Software-as-a-Service Agreement

Please read this MSA and the Terms and Conditions of Use carefully before signing, clicking on “I agree” (or similar button or checkbox). By signing this MSA or otherwise accepting it by using or accessing the Veyor System, you acknowledge that you have read, understand and agree to follow and be bound by this MSA and the Terms and Conditions of Use.

1       Contract structure

(a)     The terms of engagement for the provision of the Veyor System (and any Support Services) to the Customer will be set out in an order form which must be executed by both Veyor and Customer (Order Form). Upon execution by both parties, the Order Form will incorporate this MSA (including any schedules or annexures to it) and the Terms and Conditions of Use, and take effect as a binding agreement (the Agreement).

(b)     Any Updates, New Features, tools or software which are added to the Veyor System will also be subject to the Agreement.

(c)     Each party must perform its obligations under the Order Form in accordance with this MSA, the terms of the Order Form and the Terms and Conditions of Use. The parties must comply with any special conditions set out in the Order Form (Special Conditions).

(d)     The Customer must procure that each User complies with the Terms and Conditions of Use and will be liable for any breach of the Terms and Conditions of Use by any of its Users. In the event the Customer becomes aware of any breach of the Terms and Conditions of Use by any of its Users, the Customer must promptly notify Veyor of such breach and all facts known to the Customer regarding the same.

(e)     In the event of any inconsistency between this MSA, the Order Form and the Terms and Conditions of Use, the provisions will prevail in the following decreasing order:

   (i)     The Company Wide Agreement

   (ii)    the Special Conditions (if any);

   (iii)   the remaining provisions of the Order Form;

   (iv)    this MSA; and

   (v)     the Terms and Conditions of Use.

(f)     The Customer acknowledges and agrees that the Agreement will prevail over any separate terms provided by the Customer. Any conditions that the Customer submits, proposes, provides or stipulates in whatever form and at whatever time, whether in writing, by email, or orally, are expressly waived and excluded by the Customer.

2       Term of MSA

(a)     This MSA commences on the Effective Date and continues for a period of 12 months (Initial Term), unless terminated earlier in accordance with this Agreement.

(b)     On expiry of the Initial Term, this MSA will automatically renew for further terms each of one (1) year (each a Further Term), on the same terms and conditions as in force at the expiry of the Initial Term or Further Term (as applicable), unless otherwise:

   (i)     agreed in writing at least thirty (30) days prior to the end of the Initial Term or any Further Term; or

   (ii)    terminated by either party in writing at least thirty (30) days prior to the end of the Initial Term or any Further Term; or

   (iii)   terminated in accordance with clause 17 of this MSA.

3       Term of the Order Form

(a)     Each Order Form will commence on the Order Form Effective Date and continues for the period defined in the Order Form or otherwise agreed in writing for the relevant Users (Initial Order Form Term).

(b)     On expiry of the Initial Order Form Term, the Order Form will automatically renew for further terms, as defined in the Order Form or as otherwise agreed in writing for the relevant Customer (each a Further Order Form Term) on the same terms and conditions as in force at the expiry of the Initial Order Form Term or Further Order Form Term (as applicable), unless otherwise:

   (i)     agreed in writing at least thirty (30) days prior to the end of the Initial Order Form Term or any Further Order Form Term; or

   (ii)    terminated in accordance with clause 17 of this MSA.

(c)     The expiry or termination of this Agreement does not affect the term of any relevant Order Form(s) that have been validly entered into prior to the expiry or termination of this Agreement. Any relevant Order Form(s) that remain on foot when this Agreement expires or is otherwise terminated may be terminated on the terms contained in that relevant Order Form, and the terms of this Agreement will continue to govern any relevant Order Form until it expires or terminates.

4       Grant of Licence to Veyor System and Restrictions

(a)     Subject to the Terms and Conditions of Use and the terms and conditions of this MSA and an applicable Order Form, including the Customer's payment of all relevant Fees and amounts under the Agreement, Veyor grants to the Customer a non-exclusive, limited, non-sublicensable, non-transferable, licence, on a per Order Form basis, to access and use the Veyor System during the relevant Order Form Term.

(b)     The Customer is responsible for maintaining control over access to (including a User's right to access) the Veyor System for all relevant Customer Site(s), and for any User input onto the Veyor System. The Customer must keep accurate, up-to-date records of each User who accesses the Veyor System through the Customer's account.

5       Support Services

Veyor shall provide the Support Services as set out in Schedule 2 to this Agreement.

6       Intellectual Property

6.1     Ownership

(a)     The Customer acknowledges that Veyor owns or licenses:

   (i)     all Intellectual Property Rights in the Veyor System; and

   (ii)    any Developed Intellectual Property,

and that this Agreement does not transfer ownership of any such right, title or interest (including Intellectual Property Rights) of Veyor or any third party.

(b)     To the extent that Customer acquires ownership of any Intellectual Property Rights in the Developed Intellectual Property:

   (i)     Customer assigns, and shall procure that its Personnel assign, such Intellectual Property Rights to Veyor;

   (ii)    Customer must, upon request by Veyor, execute (and procure that its Personnel execute) any assignment or other document reasonably required to evidence or perfect Veyor's ownership of such Intellectual Property Rights; and

   (iii)   Customer must provide all reasonable assistance requested by Veyor to protect, defend and assert Veyor's interests in such Intellectual Property Rights.

