1 INTERPRETATION
1.1 Dictionary
Words in this MSA in italics have the meanings set out in the dictionary at the end of Part 2.
1.2 Interpretation
In this MSA unless the context otherwise requires:
(a) (headings) headings are for convenience only and do not affect interpretation;
(b) (singular) the singular includes the plural and vice versa;
(c) (includes) a reference to “includes" means “includes, but is not limited to”;
(d) (corresponding meanings) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) (other entities) a reference to a person, trust, partnership, joint venture, association, corporation, organisation, society, firm, authority or other entity and includes any of them;
(f) (successors and assigns) a reference to a party to a document includes that party's permitted successors, assigns, administrators and substitutes;
(g) (rules of construction) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of a service schedule;
(h) (joint and several) an agreement on the part of 2 or more persons binds them jointly and severally; and
(i) (writing) a reference to a notice from, consent or approval of a party and agreement between the parties, means a written notice, consent, approval or agreement.
2 PROVISION OF SERVICES
2.1 Ipera to Provide Services
(a) Ipera will use all reasonable endeavours to provide a service in accordance with the service schedule.
(b) You acknowledge the services provided by Ipera may not be fault free.
(c) Except as expressly set out in the service schedule for a service, Ipera may determine the means by which a service is provided and may alter those means at any time.
2.2 Service Levels
(a) If the service schedule for a service specifies warranted service levels for that service, Ipera will use all reasonable efforts to ensure the service performs in accordance with those warranted service levels.
(b) In determining whether a service has performed in accordance with the warranted service levels, the parties must disregard a failure of the service to perform in accordance with the warranted service levels during any period when Ipera is impeded or delayed in performing its obligations under this MSA wholly or partly by:
(1) your failure or delay in performing your obligations under this MSA;
(2) a delay in Ipera obtaining access to the premises;
(3) a delay by you in providing information requested by Ipera;
(4) a delay by you in complying with any reasonable request by Ipera; or
(5) force majeure.
(c) A failure by the service to meet the warranted service levels is not a breach of this MSA or grounds for any claim by you against Ipera.
2.3 Rebates
(a) If the service schedule for that service provides for a rebate for a failure by the service to meet the warranted service levels, you may request the rebate by notice in writing to Ipera setting out the details of the failure and the basis of calculation of the rebate.
(b) If Ipera agrees with your request for a rebate, Ipera will allow that rebate to you in its next invoice to you.
2.4 Location of Service
(a) Ipera is not obliged to agree to you terminating a service because you are moving from the premises, except as otherwise specifically set out in this MSA.
(b) If Ipera agrees to provide the service at the different premises, you and Ipera must agree and execute a new service schedule for the provision of the service at or to those premises.
3 TERM OF MSA AND SERVICE SCHEDULES
3.1 Term of this MSA
(a) This MSA will commence on the date of this MSA and will continue until terminated by one of the parties by not less than 60 days written notice, unless otherwise terminated in accordance with this MSA.
(b) Except as otherwise set out in this MSA, a party cannot terminate this MSA before:
(1) expiry of the term of this MSA; or
(2) expiry of the minimum term of any service.
3.2 Continuation of this MSA
This MSA will not expire or terminate solely because one or more service expires or is terminated.
3.3 Commencement of Service
(a) Ipera will endeavour to commence providing a service from the date set out as the commencement date in the service schedule applicable to that service.
(b) Ipera may defer commencement of a service by notice to you if Ipera is unable to provide the service to you at the commencement date.
(c) Ipera may defer commencement of a service more than once.
(d) The commencement date and cancellation date for a service will automatically be extended by the period of any force majeure.
(e) You may terminate a service schedule by 10 business days notice if Ipera does not commence provision of a service within 14 days of the commencement date for that service.
(f) You have no claim arising from Ipera’s failure to commence providing a service by the commencement date or the cancellation date. Unless an installation SLA has been agreed to in writing.
3.4 Term of a Service
(a) Subject to this MSA, a service will start on the commencement date and continue until the service schedule for that service is terminated by a party by not less than 60 days written notice.
