a. wipe or de-identify any such unsolicited Personal Information; or
b. return any Equipment containing any such unsolicited Personal Information to Customer;
and those services will be considered Additional Services in addition to the Services under the applicable SOW and will be charged to Customer at
Our then standard rates.
Customer will defend Us against any Claim made or brought against Us by any person alleging that we have breached any applicable privacy law including the
Privacy Act (Cth) in respect of the Customer Data and will indemnify Us for any and all damages and monies finally awarded against (including all legal fees
incurred by) Us in connection with any such Claim.
14. GENERAL PROVISIONS
14.1. Governing Law.
This Agreement and any claims related to it will be governed by the laws of New South Wales, Australia as such laws apply to contracts between residents of
that jurisdiction performed entirely within such jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to
this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the courts of Sydney, Queensland and each party
irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If there is a dispute regarding intellectual property rights,
the dispute shall be resolved with regard to the laws of the Commonwealth of Australia.
Customer should direct notices to Greenbox Systems Pty Ltd ACN 099 162 357, of 39 Proprietary Street, Tingalpa, Queensland, Australia. Unless otherwise
notified by Customer, We will direct notices to Customer at the address shown in the Schedule or an applicable SOW. Notices to Customer will be addressed to
the system administrator designated by Customer, except in the case of billing-related notices, which will be addressed to the relevant billing contact designated
by Customer. All notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the
second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email.
14.3. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship
between the parties.
14.4. Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the
remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If a clause or part of a clause of this Agreement; (i) can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes
it legal, enforceable and valid, it shall be read in the latter way; (ii) is illegal, unenforceable or invalid, that clause or part is to be treated as severed from this
document, but the rest of this document is not affected; or (iii) can be read in a way that creates any ambiguity or inconsistency, we agree it must be read in
such a way so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement
will remain in effect.
14.6. Legal Fees.
Customer will pay on demand all of Our reasonable legal fees and other costs incurred by Us resulting from any breach by Customer of this Agreement or any
action We take to enforce or to attempt to enforce the terms of this Agreement including any steps taken to terminate this Agreement.
14.7. Assignment and Subcontracting.
Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its license to use any Software) to any
third party without Our prior written consent and subject to any conditions set forth by Us. Any attempted assignment or transfer in violation of the foregoing
will be void. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all SOWs), without consent of the other party, to
its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor
of the other party.
Customer agrees that We may subcontract our obligations under this Agreement and any applicable SOW.
14.8. Entire Agreement.
This Agreement, including all SOWs and any attachments thereto, constitutes the entire agreement between the parties and supersedes all prior and
contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as provided under Clause 14.12, no
modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the
party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions
in the body of this Agreement and any SOW or any attachment to an SOW, the terms of such SOW and any attachment will prevail. Notwithstanding any language
to the contrary therein, no terms or conditions stated in a Customer’s purchase order or other order documentation (excluding SOWs) will be incorporated into
or form any part of this Agreement, and all such terms or conditions will be null and void.
14.9. Export Compliance.
Customer will comply with all applicable export and import control laws and regulations in its use of the Software and the Services and, in particular, Customer
will not export or re-export the Software or the Service without all required government licenses and Customer agrees to comply with the export laws,
restrictions, national security controls and regulations of all applicable foreign agencies or authorities. Customer will defend, indemnify, and hold Us harmless
from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
14.10. Force Majeure
Neither party shall be liable for any delays in performance of any of the obligations hereunder due to causes beyond its reasonable control including, without
limitation, fire, strike, war, riots, acts of any civil or military authority, acts of God, judicial action, unavailability or shortages of labour, materials or equipment,
failure or delays in delivery of vendors and suppliers or delays in transportation.
14.11. Dispute Resolution
Upon any dispute, controversy or claim between the parties, relating in any way to this Agreement, (except as it relates to a confidentiality violation or an
intellectual property right), each of the parties will designate a representative from the senior management, who (to the extent practicable) does not devote
substantially all of his or her time to performance of this Agreement, to attempt to resolve such matter. The designated representatives will negotiate in good
faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this 30 day period the parties must submit the matter
to binding arbitration in the jurisdiction listed in clause 14.1. Such arbitration shall be conducted in English, by a single arbitrator, independent of both parties,
who is skilled in the legal and business aspects of the software industry. Any such controversy or claim will be arbitrated on an individual basis and will not be
consolidated in any arbitration with any claim or controversy of any other party. Judgment on the arbitration award may be entered in any court having
jurisdiction thereof. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of
such limitation will be deemed void as between the parties. Either party may seek any interim or preliminary relief from a court of competent jurisdiction
necessary to protect the rights or the property of that party (or its affiliates, agents, suppliers, and subcontractors), pending the completion of arbitration.
We may amend or modify these terms and conditions by written notice to Customer and any such amendments or modifications will take effect on the renewal
or extension of this Agreement pursuant to Clause 12.1.
In this Agreement, unless the context otherwise requires:
(a) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for,
and any subordinate legislation issued under, that legislation or legislative provision;
(b) the singular includes the plural and vice versa;
(c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government or other
(d) a reference to any gender includes all genders;
(e) a reference to a recital clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this Agreement;
(f) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provision) as amended, novated,
supplemented or replaced from time to time;
(g) a reference to a party is a reference to a party to this Agreement unless otherwise stated;
(h) a reference to any party to this Agreement, or any other document or arrangement, includes that party’s executors, administrators, substitutes,
successors and permitted assigns;
(i) a reference to a third party means any person who is not a party to this Agreement; and
(j) a reference to “dollars” or “$” is to an amount in Australian currency.