(c)     The Customer must notify Veyor immediately if it becomes aware of any:

   (i)     unauthorised access to or use of the Veyor System; or

   (ii)    other breach of any of Veyor's Intellectual Property Rights.

(d)     Veyor indemnifies the Customer against any liability (including liability for reasonable legal costs) under an injunction or final judgment against the Customer, based on a claim that its use of the Veyor System in accordance with this Agreement is an infringement of the Intellectual Property Rights of any third person (Claim), except to the extent any such infringement is caused by an act or omission of the Customer, and only if:

   (i)     the Customer notifies Veyor immediately after it becomes aware of the Claim or has reasonable expectation of a forthcoming or potential Claim;

   (ii)    Veyor has sole control over defence of the Claim (even in the Customer’s name) and any negotiations to settle the Claim;

   (iii)   the Customer allows its name to be used in any proceedings arising out of the Claim; and

   (iv)    the Customer provides Veyor all other assistance reasonably requested (and paid for) by Veyor to defend or settle the Claim.

(e)     If a Claim is made, Veyor may:

   (i)     procure for the Customer the right to continue using the Veyor System free of the Claim;

   (ii)    replace or modify the Veyor System to remove any infringing (or allegedly infringing) component; or

   (iii)   immediately terminate this Agreement in whole or in part (including an applicable Order Form) and the Customer must immediately cease using the Veyor System.

(f)     Veyor acknowledges that the Customer owns or licenses all Intellectual Property Rights in the Customer Content and that this Agreement does not transfer ownership of any Intellectual Property Rights of the Customer or any third party.

(g)     From time to time, the Customer and its Personnel may input information or data into the Veyor System which includes brands, trademarks, designs, logos or names of a third party (Third Party Marks). The Customer acknowledges and agrees that Veyor has no association, affiliation or relationship with, and does not endorse, any Third Party Marks input into the Veyor System by any Customer or its Personnel.

6.2     Licence to Customer Content and ownership of Derivative Materials

(a)     The Customer grants Veyor a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, aggregate, commercialise and exploit, and create Derivative Materials from, the Customer Content to the extent necessary to undertake the activities specified in clause 6.2(b), to provide the Veyor System and to otherwise carry out its obligations under this Agreement.

(b)     The Customer acknowledges that Veyor may, in the course of undertaking its normal business operations, aggregate and store Customer Content and other data (including Confidential Information about the Customer, Related Bodies Corporate of the Customer or any project, information or User of the Customer) and use such Customer Content or data, on a de-identified basis, for the purposes of:

(i)     providing industry average data to its clients (including the Customer);

(ii)    improving the delivery of the Veyor System (including by producing Updates or New Features to the Veyor System);

(iii)   detecting and addressing threats to the functionality, security, integrity and availability of the Veyor System; and

(iv)    detecting and addressing breaches of the Agreement or any of Veyor’s other policies and for the purposes of resolving any service requests.

(c)     Veyor will ensure that any resulting datasets produced in accordance with clause 6.2(b) that are used for third party purposes do not generate any identifiable information of the Customer, any Related Body Corporate of the Customer or any project, information or User related to the Customer.

(d)     The Customer will ensure that any existing or future Intellectual Property Rights in any Derivative Materials (excluding the Customer Content) vest in Veyor absolutely. The Customer agrees to assign, and procure the assignment of, such Intellectual Property Rights in any Derivative Materials to Veyor immediately on their creation.

(e)     Without limiting the foregoing, the Customer agrees and acknowledges that Veyor may disclose the Derivative Materials, on a de-identified basis, to any third party in its sole discretion.

7       Fees, Payment and Invoice

In consideration for the rights granted under this Agreement, the Customer must pay Veyor the Fees, as set out in an applicable Order Form, on receipt of any invoice provided to the Customer in accordance with the payment terms set out in Schedule 1 of this Agreement and the relevant Order Form.

8       GST

(a)     If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply. Any amount of GST is payable at the same time as the payment for the Taxable Supply to which it relates.

(b)     Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.

(c)     If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.

(d)     In providing an invoice in accordance with an applicable Order Form and Schedule 1, a party shall provide proper tax invoices if GST is applicable to the Fees.

(e)     Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in this Agreement.

9       Confidential Information

Each party:

(a)     may use Confidential Information of the other party solely for the purposes of exercising its rights and performing its obligations under this Agreement and otherwise for the purposes of this Agreement;

(b)     except as permitted under subclause (c), must keep confidential all Confidential Information of the other party; and

(c)     may disclose Confidential Information of the other party only:

(i)     to employees and subcontractors who:

   A.      are aware and agree that the Confidential Information of the other party must be kept confidential; and

   B.      either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party;

(ii)    to persons other than those referred to in clause 9(c)(i) who have entered into a confidentiality agreement on substantially similar terms to the confidentiality requirements specified in this clause 9;

(iii)   with the prior written consent of the other party; or

(iv)    as required by law, stock exchange regulation or professional and industry standards organisations;

(d)     will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information; and

(e)     must notify the other party as soon as reasonably practicable after becoming aware of any disclosure of the other party’s Confidential Information, whether accidental, suspected, or intentional.