(b) A party can not terminate a service schedule during the minimum term for that service schedule.
4.1 Safe Access
If Ipera needs to access your premises to provide the services:
(a) you must ensure Ipera and it’s associates are able to safely access the premises whenever reasonably required by Ipera;
(b) and if you provide Ipera with keys to access the premises, Ipera must securely store the keys to the premises;
(c) and if you require Ipera to be admitted to the premises after hours by a security firm, Ipera will reimburse you the reasonable amount charged to you by the security firm for attending the premises, unless the fault or problem affecting the service is identified as having arisen as a result of your equipment.
4.2 Contact
You must ensure at least one of the persons specified in a service schedule, or another person notified by you to Ipera, is able to be contacted at all times.
4.3 Indemnity
You indemnify and hold Ipera and Ipera’s associates harmless against all claims by you or any other person in connection with any injury, loss or damage suffered by Ipera or its associates while on the premises in connection with:
(a) Ipera’s or Ipera’s associates’ access to the premises;
(b) damage or alterations to the premises by Ipera or its associates or in relation to the provision of services or the installation of cabling or equipment related to the provision of the services;
(c) injury, loss or damage suffered by Ipera or its associates while on the premises;
(d) Ipera or its associates inability to obtain access to the premises in accordance with clause 4.1, or
(e) any work done, or equipment placed, on the premises by Ipera or its associates,
except to the extent a claim arises as a result of Ipera’s, or its associates, negligence or wilful misconduct.
4.4 Licence to Your Premises
(a) If it is necessary or desirable for Ipera to install Ipera equipment on your premises, you grant Ipera and its associates, at no charge, an irrevocable licence during the term to install and keep Ipera equipment on the premises and to enter the premises;
(1) At such times as reasonably required by Ipera to inspect, provide, maintain and replace any facility or Ipera equipment subject to your reasonable requirements regarding security and safety of which you notify Ipera in writing from time to time; and
(2) During such period reasonably required by Ipera following termination of this MSA or any relevant service schedule in accordance with clause 19 to allow Ipera or its associates to remove Ipera equipment located at the premises.
(b) You warrant you have the authority to grant the licences in this clause 4.4.
(c) Nothing in this MSA grants either party any property rights in, or a lease of, any part of the other party’s premises.
4.5 Ipera Equipment
If it is necessary or desirable for Ipera to install Ipera equipment on your premises, Ipera retains ownership of all Ipera equipment located on the premises even if part or all of that equipment becomes a fixture on the premises.
5 POWER SUPPLY
Where required by Ipera, you will provide at no cost to Ipera local access to a reliable source of mains power for any Ipera equipment or third party equipment located within your premises which is required by Ipera to provide the service.
6.1 Outsourcing
(a) Ipera may, at its discretion, source some or all of a service from a third party.
(b) If Ipera intends to use a third party to provide you all or part of a service, Ipera will notify you of its nominated third party service provider for that service. Unless you notify Ipera within 5 business days of your objection to the third party Ipera nominates, Ipera may use that third party service provider to provide you all or part of a service.
(c) Unless otherwise set out in this MSA, a service sourced by Ipera from a third party will be provided on the terms and conditions set out in this MSA, including the service schedule for that service.
6.2 Reselling Third Party Services
(a) If the service schedule for a service provides that a third party terms and conditions apply to part or all of that service, your rights in relation to that part of the service are limited to those set out in those third party terms and conditions, unless otherwise set out in the service schedule.
(b) If the third party’s terms and conditions provide for that part or the service to be provided to you by the third party, or are expressed as an agreement between you and the third party:
(1) any rights you have under the third party’s terms and conditions are rights exercisable in respect of the third party only and not against Ipera;
(2) Ipera is not liable for any failure of the third party to provide that part of the service in accordance with the third party terms and conditions; and
(3) your obligations under this MSA, including your obligation to pay Ipera, are not suspended or reduced by a failure of the third party supplier to provide that part of the service in accordance with the third party’s terms and conditions.
