INGENIOUS AI MASTER SERVICES AGREEMENT
inGenious AI Pty Ltd ABN 63 617 284 492 (inGenious AI) provides artificial intelligence consultancy and custom chat-bot development services. This Master Services Agreement governs all consultancy and development services provided by inGenious AI to the client.
1.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) Agreement means this Master Services Agreement.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, VIC, Australia.
(d) Change Request means a written notice from the Client requesting a change of the scope of a SoW, or any additional work not specified in a SoW or otherwise previously agreed to be provided by inGenious AI.
(e) Client means the client as identified on any SoW.
(f) Commencement Date means the earlier of:
i The date stated as the Commencement Date in an SoW; or
ii The date when inGenious AI first provides Services for the Client.
(g) Confidential Information means any written or verbal information that:
i Is about each party’s business or affairs;
ii Is about the conduct of each party under this Agreement and the during the term of this Agreement;
iii A party informs the other party that it considers it confidential and/or proprietary;
iv A party would reasonably consider to be confidential in the circumstances; and
v Is personal information within the meaning of the Privacy Act 1988 (cth). but does not include information that a party can establish:
vi Was in the public domain at the time it was given to that party;
vii Became part of the public domain, without that party’s involvement in any way, after being given to the party;
viii Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
xi Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(h) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure and includes each of the following:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, pandemic, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(i) inGenious AI means inGenious AI Pty Ltd ABN 63 617 284 492.
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(k) Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(l) GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(m) Party means inGenious AI and each Client.
(n) Project means the Services provided by inGenious AI pursuant to a SoW.
(o) Proprietary Technology means the Intellectual Property Rights the company holds in the underlying code, artificial intelligence or other software product that inGenious AImay make available to the Client as part of the Services, that forms part of the inGenious AI Background IP, but does not include the SaaS Platform.
(p) SaaS Platform means any proprietary software-as-a-service chatbot or artificial intelligence platform owned and operated by inGenious AI.
(q) SoW means a scope, quote, proposal or statement of work that describes the Project, as agreed to by the Parties.
(r) Services means any services provided by inGenious AI to a Client.
(s) Special Conditions means the provisions set out in, attached to or made by reference to this Agreement entitled “Special Conditions”.
(t) Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2 Agreement and Commencement
2.1 The relationship between the parties shall be governed by the terms of this Agreement until terminated under the provisions of this Agreement.
2.2 This Agreement commences on the Commencement Date or otherwise agreed between the Parties in writing and shall continue to operate until terminated under the provisions of this Agreement.
3.1 inGenious AI shall provide the following services (Services) to the Client:
(a) Software development and support services as agreed in writing by the Parties in a SoW,;
(b) Technology Licensing Services; and
(c) Such other services as may be agreed between the parties from time-to-time.
4 Technology Licensing
4.1 Proprietary Technology
Where inGenious AI provides the Client with inGenious AI’s Proprietary Technology as part of any Services or Project, and that Proprietary Technology is required to be used by the Client in the products or services it offers to its customer, unless agreed otherwise in writing, inGenious AI agrees to:
(a) Grant the Client a perpetual, royalty-free, worldwide, non-assignable, non sub licensable licence to use that Proprietary Technology within the products or services offered to the Client’s customers.
4.2 SaaS Platform
(a) Where inGenious AI provides the Client with access to the SaaS Platform as part of the Services, in order to obtain a licence the Client must agree to, and accept any terms of service that apply to the use of the SaaS Platform in addition to this Agreement.
(b) The Client acknowledges that where the client does not accept or otherwise breaches the SaaS Platform’s terms of service, inGenious AI may refuse to provide any Services to the Client.
5.1 inGenious AI warrants that it is an independent service provider to the Client.
5.2 inGenious AI will not:
(a) hold itself out as an agent of the Client; or
(b) incur obligations or liabilities on behalf of the Client unless the Client provides written permission.
6 inGenious AI’s Key Obligations
6.1 inGenious AI will:
(a) ensure that the Services are complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties;
(b) ensure that the Services are provided in accordance with the standards outlined in this Agreement;
(c) establish and maintain clear channels of communication at all times with the Client, and promptly answer any reasonable questions asked by the Client;
(d) comply with all the relevant laws and industry standards in respect of providing the Services; and
(e) act in accordance with the Client’s reasonable directions while providing the Services.
7 Clients Key Obligations
7.1 The Client will:
(a) ensure that inGenious AI has access to all the:
i resources, personnel, electronic systems and premises required to provide the Services; and
ii all facilities and materials and information reasonably requested for inGenious AI to do its job;
(b) establish and maintain clear channels of communication at all times with inGenious AI;
(c) ensure that any premises where inGenious AI, its employees or contractors are required to attend in order to provide the Services, is safe, sanitary and otherwise complies with any relevant occupation health and safety laws;
(d) promptly provide inGenious AI with directions, instructions or information which are requested by inGenious AI and which are reasonably required to assist inGenious AI in the performance of its obligations under this document; and
(e) promptly provide inGenious AI with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services.