(f)     Even though information is the Confidential Information of a party, the other party is not obliged to comply with this clause 9 in relation to that Confidential Information if:

(i)     the Confidential Information becomes public knowledge during this Agreement;

(ii)    the other party becomes aware of that Confidential Information from a third person; or

(iii)   where it remains known to an employee of the other party after that employee has ceased to be involved in the performance of this Agreement, and has become part of the general skill and knowledge of that employee;

(iv)    in circumstances where there was no breach of any obligation of confidence and all parties have a reasonable right to know.

10      Privacy

(a)     Each party must, both during and after the Term:

   (i)     comply with the Privacy Act (in the case of the Customer, as though it were subject to the Privacy Act) and any additional Privacy Law by which the relevant party is bound;

   (ii)    take all reasonable steps to ensure that the other party's Personal Information is protected against misuse and loss, or unauthorised use, access or disclosure, including by not disclosing any Personal Information to a third party (other than as expressly permitted by this MSA);

   (iii)   not do anything which may cause the other party to breach any Privacy Law; and

   (iv)    if requested by the other party, co-operate with them to resolve any complaint or investigation under any Privacy Law, and provide other reasonable assistance for Veyor to comply with any applicable Privacy Law.

(b)     The Customer:

   (i)     must comply with Veyor's privacy policy;

   (ii)    acknowledges that Veyor may provide the services under this Agreement, namely access to the Veyor System, any services offered on the Veyor Website, updates and support services, and any other services offered in this Agreement, from any locations, and/or through the use of contractors, worldwide; and

   (iii)   agrees to provide any information, obtain any consents and provide all required notices, relevant to its use of the Veyor System, including those in relation to collection, use, disclosure and storage of Personal Information of any individual whose Personal Information may be included in the Customer Content as required under applicable Laws.

11      Warranties

(a)     The Customer warrants that:

   (i)     it 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;

   (ii)    it will act in good faith towards Veyor and any of Veyor's authorised representatives and provide such assistance and co-operation as is practicable on request by Veyor; and

   (iii)   it will comply at all times with applicable laws and regulations, and all reasonable directions Veyor gives.

(b)     The Customer will be solely responsible for any representations, warranties or guarantees made or published concerning the Veyor System by the Customer to the extent that such representations, warranties or guarantees are inconsistent with any warranties in this Agreement.

(c)     Veyor warrants that:

   (i)     it has the authority to enter into and perform its obligations under this Agreement and that this Agreement is a legal, valid and binding Agreement;

   (ii)    it has all rights necessary to grant access to the Veyor System;

   (iii)   it will comply at all times with applicable Laws; and

   (iv)    it will not do anything or make any statement that could be reasonably expected to harm the reputation of the Customer.

12      Third Party Content

(a)     The Customer acknowledges that the Veyor System may incorporate Third Party Content including open source software and that Veyor 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), Veyor does not give any representation or warranty as to the reliability, accuracy or completeness of any Third Party Content, including open source software, and Veyor will have no responsibility or liability to the Customer or any other person arising from or in connection with any error, defect or inaccuracy in any Third Party Content or any Customer Content.

13      Upgrades and New Features

(a)     From time to time Veyor may introduce Updates or New Features to the Veyor System or any part of the Veyor System.

(b)     In the event that Veyor introduces such Updates or New Features to the Veyor System that are determined by Veyor, acting reasonably, as being relevant to the Customer and applicable Customer Site(s), Veyor shall make such Upgrades or New Features available to the Customer.

(c)     If the Updates and New Features are determined by Veyor, acting reasonably, to be not applicable to the Veyor System as licensed to the Customer, Veyor will provide reasonable notice to the Customer of the details of the Updates or New Features and associated costs. The Customer is entitled to refuse any Update or New Feature, however, Veyor will not be liable for any difference in functionality of the Veyor System resulting from the Customer's non-acceptance of any Update or New Feature.

(d)     Veyor will provide the Customer with reasonable prior notice before making any material changes to the Veyor System unless security, legal, system performance considerations or obligations require an expedited modification or removal.

(e)     Any Updates or New Features introduced to the Veyor System, whether introduced or added by Veyor independently or at the request of the Customer:

   (i)     are not created or introduced exclusively for the Customer;

   (ii)    may be the subject of additional fees, subject to approval from the customer to accept the Updates and New features and associated additional fees, as notified by Veyor to the Customer; and

   (iii)   will also be subject to the terms and conditions of this Agreement.

14      Disclaimer

(a)     Without limiting the obligations of Veyor as set out in Schedule 2 and to the extent permitted by Law (including the Australian Consumer Law if applicable), neither Veyor nor any of its third party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness, or any content contained in or generated by, the Veyor System, or that:

   (i)     the use of the Veyor System will be secure, timely, uninterrupted or error-free;

   (ii)    the Veyor System will operate in combination with any other hardware, software, system, or Customer Content;

   (iii)   the Veyor System (or any products, services, information, or other material purchased or obtained by the Customer through the Veyor System) will meet the Customer's requirements or expectations;

   (iv)    any stored Customer Content will be accurate or reliable or that any stored Customer Content will not be lost or corrupted;

   (v)     errors or defects will be corrected; or

   (vi)    the Veyor System (or any server(s) that make a hosted service available) are free of viruses or other harmful components.