7 MAINTENANCE
7.1 Ipera Equipment
Ipera:
(a) may carry out maintenance on Ipera equipment or any one or more components of Ipera equipment at any time;
(b) will use its reasonable endeavours to provide 3 days notice to you prior to carrying out maintenance which will affect the performance or availability of a service and will carry out the relevant maintenance at times and for the duration nominated by Ipera; and
(c) will use its reasonable endeavours to minimise the period of any interruptions to you if maintenance is required as a result of an emergency.
7.2 Fault Management Services
Unless stated otherwise in a service schedule, provision of a service by Ipera includes the provision of fault management services for Ipera equipment used in that service but excludes the cost of remedying problems or faults resulting from:
(a) unauthorised use of Ipera equipment, including your failure to use any Ipera equipment in accordance with the relevant operating instructions provided by Ipera, or maintenance service or remedial work carried out on Ipera equipment by anyone other than Ipera (unless expressly authorised in writing by Ipera to do so);
(b) any cause external to Ipera equipment, including:
(1) use by you of equipment connected directly or indirectly to Ipera equipment;
(2) your failure to use any of your equipment in accordance with the relevant manufacturers operating instructions or as instructed in writing by Ipera from time to time;
(3) faults in or caused by problems in your equipment;
(4) any act of damage or interference or negligent use by you or your associates while operating on your equipment that adversely affects Ipera’s ability to provide the services;
(5) any force majeure event to the extent it affects Ipera equipment;
(6) environmental conditions for Ipera equipment not meeting any environmental requirement set out in a service schedule; and
(7) any failure or fluctuation of the electrical power supply to Ipera equipment, failure of air conditioning, or external interference.
7.3 Additional Fault Management Services
If you request fault management services in respect of any of the matters listed in clause 7.2 or otherwise not covered by a service schedule, Ipera may agree to provide such services at your expense at Ipera’s then current standard attendance and maintenance rates.
8 BACK UP
8.1 You must back up Data
You are responsible for ensuring you make adequate back up copies of data in a way, and sufficiently frequently, to enable you to recover that data if a service provided by Ipera fails or causes a loss of data.
8.2 Provision of back up Services
(a) If Ipera specifically agrees in a service schedule to provide a service which includes making back up copies of data, Ipera will provide you:
(i) A copy of its documentation of the back up process it uses;
(ii) One (1) free test restore for the data per annum; and
(iii) Additional test restores for the data if requested, at Ipera’s then current rates for such services.
(b) Having regard to clause 8.2(a), you must satisfy yourself the services offered by Ipera are sufficient to adequately protect the integrity of your data, and the data of other parties who may be relying on you.
(c) Ipera does not warrant the service will be fault free or will permit the recovery of any particular data or any data from any particular back up copy of that data.
8.3 Liability
(a) Despite any other provision of this MSA, including any provision of a service schedule, Ipera is not liable to you or any other person for any claim in connection with a loss of data, whether or not Ipera had agreed to provide a service including the back up copying of that data.
(b) You indemnify and hold Ipera harmless against any claim by any person relating to a loss or corruption of data arising in connection with this MSA or the provision of any service by Ipera to you.
9 CHARGES AND PAYMENT
9.1 Credit Checks
You consent to Ipera conducting any credit checks Ipera considers appropriate for the purposes of establishing an account with you and for the ongoing credit management of that account in relation to the provision of any service. You also consent to Ipera disclosing to any credit reporting agency information relating to you which is in Ipera’s possession and reasonably required by the credit reporting agency to provide Ipera a credit check about you.
9.2 Charges
(a) You must pay Ipera all charges within the period specified in Ipera’s invoice for those charges.
(b) Ipera’s records are sufficient evidence of the charges payable unless they are shown to be incorrect.
(c) If you request Ipera to provide additional services during the minimum term of any service schedule, the rates specified in that service schedule will apply.
9.3 Amending the Charges
(a) Subject to clause 9.3(b) Ipera may amend the charges in effect from any time after the minimum term by not less than 30 days written notice to you.
(b) If, at any time after the minimum term, Ipera proposes to amend the charges for a service as a result of an increase in the amount payable by Ipera to a third party:
(1) Ipera must notify you of the amended charges as soon as reasonably practicable; and
(2) Ipera may amend the charges with effect from the date of increase of the amount payable by Ipera to the third party.