8 Fees, Invoicing & Payment
8.1 The Client shall pay inGenious AI the fees agreed by the parties in writing for any Services and/or Projects.
8.2 Any variations to fees and/or Services must be made in writing and agreed by the parties.
8.3 If inGenious AI does not provide a valid Tax Invoice (or does not supply the Client with its ABN) the Client may withhold from any payment made to inGenious AI the amounts required for the Client to comply with the Taxation Administration Act 1953 (Cth) and related legislation.
8.4 inGenious AI must render a valid Tax Invoice to the Client for any paid Services provided.
8.5 The Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 30 days from the invoice.
8.6 All payments by the Client or other consideration for any supply by inGenious AI to the Client under or in connection with this document include any GST for which inGenious AI is liable on that supply, and inGenious AI (and not the Client) is responsible for payment of that GST.
8.7 The Client will not be entitled to set off any amount owed to inGenious AI against any amount payable by inGenious AI to the Client.
8.8 If the Client fails to pay an amount due under this Agreement by a due date, inGenious AI may charge interest on the overdue amount (as liquidated damages) at the rate of two percent (2%) above the rate of interest fixed from time to time under Section 2 of the Penalty Interest Rates Act 1983. The Client will also be liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by us for enforcement of obligations and recovery of monies due from the Client to ingenious AI
8.9 Should the Client dispute any charge on a Tax Invoice, the Client must notify inGenious AI of the disputed item within 5 days of the date of the Tax Invoice.
8.10 The Client must pay the amount of the Tax Invoice not in dispute within the stated timeframe.
8.11 Failure by the Client to notify inGenious AI of a disputed Tax Invoice within 5 days shall be deemed acceptance by the Client of the entire Tax Invoice.
9 Change Requests
9.1 No Change Request from the Client is valid until accepted in writing by inGenious AI.
9.2 Unless agreed otherwise in writing, inGenious AI’s usual rates (as specified in the SoW or otherwise provided to the Client) shall apply in respect of any Change Request undertaken by inGenious AI.
10 Acceptance Testing
10.1 If subject to acceptance testing is specified in the SoW, the Client may assess the Services to determine if the Services provided by inGenious AI meet the specification outlined in the SoW or to determine if they contain any defects.
10.2 The Client may, within three (3) working days after provision of Services by inGenious AI, notify any defects or problems with the Services by providing inGenious AI with written notice giving inGenious AI a reasonable amount of time to rectify the alleged issued (which in default shall not be less than 10 business days). inGenious AI shall rectify any bona fide defects specified in the written notice in a prompt and professional manner.
10.3 If the Client does not give written notice to inGenious AI within seven (7) business days after inGenious AI provides the Services notifying that the Services did not meet the specification outlined in the SoW, the Services is deemed to be accepted by the Client.
11 Intellectual Property
11.1 Background IP of inGenious AI.
(a) For the purposes of this clause, Background IP means all Intellectual Property of inGenious AI incorporated in the Services, including without limitation inGenious AI’s Proprietary Technology, but excluding the SaaS Platform which shall be separately licensed to the Client in accordance with clause 4.2.
(b) The Client acknowledges that inGenious AI retains ownership of all of inGenious AI's Background IP.
(c) inGenious AI grants the Client a non–exclusive, perpetual, non–transferable, royalty-free and worldwide licence to use, for the purposes of its day to day business, inGenious AI’s Background IP to the extent that it is contained within the Services.
(d) The client must not directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Background IP of inGenious AI or the SaaS Platform or any documentation or Intellectual Property associated with it, except where expressly permitted by inGenious AI.
11.2 Background IP of the Client
(a) For the purposes of this clause, Client IP means all Intellectual Property of the Client contained in any information provided to inGenious AI in the course of providing the Services.
(b) inGenious AI acknowledges that the Client retains ownership of all of Client IP.
(c) The Client grants inGenious AI a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP to the extent that it is contained within the Services.
11.3 Third-Party IP
(a) For the purposes of this clause Third-Party IP means any rights which are owned by a third-party that are attached to any Deliverables included in the Services.
(b) inGenious AI shall grant to the Client such rights as the owner or licensor of the Third-Party IP permits inGenious AI to grant the Client.
(c) inGenious AI is not responsible for any loss or damages suffered by the Client arising from or in relation to the Third-Party IP.
11.4 Assignment of New IP to inGenious AI
(a) Any Intellectual Property generated by inGenious AI for the Client in the process of providing the Services and/or Deliverables (New IP) is owned absolutely by inGenious AI and vests in inGenious AI immediately.
(b) To the extent that the Client may at any time acquire any Intellectual Property Rights in the New IP in or from the Services, the Client, by this document, agrees to assign to inGenious AI all such rights, title and interest to the New IP as set out in this Agreement.
(c) inGenious AI grants the Client a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, inGenious AI’s New IP to the extent that it is contained within the Services.
(d) In addition to this Agreement, the parties may enter into a formal written agreement to govern the assignment of Intellectual Property Rights, the terms of which shall prevail if there is any inconsistency with the terms of this Agreement.
12.1 Neither party shall associate the other with a Project when promoting the outcomes of the Project, without the prior consent of the other party. Unless otherwise notified in writing by the Client, the Client hereby consents to inGenious AI to associate the Client with a Project when promoting the outcomes of the Project.