(b)     Without limiting clause 14(a), the Customer acknowledges and agrees the Veyor System is offered for logistical, communication and planning purposes only. The Veyor System relies on the Customer Content provided to the Veyor System and the manner in which the Customer uses the Veyor System. It is not a substitute for the Customer's own work, health and safety compliance procedures and Veyor has no responsibility for ensuring the Customer's own compliance with any applicable Laws. All Users must exercise reasonable care and judgement in any use of and interaction with the Veyor System. In no circumstance will Veyor have any liability for any physical loss or damage to persons or property which may arise in connection with or in relation to such use of or interaction with the Veyor System by the Customer, its Personnel or its Users.

(c)     The Veyor System and all other products are provided "as is" and to the extent permitted by Law (including the Australian Consumer Law if applicable), Veyor disclaims any and all warranties and representations of any kind, including any warranty or non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory.

(d)     Veyor shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Veyor.

15      Indemnities

(a)     Without limiting any other indemnities given by the Customer under this Agreement, the Customer shall defend, hold harmless and indemnify and must keep indemnified Veyor and its Related Bodies Corporate and Personnel (the Veyor Indemnified Parties) from and against any Loss suffered or incurred by the Veyor Indemnified Parties arising out of or in connection with:

   (i)     any breach by the Customer of clause 4 (Grant of Licence), 9 (Confidential Information) or 10 (Privacy);

   (ii)    any Customer Content (including Personal Information) used or disclosed by Customer, including any Claim by any person that the Customer Content infringes any Intellectual Property Right or other right of any third party;

   (iii)   the use of the Veyor System by the Customer or its Personnel; or

   (iv)    any loss or damage to property arising out of or otherwise in connection with any wrongful act or omission of the Customer.

(b)     The parties acknowledge and agree that Veyor has been irrevocably appointed to act as the sole and exclusive agent of the Veyor Indemnified Parties for the purposes of recovering (whether through court proceedings or otherwise) the Losses of the Veyor Indemnified Parties and enforcing the indemnities.

16      Limitations of liability

(a)     To the extent permitted by Law, (including the Australian Consumer Law if applicable), and subject to 16(d), in no event will the aggregate liability of Veyor for any Loss, direct or otherwise, exceed an amount equivalent to the Fees paid by the Customer in respect of a relevant Order Form in the Order Form Contract Year in which the event giving rise to the liability occurred, regardless of the cause or form of action. For the avoidance of doubt, the limitation of liability under this clause 16(a) is cumulative and not per incident or Claim and is only linked to the Customer Site where the event giving rise to the relevant Loss occurred.

(b)     To the extent permitted by Law, (including the Australian Consumer Law if applicable), under no circumstances will either party be liable for any Consequential Loss.

(c)     The limitations and exclusions in this clause 16 shall apply whether the action, claim or demand arises from breach of contract, tort (including negligence) or under any other theory of liability.

(d)     Clause 16(a) does not apply to, and shall not limit, any party's liability:

   (i)     (subject to clause 14(b)) for death or personal injury caused by that party or its Personnel;

   (ii)    for fraud (including fraudulent misrepresentation); or

   (iii)   under any indemnity given in this Agreement.

17      Termination

(a)     The Customer may:

   (i)     terminate this Agreement (but not, for the avoidance of doubt, an applicable Order Form) for any reason by giving thirty (30) days written notice to Veyor; or

   (ii)    immediately terminate this Agreement (or, for the avoidance of doubt, an applicable Order Form) or suspend performance of its obligations under this Agreement on written notice to Veyor if Veyor commits a material breach of this Agreement, and, where such breach is capable of remedy, Veyor does not rectify such breach promptly on receipt of written notification from the Customer.

(b)     Veyor may immediately terminate this Agreement (or, for the avoidance of doubt, an applicable Order Form) or suspend performance of its obligations under this Agreement (for such period as Veyor specifies) on written notice to the Customer if:

   (i)     subject to an invoice that has been disputed under clause 21, the Customer fails to pay any amount due under this Agreement, and does not pay within the timeframes outlined in an applicable Order Form and Schedule 1; or

   (ii)    the Customer breaches any other provision of this Agreement (including the Terms and Conditions of Use), and, where such breach is capable of remedy, does not rectify such breach promptly on receipt of written notification from Veyor;

   (iii)   the Customer attempts to assign, or assigns, any right under this Agreement otherwise than in accordance with this Agreement;

   (iv)    the Customer (including its Personnel or Users) uses the Veyor System in a manner which harms the interests of Veyor or other customers of the Veyor System;

   (v)     the Customer (including its Personnel or Users) uses the Veyor System in a manner which is, in the reasonable opinion of Veyor, fraudulent or malicious; or

   (vi)    the Customer undergoes a change in control of more than half the issued voting shares in the Customer, and Veyor considers on reasonable grounds that such a change in control will be detrimental to Veyor's interests.