(c) You may, by written notice to Ipera within 5 business days of a notice under clause 9.3(a) or (b) increasing the charges for a service, terminate the service schedule for that service with effect from the date of increase of the charges.
9.4 Taxes and GST
(a) Ipera may recover from you any existing or new duties or taxes (including GST) which may be imposed on Ipera on or in relation to Ipera’s supply to you of any goods or services in accordance with a service schedule.
(b) Unless otherwise specified, you must pay Ipera the amount of GST payable in respect of a supply in addition to the charges set out in the service schedule.
9.5 Disputed Charges
If you dispute any portion of any charge claimed in an invoice submitted by Ipera, you must pay the portion of the amount stated in the invoice which is not in dispute and notify Ipera in writing (within 14 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute should have been paid at the time it was invoiced, then you must pay the amount finally resolved together with interest on that amount.
9.6 Interest for Non-payment
Where any amount due by you to Ipera remains unpaid following notice by Ipera not less than 1 month after the date on which the amount is due, then, without prejudice to Ipera’s rights to suspend or terminate the services or this MSA, you must, if Ipera requests, pay Ipera interest on that amount at the rate equivalent to the rate for Westpac Banking Corporation overdraft accounts of less than $50,000 from time to time, plus 3%.
10.1 Non Disclosure
A party must not without the prior written approval of the other party disclose the other party’s confidential information.
10.2 Employees and Contractors
(a) Each party must take all reasonable steps to ensure its associates do not make public or disclose the other party’s confidential information.
(b) A party may at any time require the other party to arrange for its associates who may have access to confidential information to execute a confidentiality deed. The other party must arrange for the deeds to be executed within the time frame reasonably proposed by the requesting party.
10.3 Return of Documents
A party must, on demand, return to the other party, any documents supplied by the other party in connection with this MSA and any associated service schedules, or which contain confidential information.
10.4 Survival
This clause 10 survives termination of this MSA.
11.1 Ipera to Maintain
Ipera will obtain and maintain any licence required to provide the services during the term.
11.2 Acknowledgement
You acknowledge Ipera’s ability to supply the services may depend upon a licence, but that the issue, re-issue or renewal of a licence for a further period may not be automatic.
11.3 Loss of Licence
(a) Subject to clause 11.3(b), if:
(1) the relevant authority or third party does not renew, or notifies Ipera it will not renew, one or more licence; or
(2) a relevant authority issues, or notifies Ipera it will issue, one or more licence using a price-based method or market-based method; or
(3) the cost to Ipera of obtaining one or more licence changes in a material and adverse way, then
Ipera may at its absolute discretion, by written notice to you, terminate all or any part of any service schedule for any service which Ipera cannot lawfully provide, in the manner specified in the service schedule, if it does not hold the licence, effective from the earlier of:
(1) 12 months from the date of the notice;
(2) the time Ipera ceases to hold that licence.
(b) If an event specified in clause 11.3(a) occurs:
(1) Ipera must notify you as soon as reasonably possible; and
(2) the parties agree to meet as soon as practicable after a request from Ipera, to negotiate, in good faith, amendments to the service schedule.
12.1 Collection
You acknowledge Ipera may be required to collect a limited amount of personal information about you or your associates (including but not limited to after hours contact numbers and email addresses) to assist in its provision of a service to you.
12.2 Compliance with Law
Ipera will comply with its obligations under the Privacy Act regarding any personal information about you or your associates it collects or uses.
12.3 Use of Personal Information
You authorise or will obtain authority for Ipera and its associates to use personal information relating to you or your associates to assist Ipera its associates:
(a) to comply with all relevant directions and orders issued by the ACA from time to time;
(b) to analyse your communication patterns and service usage patterns and market or offer to you alternate or additional services which may be available form time to time from Ipera, its related companies or suppliers.
13 NOT A LEASE OR LICENCE TO OCCUPY
Each party agrees that this MSA does not grant the other party any property rights in, or licence to occupy, any part of the other party’s premises.