13.1 inGenious AI will keep all Confidential Information in confidence during the term of this Agreement and on an ongoing basis after the term of this Agreement.
13.2 inGenious AI must not:
(a) use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
(b) disclose any of the Confidential Information except in accordance with clauses 13.3 or 13.4.
13.3 inGenious AI may disclose Confidential Information to its Personnel if:
(a) the disclosure is required to enable inGenious AI to perform its obligations or to exercise its rights under this document; and
(b) prior to disclosure, inGenious AI informs the person of inGenious AI’s obligations in relation to the Confidential Information under this document.
13.4 Subject to clause 13.5, inGenious AI may disclose Confidential Information that inGenious AI is required to disclose:
(a) to its legal advisors to enable its legal advisors to advise ingenious AI in relation to its rights and obligations under this Agreement;
(b) to its financial advisors and financiers to assist ingenious AI in undertaking its evaluation in relation to the Agreement and upon those person agreeing to maintain and protect absolute confidentiality of any Confidential Information disclosed to them;
(c) by law or by order of any court or tribunal of competent jurisdiction; or
(d) by any Government Agency, stock exchange or other regulatory body.
13.5 If inGenious AI is required to make a disclosure under clause 13.4, inGenious AI must:
(a) to the extent possible, notify the Client immediately it anticipates that it may be required to disclose any of the Confidential Information; and
(b) only disclose Confidential Information to the extent necessary to comply.
13.6 The Client and inGenious AI must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
14 Use of Systems
14.1 The Client may require inGenious AI to use particular systems from time-to-time.
14.2 By agreeing to a Project, the Client agrees that it grants inGenious AI access to systems, probe any hardware and do all such things so required to undertake the Project.
15 Policies and Guidelines
15.1 The Client will keep inGenious AI aware of any policies or guidelines it has with respect to its business which inGenious AI must follow. Failure to disclose such policies or guidelines will render them ineffective against inGenious AI
16 Force Majeure
16.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
16.2 Following a notice of Force Majeure in accordance with clause 16.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
16.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
16.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
16.5 The term of this Agreement will not be extended by the period of Force Majeure.
17 Dispute Resolution
17.1 If any dispute arises between the Client and inGenious AI in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
(a) includes or is accompanied by full and detailed particulars of the Dispute; and
(b) is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
17.2 Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and inGenious AI must meet and seek to resolve the Dispute.
17.3 Subject to clause 17.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
17.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
17.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
18 Liability & Indemnity
18.1 In no circumstances will inGenious AI be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Client’s access to, or use of, or inability to use the Services, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not inGenious AI knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
18.2 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, inGenious AI and its related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, liability of inGenious AI for breach of any implied warranty or condition that cannot be excluded is restricted, at inGenious AI’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
The Client indemnifies inGenious AI against any damage, loss or costs arising in relation to the Client’s breach of this Agreement and/or the Client’s breach of the SaaS Platform’s terms of service, except to the extent that the breach was caused or directly contributed to by inGenious AI.
19.1 This Agreement shall end when the Services and/or Deliverables have been completed by inGenious AI in the reasonable opinion of the Client, or at any time agreed by the parties in writing.
19.2 Without affecting any other rights or obligations of the parties, either party may terminate this Agreement by giving 30 days’ written notice.
19.3 Where a party is in breach of this Agreement, the other party may provide the breaching party a notice to remedy the breach within a reasonable time, which shall not be less than 10 business days. Should the breach remain unremedied then the other party may terminate this contract by written notice. Upon termination pursuant to this clause 19.3, the Client will remain liable to pay any Fees to ingenious AI for all active and/or delivered Projects until the date of termination.
19.4 Should the Client terminate this Agreement without cause, it shall remain liable to pay any Fees that it had agreed to pay inGenious AI for all active and/or delivered Projects.
20 Amendment and Assignment
20.1 The Client may only assign or otherwise create an interest in their rights under this Agreement with the written consent of inGenious AI.
21 Electronic Communication & Notices
21.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
21.2 The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.
21.3 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.4 Notices to the Client shall be sent to the address provided by the Client in the SoW or any other relevant document.
21.5 Notices to inGenious AI must be sent to:
inGenious AI Pty Ltd Level 4, 152 Elizabeth Street Melbourne, Victoria, 3000 firstname.lastname@example.org
22.1 Precedence. To the extent that the SoW is inconsistent with this Agreement, the terms of the SoW will prevail. To the extent that the Special Conditions or Change Request are inconsistent with the SoW, the provisions of those Special Conditions or Change Request (as the case may be) will prevail. To the extent that the SaaS Platform terms of service is inconsistent with this Agreement, the terms of this Agreement will prevail.
22.2 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.3 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.4 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.5 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.6 Governing Law. This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
22.7 Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
22.8 Inconsistency. Subject to clause 22.1,if this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
22.9 Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
22.10 Time. Time is of the essence in this Agreement.
22.11 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
22.12 Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this Agreement.
(d) A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
(i) A reference to dollars or $ is to an amount in Australian currency.
Version 2.0 (12/07/2020)