(c)     On expiration or termination of this Agreement (or an applicable Order Form) for any reason, the rights granted to the Customer or the Customer in respect of the relevant services to be provided under an Order Form (as applicable) terminate and the Customer must immediately:

   (i)     in the case of termination of this Agreement, stop using the Veyor System, and ensure that all of the Customer's Users stop using the Veyor System, other than to the extent applicable to any Order Form(s) which remains effective at the date of termination of this Agreement until the date of termination or expiry of any such Order Form(s);

   (ii)    in the case of termination of an Order Form, stop using the Veyor System to the extent applicable to that Order Form, and ensure that all of the Customer's Users stop using the Veyor System to the extent applicable to that Order Form; and

   (iii)   return to Veyor all copies of any of Veyor's Confidential Information in the Customer's possession or control.

(d)     Termination of this Agreement (or, for the avoidance of doubt, an applicable Order Form):

   (i)     by Veyor pursuant to clause 17(b) shall not relieve the Customer of any financial obligations (including in respect of payment of any Fees) to Veyor for the duration of the outstanding term of the Agreement and each applicable Order Form as at the date of termination by Veyor;

   (ii)    by the Customer pursuant to clause 2(b)(ii) or clause 17(a)(i) shall not relieve the Customer of any financial obligations (including in respect of payment of any Fees) to Veyor for the duration of the outstanding term of the Agreement and each applicable Order Form as at the date of termination by the Customer;

   (iii)   by the Customer pursuant to clause 17(a)(ii) shall relieve the Customer of any further financial or other obligations (including in respect of payment of any Fees) to Veyor for the duration of the outstanding term of the Agreement and each applicable Order Form as at the date of termination by Veyor; or

   (iv)    for any reason shall not relieve the parties of any accrued liability (including with respect to outstanding or accrued Fees).

(e)     The Customer agrees and acknowledges that Veyor has no obligation to retain any information relating to the Customer (including Customer Content) and that all such information may be irretrievably deleted by Veyor after thirty (30) days from the date of any suspension, termination or expiry of this Agreement.

18      Publicity

(a)     Subject to clause 18(b), the Customer acknowledges and agrees the parties will not make any public announcement in relation to this Agreement without the prior written approval of the other party.

(b)     The Customer acknowledges and agrees that Veyor may:

(i)     disclose to third parties the fact that the Customer has entered into this Agreement with Veyor, including by way of the use of the Customer's company logo; and

(ii)    use de-identified information about the Customer's use of the Veyor System.

(c)     The Customer agrees that it must not disclose or make available to the public in any way, any media release or marketing materials in respect of the Veyor System, the Customer's participation with the Veyor System, or the terms of this Agreement, without the prior written approval of Veyor.

19      Survival

Without limiting any other provision of this Agreement, clauses 6 (Intellectual Property), 7 (Fees, Payment and Invoice), 8 (GST), 9 (Confidential Information), 10 (Privacy), 15 (Indemnities), 16 (Limitations of Liability) and any other clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.

20      Notices

(a)     Subject to clause (b), a party giving notice or notifying under this Agreement must do so in English and in writing:

   (i)     in the case of Veyor, addressed to Level 1, 20 Burton St, Darlinghurst NSW 2010 or, in the case of the Customer, to the person and address supplied in an Order Form or as altered by any notice; and

   (ii)    hand delivered, by email or sent by prepaid post to that address.

For the purposes of service messages and notices about the Veyor System, including notices under clause 13, notice may consist of an email from Veyor to an email address associated with the Customer's account, even if Veyor has other contact information. The Customer acknowledges and agrees that Veyor shall have no liability associated with or arising from the Customer's failure to maintain accurate contact or other information, including, but not limited to, the Customer's failure to receive critical information about the Veyor System.

(b)     A notice given in accordance with this clause is taken to be received:

   (i)     if hand delivered, on delivery;

   (ii)    if sent by prepaid post, three (3) days after the date of posting;

   (iii)   if sent by email or delivered by way of a banner notice under clause (b), at the time of sending the email or displaying the banner notice.

21      Dispute Resolution

(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 shall prevent a party from seeking urgent injunctive relief before an appropriate court.

22      General

(a)     The Customer must not sub-license, assign, or attempt to sub-license or assign, any right arising out of this Agreement, or this Agreement, without Veyor's prior written approval which may be withheld at its complete discretion. Veyor may assign or subcontract all or part of this this Agreement to any other party, subject to the Customer’s consent, not to be unreasonably withheld.

(b)     If a party is partially or wholly precluded from complying with their obligations under this Agreement by any event, matter or circumstance that is beyond their reasonable control (including a Force Majeure Event), then the party's obligation to perform will be suspended for the duration of the delay arising out of the event, matter or circumstance.

(c)     Except where expressly stated otherwise, any express statement of a right of a party under this Agreement is without prejudice to any other rights of that party expressly stated in this Agreement or existing at law.

(d)     Nothing in this Agreement gives a party any right to bind the other party in contract or otherwise at law, or hold itself out as a representative of the other party.

(e)     Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.

(f)     This MSA, any applicable Order Form and the Terms and Conditions of Use contain the entire agreement between the parties with respect to its subject matter and supersedes any oral or written prior agreement, representation or understanding relating to this Agreement.