14 TITLE
The parties agree that at all times during and after the term of this MSA, title to your equipment remains with you and title to all Ipera equipment remains with Ipera.
15 YOUR OBLIGATIONS
15.1 Specific Obligations
You must comply with all your obligations set out in this MSA and any service schedule.
15.2 Compliance with Law
You and your associates:
(a) are not authorised to act on behalf of Ipera;
(b) must comply with all reasonable directions of Ipera to assist in complying with any law;
(c) must comply with all relevant directions and orders issued by the ACA from time to time; and
(d) must comply with all other laws relevant to use of the services.
15.3 Facilities and Equipment
(a) You must take all reasonable steps to prevent damage to Ipera equipment and any other third party equipment used in relation to the services.
(b) You are not required to insure Ipera equipment, even if it is located on your premises.
(c) You and your associates :
(1) must not cause damage to Ipera equipment;
(2) must not cause damage to any facility associated with the services or which is located in the premises; and
(3) must immediately notify Ipera if you become aware of any loss of, damage to or malfunction of Ipera equipment;
(d) You indemnify Ipera against any loss of, or damage to Ipera equipment as a result of your or your associates negligent acts or omissions or wilful misconduct.
(e) Where a service includes any of your equipment, you are solely responsible for the maintenance of your equipment, unless otherwise expressly provided in this MSA, or a service schedule.
15.4 Interference with Services
You must:
(a) not interfere with or impair the use or operation of, or do anything likely to interfere with or impair the use or operation of the services;
(b) ensure the use of your equipment does not interfere with the services or the Ipera network;
(c) ensure your equipment accords with all laws including, standards determined by ACA pursuant to the Act or included in any relevant licence issued pursuant to the Act; and
(d) comply with any written notice given by Ipera in relation to modifications required to your equipment, or action necessary to be taken, to eliminate actual or likely interference or impairment of the services or the Ipera network.
15.5 Authorised Use
You must not use or allow another person to use the services or Ipera equipment:
(a) in a way which is contrary to any law; or
(b) for the transmission of content which is, or may be, defamatory; or
(c) for the transmission of content of a type notified by Ipera to you, which Ipera reasonably considers may result in a claim against Ipera.
16.1 Limitation of Liability
(a) Except as expressly provided in a service schedule, Ipera’s liability to you for any loss or damage arising directly or indirectly as a result of Ipera’s performance or non-performance of its obligations under this MSA is limited to the performance by Ipera of those obligations again.
(b) In the event your equipment is either lost or damaged as to make repair impracticable, while in the premises, as the result of Ipera’s negligence or intentional acts or omissions, the maximum liability of Ipera for the your equipment will not exceed the insured replacement value of your equipment as stated in the relevant service schedule or, in the event your equipment is repairable, the cost of repairing the damage.
16.2 Exclusion of Liability
Except as otherwise expressly provided in this MSA, Ipera is not liable to you for any loss or damage (including consequential loss or damage) arising directly or indirectly in respect of:
(a) the exercise by Ipera of any right under this MSA, including a right to terminate this MSA or a service schedule, or suspend a service;
(b) any act or omission of Ipera or its associates, whether negligent or not, which has caused any damage or loss to you or any other person claiming by or through you; or
(c) a failure of supply of any service or the unavailability of any communication facility or network.
16.3 Consequential Loss
(a) Despite any other provision of this MSA, Ipera and its associates, are not liable to you for any loss of profits, loss of business opportunities, indirect, special or consequential loss or damage of any nature.
(b) If a service schedule provides Ipera or its associates’ liability to you is different from the position set out in this clause 16, clause 16.3(a) applies unless specifically identified and varied in that service schedule.
Ipera and its associates exclude, to the extent permitted by law, any conditions or warranties implied by law in this MSA. Where law implies in this MSA any condition or warranty that cannot be excluded, the liability of Ipera for any breach of such a condition or warranty is limited, at Ipera’s absolute discretion, to one or more of the following:
(a) if the breach relates to goods:
(1) the replacement re-supply or repair of the goods; or
(2) the payment of the cost of replacing, re-supply or repairing the goods;
(b) if the breach related to services:
(1) the supply of the services again; or
(2) the payment of the cost of having the services supplied again.