(g)     This Agreement may be executed in multiple counterparts and by electronic means.

(h)     The Customer acknowledges that in entering into this Agreement the Customer has not relied on any representation or warranties about its subject matter except as provided in this Agreement.

(i)     No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.

(j)     If any provision of this Agreement is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.

(k)     This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction in that state.

23      Definitions and Interpretation

23.1    Definitions

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.

Business Days means a day that is not a Saturday, Sunday or public holiday in Sydney, New South Wales, Australia.

Claim has the meaning set out in clause 6.1 of this Agreement.

Confidential Information of a party means all confidential data and information (including trade secrets and confidential know how, as well as business, technical and financial information if identified as confidential) relating to that party, to its suppliers or customers, or to a Related Body Corporate, or otherwise to that party from time to time, of which the other party becomes aware, either before or after the day this Agreement is signed. Specifically, Veyor's Confidential Information includes the design, specification and content of the Veyor System including its source code, Veyor'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.

Consequential Loss means any:

(a)     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; and

(b)     any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Agreement, as the probable result of the relevant breach.

Contact List means the list of approved contacts for the Customer set out in the Order Form to be used for communication, support, and other purposes contemplated by the Agreement.

Customer Content means any and all data or other material input, entered or added to the Veyor System by or on behalf of the Customer, or at the Customer's request, including details of the Customer Site.

Customer Site means the relevant physical construction site or other site.

Derivative Materials means materials, data and insights (such as trend data based on aggregated and de-identified Customer Content) derived or created by or on behalf of Veyor in accordance with clause 6.2, which are based on, or created or derived from, the Customer Content.

Developed Intellectual Property means any Intellectual Property Rights in any Updates or New Features introduced to the Veyor System or otherwise arising from any work done by or for Veyor on behalf of the Customer in connection with the Veyor System, including the development of any portals used by Customer to access the Veyor System and any feedback (including suggestions, ideas, information, comments, process descriptions or other information) provided by Customer or its Personnel to Veyor in relation to the Veyor System and/or Veyor's other (current or future) products and services.

Effective Date means the start date of this Agreement, or if no such date is set out, the date of Veyor's first invoice to the Customer.

Fees means all amounts payable by the Customer to Veyor under this Agreement as agreed by the parties in writing and includes, without limitation, the ongoing Licence Fees, any fees for the use of any New Features, and where applicable, any fees for any additional training services provided under and applicable Order Form.

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.

GST means any goods and services tax imposed by the GST Law.

GST Exclusive Value has the same meaning as in the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 as amended or replaced from time to time, and any associated legislation and regulations to the extent they relate to GST.

Incident refers to any singular event relating any unavailability or non-performance or other failure of the Veyor System.

Intellectual Property Rights means any and all intellectual property rights including patent, copyright, trademark (registered and unregistered), designs and any other rights of a like nature subsisting or conferred by law in force in any part of the world.

Laws 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.

Licence Fee means the fee payable by the Customer to Veyor for access to and use of the Veyor System during the Term, as set out in an applicable Order Form or otherwise agreed by the parties in writing.

Loss means any claim, loss, liability, cost or expense (including legal expenses on a full indemnity basis).

Monthly Uptime Percentage means the calculation of monthly uptime availability as set out in Schedule 2.

New Features means features outside of the scope of the Veyor System as at the Effective Date released with the primary purpose of providing additional functionality or enhancement in that new version.

Order Form Contract Year means a twelve (12) month period commencing on the Order Form Effective Date or any anniversary of the Order Form Effective Date.

Order Form Effective Date means the start date as set out per each completed and signed Order Form, or if no such date is set out, the earlier of either the date that access is first granted to any personnel or representative of the Customer, or as otherwise agreed in writing between the Customer and Veyor.

Order Form Term means the Initial Order Form Term and any Further Order Form Term under clause 3.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is received by the Customer as a consequence of, or otherwise in connection with, this Agreement.

Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any sub-contractors or personnel on any Customer Site.

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.

Related Body Corporate has the meaning given to that term in section 9 of the Australian Corporations Act 2001 (Cth).

Scheduled Maintenance Window means the pre-agreed period during which Veyor is able to disrupt availability of the Veyor System and its services. The Customer's inability to access the Veyor System during these periods does not constitute Unavailability for the purposes of determining the Monthly Uptime Percentage service level.

Service Credit means the dollar credit that, where eligible, is credited back to a Customer account subject to the terms set out in Schedule 2 of this MSA.

SLA Period means any given calendar month as relevant.

Support Fees means any fees and charges associated with the support services and specified in an Order Form.

Support Services means the support set out in Schedule 2 of the Agreement.

Tax Invoice means a tax invoice as defined in the GST Law, which also specifies the GST component of the Taxable Supply.

Taxable Supply has the same meaning as in the GST Law.

Terms and Conditions of Use means the terms and conditions of use of the Veyor System located at https://www.veyordigital.com/terms.

Third Party Content means any information, data or other content that Veyor sources and/or supplies from any third party for use in connection with the Veyor System.

Third Party Marks has the meaning given to that term in clause 6.1(g) of this Agreement.

Unavailable in the context of the Monthly Uptime Percentage calculation has the definition given to it in Schedule 2 of the Agreement.