17 YOUR LIABILITY
17.1 Warranties
You warrant:
(a) when deciding to enter a service schedule, you have not relied on any written or oral representation made by Ipera which has not been stated expressly in this MSA, including in a service schedule; and
(b) you have obtained all necessary statutory and regulatory approvals required to install and operate your equipment at the site and connect your equipment to Ipera equipment.
17.2 Indemnities
(a) You indemnify and hold Ipera and its associates harmless against any loss (including reasonable legal costs and expenses) or liability suffered or incurred by Ipera or any of its associates arising from any claim or proceedings against Ipera or any of its associates by any third party, including your customers and associates, in connection with a service, including that a service was not available.
(b) You indemnify and hold Ipera and its associates harmless against any loss (including reasonable legal costs and expenses) or liability suffered or incurred by Ipera or any of its associates arising from any claim or proceedings against Ipera or any of its associates by any third party, including your customers and associates, in connection with a service, including that a service was not available where such loss or liability was caused by:
(1) a breach by you or your associates of your obligations under this MSA;
(2) any delay, failure or cessation by those indemnified to supply or provide services to you;
(3) any wilful, unlawful or negligent act or omission by you or your associates;
(4) the presence of your equipment at the premises;
(5) the installation, operation, maintenance or removal of your equipment on or from the premises;
(6) the connection by or at your direction of your equipment to any network that is not in accordance with any directive of the ACA, your obligations under the Act or any other relevant law or regulation of the Commonwealth of Australia;
(7) any defects in your equipment; or
(8) any alleged breach of a person’s rights (including but not limited to defamation) by or through your or your associates use of the services.
(c) Your liability for any claim under this clause 17 is reduced to the extent the claim arises as a direct result of Ipera’s or its associates negligent or intentional acts or omissions.
18.1 Right to suspend services
(a) If during the term you are in breach of any obligation under this MSA including any service schedule (including non-payment of charges) Ipera may issue a suspension notice to you.
(b) If you do not:
(1) notify Ipera, in accordance with clause 25.1(b), that you dispute you are in breach of the obligation and set out the genuine grounds for the dispute; or
(2) remedy the breach within 7 days of notice from Ipera, then
Ipera may at its absolute discretion:
(1) reduce the operating capacity of part or all of any one or more services; and
(2) suspend part or all of any one or more services,
in the manner specified in the suspension notice until the breach is remedied to Ipera’s reasonable satisfaction.
18.2 Suspension without notice
Ipera may, at its discretion, suspend the service without notice:
(a) if Ipera reasonably considers it is necessary to do so to comply with any law, protect any person or equipment, or enable any persons to attend to an emergency; or
(b) as an alternative to the exercising a right of termination immediately exercisable in Ipera under this MSA.
19.1 Termination of Service
In addition to any other right of termination under this MSA, a party (the “terminating party”) may terminate a service schedule immediately by notice in writing if:
(a) the other party is in breach of a material term, including an obligation to pay money, of a service schedule and the breach is not remedied within thirty (30) days of notice by the terminating party to rectify the breach;
(b) the other party commits an act of insolvency; or
(c) the other party ceases or threatens to cease conducting its business in the normal manner.
19.2 Termination of this MSA
In addition to any other right of termination under this MSA or a service schedule a party (the “terminating party”) may terminate this MSA immediately by notice in writing if:
(a) the party commits an act of insolvency; or
(b) the other party ceases or threatens to cease conducting its business in the normal manner.
19.3 Termination by Ipera
In addition to any other right of termination under this MSA Ipera may terminate this MSA immediately by notice in writing if you are in breach of an obligation to pay any money to Ipera and that money is not paid within 30 days of notice by Ipera to you.
(a) Neither party will be liable for any delay or failure to perform its obligations pursuant to any service schedule where such delay is due to force majeure.
(b) If a delay or failure or a party to perform its obligations is caused or anticipated due to force majeure, the performance of that party’s obligations will be suspended for the duration of the force majeure.