Update means any new version of the Veyor System made generally available to update and/or correct errors or bugs in the Veyor System and includes any separate maintenance patch, bug fix or update to the Veyor System.

Users means any person whom the Customer has authorised to access and use the Veyor System in accordance with clause 4 of this Agreement. Users may include but are not limited to any Personnel, or other person under the Customer's direct or indirect control and includes any sub-contractors.

Veyor System means all software, functionality, services and capability associated with the Veyor system that is developed, operated and/or maintained by Veyor and made available to the Customer in accordance with this Agreement.

Veyor Website means any website owned or operated by Veyor which may be linked to or therefrom.

23.2    Interpretation

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)     the gender includes all genders;

(c)     where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(d)     a reference to a person includes any body corporate, unincorporated body or other entity and conversely;

(e)     a reference to a clause is to a clause of this Agreement;

(f)     a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;

(g)     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;

(h)     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;

(i)     a reference to conduct includes, any omissions, statement or undertaking, whether or not in writing;

(j)     a reference to includes, means includes without limitation; and

(k)     all references to $ are to Australian dollars, unless otherwise specified.

Schedule 1 – Payment and Invoicing

1       Payment Process - Bank Transfer

(a)     Unless otherwise agreed by the parties, Veyor will invoice the Fee in advance for the Initial Order Form Term as defined in the Order Form.

(b)     The Customer must pay each invoice on the date nominated on the invoice, or if there is no such date strictly within thirty (30) days of the end of the month of receipt of the invoice, by way of electronic funds transfer, or any other method otherwise agreed in writing, into Veyor’s nominated bank account, without deduction or set-off.

(c)     Any portion of the invoice not paid on or before the date that it is due, and that is not disputed in accordance with clause 21, shall accrue interest from the day on which payment was due to the date the Customer makes payment in full at the annual rate of 4% per annum above the Reserve Bank of Australia’s base rate.

(d)     From time to time disbursements and other costs and charges may be incurred by Veyor on the Customer’s behalf, including but not limited to travel and accommodation, printing or seminar or meeting room costs. In all cases any such expenses will be agreed with the Customer in writing prior to being incurred and shall be charged to the Customer at cost by invoice.

2       Payment Process – Credit card/ Direct Debit

(e)     Unless otherwise agreed by the parties, Veyor will charge the Fee for the Initial Customer Site Term as defined in the Order Form. For any Customer that registers for use of the Veyor system, Veyor will charge the Customer on accepting the Order Form.

(f)     The Customer must pay each follow on fee in advance by way of the online payment method nominated in the setup process. It is the responsibility of the Customer to ensure that the method of payment is valid and up to date on the date that the payment is due. Where the fee due is unable to be calculated based on the actual amount, a reasonable estimate or otherwise the amount for the previous month will be used until an adjustment can be applied on the next payment date the following month.

(g)     Any portion of the invoice not paid on or before the date that it is due, and that is not disputed in accordance with clause 21, shall accrue interest from the day on which payment was due to the date the Customer makes payment in full at the annual rate of 4% per annum above the Reserve Bank of Australia’s base rate.

(h)     From time to time disbursements and other costs and charges may be incurred by Veyor on the Customer’s behalf, including but not limited to travel and accommodation, printing or seminar or meeting room costs. In all cases any such expenses will be agreed with the Customer in writing prior to being incurred and shall be charged to the Customer at cost by invoice.

Schedule 2 – Support Services

1       Service Description

Veyor Support Services are a dedicated team of professionals that support the Veyor Software as a Service so that our customers are able to unlock the full potential of the solution.

1.1     Inclusions

The Veyor Support Service will include:

       (a)     Provision of an Incident logging service through telephone and email to assist with Support queries as it relates to the Veyor platform;

       (b)     Commercially reasonable efforts to make the Veyor System available as defined below; and

       (c)     After any failure/interruption, the solution must be able to recover to the previous known good state before the failure.

1.2     Exclusions

Exclusions from the Veyor Support Service include, but are not limited to:

       (a)     Telecommunication services;

       (b)     Connectivity issues;

       (c)     Device support, such as that specific to the Desktop or Mobile but not derived from the Veyor System;

       (d)     Third party application support, such as that specific to the application but not derived from the Veyor System;

       (e)     Issues resulting from misconfiguration by the Customer or associated personnel;

       (f)     Failures in maintenance or administration by the Customer or associated personnel;

       (g)     Incidents arising from the Customer or associated personnel’s lack of training;

       (h)     Data restoration, alteration, or deletion caused by any unauthorised changes; or

       (i)     End user support or technical advice to any persons not listed as a Named Contact.

       (j)     Extracting of data from the Veyor system

2       Logging a Support Request

2.1     Contact details

The following table provides contact details for logging a Support Request with us:

2.2     Incident log

When logging a new Incident, the following details will be required:

       (a)     Your company name;

       (b)     Contact name and number;

       (c)     Affected user(s) name(s) and number(s) if different to the contact;

       (d)     Project site(s) and address(es);

       (e)     Details of symptom(s) experienced;

       (f)     Details of any recent change(s); and

       (g)     Impact(s) to the business.