(c) If a delay or failure by a party to perform its obligations due to force majeure exceeds 60 days, either party may immediately terminate the affected service schedule on providing notice in writing to the other party.
(d) If any service schedule is terminated pursuant to clause 20(c), as a result of force majeure suffered by Ipera, Ipera will refund monies previously paid by you pursuant to that service schedule for goods or services not provided by Ipera to you.
21 EMPLOYEES
You acknowledge:
(a) Ipera’s associates may be restricted from seeking employment with you in accordance with the term of their employment contracts (“the restrictions”).
(b) During the term of this MSA and any other relevant period set out in the restrictions, you will not employ or offer to employ any of Ipera’s associates where acceptance of your offer by an Ipera associate my breach the restrictions; and
(c) Clause 21(a) is a reasonable restriction to protect Ipera’s business.
22.1 Risk of Loss
You bear the entire risk of loss or damage to your equipment. Ipera bears the entire risk of loss or damage to Ipera equipment.
22.2 Maintain Insurance
(a) You must, at your expense, maintain comprehensive building and contents insurance policies for your equipment and public liability insurance to cover your potential liability for any claim for which you may become liable to indemnify Ipera under this MSA.
(b) Ipera must, at its own expense, maintain comprehensive public liability insurance and building and contents insurance policies for Ipera equipment and for any location in its premises provided for the service.
(c) The insured amount per claim under the public liability insurance policies must be at least $10 million.
22.3 Evidence
Each party must on reasonable request, provide to the other, a copy of the certificate of currency for those insurance policies referred to in this clause.
You must not assign the benefit of the whole or any part of the MSA without Ipera’s prior approval, which will not be unreasonably withheld.
24.1 Variation
A variation or waiver of a provision or any amendment of any part of this MSA or a service schedule is effective only if in writing and signed by both parties.
24.2 No Waiver
(a) A failure, delay, relaxation or indulgence on the part of a party in exercising any right or obligation conferred upon that party by this MSA or a service schedule does not operate as a waiver of that right or obligation.
(b) A single or partial exercise of any right or obligation does not preclude any other or future exercise of it, or the exercise of any other right or obligation under this MSA or a service schedule.
25 DISPUTE RESOLUTION
25.1 Commencing Dispute Resolution
(a) A party may not commence any court or arbitration proceedings relating to a dispute unless it complies with this clause 25 except where the party seeks urgent interlocutory relief.
(b) A party claiming that a dispute has arisen under or in relation to this MSA must give written notice to the other party specifying the nature of the dispute.
25.2 Informal Dispute Resolution
On receipt of that notice by the other party, the parties must endeavour in good faith to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or other techniques agreed by them.
25.3 Mediation
If the parties do not agree within 7 days of receipt of the notice (or any further period agreed in writing by them) as to:
(a) the dispute resolution technique and procedures to be adopted;
(b) the timetable for all steps in those procedures; and
(c) the selection and compensation of the independent person required for such technique,
the parties must request the President of the Law Society of New South Wales or the President's nominee to select the mediator and determine the mediator's remuneration.
25.4 Failure Of Mediation
If the dispute is not resolved within 42 days after notice is given under clause 25.1(b), then any party which has complied with the provisions of this clause 25 may in writing terminate any dispute resolution process undertaken pursuant to this clause 25 and may then commence Court proceedings in relation to the dispute.
25.5 Without Prejudice
The parties acknowledge the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this clause 25 is to attempt to settle the dispute concerned. No party may use any information or documents obtained through any dispute resolution process undertaken pursuant to this clause 25 for any purpose other than in an attempt to settle the dispute concerned.
All notices, consents, requests, demands and approvals given under this MSA or a service schedule must be in writing and given by personal service, pre-paid postage, facsimile transmission or e-mail to the addresses of the parties, and notified to the person set out in Part 1 or a service schedule or to the address or person designated by a party by written notice.