All new Incidents will undergo an initial impact assessment to determine the priority level. Veyor will seek to determine the number of users and/or systems affected and establish the commercial impact to your environment prior to being triaged to resolution.

3       Customer Responsibilities

3.1     Contact details

The Customer must have an established and agreed contact list that logs support requests with Veyor whereby:

       (a)     It is the Customer’s responsibility to maintain the accuracy and currency of the contact list; and

       (b)     The Customer acknowledges and agrees that Veyor shall have no liability associated with or arising from the Customer's failure to maintain accurate contact or other information, including, but not limited to, the Customer's failure to receive support for the Veyor System as a result of requests received from unapproved contacts.

The required information for the approved requestors are:‍

3.2     Initial impact assessment

The Customer is required to undertake an initial impact assessment prior to logging an Incident and this should include:

       (a)     Affected services;

       (b)     Business impact;

       (c)     Number and type of users affected;

       (d)     Recent changes on the affected infrastructure (regardless of the perceived impact); and

       (e)     Any other Incident details that may be considered relevant for notation.

When requested, the Customer is required to make available sufficient appropriately skilled personnel while an Incident is being managed.

4       Service availability

4.1     Scheduled maintenance

In order to continue to develop and release new features, Veyor Support Services have a scheduled maintenance window where works will be carried out that may or may not impact the platform services and availability.

Scheduled maintenance that will impact the Service will aim to be carried out:

       (a)     Within the Scheduled Maintenance times in the Scheduled Maintenance Window as follows:

           (i)     On the 1^st and 3^rd Saturday in each month from 3pm to 11pm;

       (b)     During other times as agreed with the Customer; or

       (c)     Where it is needed to implement an Emergency Change.

We will provide 48 hours advance notice should services not be available during our Scheduled Maintenance Window, and as soon as reasonably practical should services not be available during any other times.

4.2     Monthly uptime percentage service levels

Veyor will use commercially reasonable efforts to make the Veyor System available with a Monthly Uptime Percentage service level subject to the below:

       (a)     Unavailable means:

           (i)     All connection requests to the running Veyor System instance fail during a 1 minute period.

       (b)     Unavailable does not include:

           (i)     Scheduled or planned maintenance where the Customer has received written notification from Veyor before the applicable scheduled or planned maintenance;

           (ii)    Scheduled or planned maintenance where the Customer has failed to received written notification sent by Veyor before the applicable scheduled or planned maintenance due to a failure by the Customer to maintain accurate contact or other information with Veyor; and

           (iii)   One or more circumstances outside of Veyor’s control such as those listed in Schedule 2, clause 1.

       (c)     The Monthly Uptime Percentage service level is at least 99.90% during any monthly billing cycle whereby:

           (i)     The “Monthly Uptime Percentage” for a given Veyor System instance is calculated by subtracting from 100.00% the percentage of total one (1) minute periods during the monthly billing cycle in which the Veyor System instance was “Unavailable”; and

           (ii)    In any month where the Veyor System instance has been running for less than the full month, for the portion of the month that it was not running, the availability of the Veyor System is assumed to be 100.00% available; and

           (iii)   The “Monthly Uptime Percentage” calculations exclude periods in “Scheduled Maintenance Windows” as pre-agreed between the parties.

       (d)     A “Monthly Uptime Percentage” service level below 99.90% may result in eligibility for a “Service Credit” per Schedule 2, clause 4.3.

4.3     Eligibility for receipt of a “Service Credit”

A “Service Credit” is a dollar credit that, where eligible, is credited back to a Customer account subject to the below:

       (a)     Calculation of the “Service Credit” is determined by:

           (i)     The Monthly Uptime Percentage service level as set out in the below table where the “SLA Period” refers to the relevant calendar month; or

           (ii)    At the sole discretion of Veyor,

           (A)     for any unavailability or non-performance or other failure of the Veyor System not accounted for in the calculation of the Monthly Uptime Percentage; and

           (B)     where deemed commercially significant or otherwise appropriate by Veyor;

           (C)     any other credit amount determined by Veyor.

       (b)     Where eligible for a Service Credit, the conditions of the credit balance are as follows:

           (i)     The calculated amount will only be applied against future Veyor payments otherwise due from the Customer and will not entitle the Customer to any refund or other payment from Veyor;

           (ii)    The Service Credit will only be claimed if the credit amount for the applicable monthly billing cycle is greater than one dollar (AUD 1);

           (iii)   The Service Credit will not be transferrable to or applicable for any other account; and

           (iv)    The determination to provide a Service Credit remains solely at the discretion of Veyor.

       (c)     Unless otherwise provided for in the Agreement or agreed with Veyor in writing, the Service Credit, if eligible in accordance with the terms of this Schedule, is the sole and exclusive remedy for any unavailability or non-performance or other failure by Veyor to provide the Veyor System.

       (d)     The aggregate maximum amount of Service Credits the Customer is eligible to receive in relation to any unavailability or non-performance or other failure in any given SLA Period is capped at 15% of the total charges paid or payable by the Customer in connection with the relevant Covered Service for that applicable SLA Period.

       (e)     In order to receive any applicable Service Credits, the Customer must notify Veyor within 30 days of the end of the SLA Period for which the Customer believes it may be eligible to receive Service Credits.