26.2 Receipt Of Notice
A notice is treated as having been duly given and received:
(a) when delivered (if left at that party's address);
(b) on the third business day after posting (if sent by pre-paid mail);
(c) in the case of a facsimile transmission, when the sender receives confirmation the facsimile transmission has been received by the other party, except if the time of confirmation is not during business hours, in which case notice is deemed received at 9.00am the next business day; or
(d) in the case of an e-mail transmission, when the sender receives a message confirming delivery from a computer system controlled by the other party, except if the time of confirmation is not during business hours, in which case notice is deemed received at 9.00am the next business day.
27 GENERAL
27.1 Entire Agreement
(a) This MSA, including all relevant service schedules, constitutes the sole and entire agreement between the parties regarding the provision of a service and a warranty, representation, guarantee or other term or condition of any nature not contained, referred to or recorded in a service schedule is of no force or effect.
(b) Nothing in this MSA constitutes or will be deemed to constitute a partnership between the parties or the appointment of one party as the agent of the other, or the employment of one party by the other, for any purpose whatsoever. Other than as expressly provided by this MSA, neither party has the authority or power to bind the other or to contract in the name of, and create a liability against, the other in any way or for any purpose.
27.2 Severability
(a) Any provision of, or the application of any provision of, or any right or obligation which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
You must pay all stamp duty on or in respect of this MSA. Each party must pay its own costs in connection with the preparation, completion and carrying into effect of this MSA.
27.4 Jurisdiction
This MSA is governed by the law of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.
DICTIONARY
ACA means Australian Communications Authority.
Act means Telecommunications Act 1997 (Commonwealth).
act of insolvency means becoming subject to external administration within the meaning of Chapter 5 Corporations Act 2001.
additional charge means a charge in accordance with Ipera’ standard rates in effect from time to time.
after hours means all times other than business hours.
associates includes a party’s employees and agents, contractors and sub-contractors or consultants.
authority includes any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
business day means except as otherwise specified for a service in a service schedule, a day other than Saturday, Sunday or public holiday in Newcastle.
business hours means except as otherwise specified for a service in a service schedule, the hours between 0900 and 1700 on any business day.
cancellation date means the cancellation date specified in a service schedule.
charges means the charges, prices and fees payable by you to Ipera for Ipera’s provision of a service under a service schedule.
claim means any claim, notice, demand, debt, action, expense, lien, liability, proceeding, litigation (including legal costs) or judgement.
commencement date means the commencement date specified in a service schedule.
common areas means those parts of the premises to which you do not have exclusive access.
confidential information means the confidential information of a party which relates to the subject matter of this MSA and includes:
(a) information relating to the personnel, policies or business strategies of either party;
(b) information relating to the terms of this MSA, including a service schedule;
(c) technical, commercial, financial or other information disclosed (whether orally, in writing or by any other means) by a party to the other party;
(d) information marked as being confidential or which the receiving party could reasonably regard as confidential; and
(e) design, drawings, know how, techniques and procedures whether or not marked as confidential;
but confidential information does not include:
(f) information which is in the public domain or is generally known or is available by publication, commercial use or otherwise without a breach of this MSA;
(g) information which the receiving party already possesses at the time of disclosure to it by the disclosing party except through a breach of an obligation of confidentiality by any third party; or
(h) information which the receiving party independently acquires except through a breach of an obligation of confidentiality by any third party.
data means information recorded in electronic form including records and software which may be affected by the services or a failure to properly provide the services .
dispute means any dispute between the parties in relation to this MSA or a service .
emergency means any event or circumstance in which Ipera reasonably consider that urgent or immediate action is required in order to:
(a) preserve the integrity of Ipera’s equipment or the Ipera network; or
(b) prevent damage or injury to any person or property.
fault management services means diagnostic or remedial work that may be required from time to time to deal with any faults or problems in or with the operation of Ipera equipment (except for faults or problems caused by faults or problems in or with your equipment) and to maintain Ipera equipment.
force majeure means an act, event or cause which is beyond the reasonable control of Ipera or you, including:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemy, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
(c) failure of or delay in computer software or hardware or telecommunications networks or links other than software, hardware and telecommunications networks and links forming part of the Ipera network; and
(d) strikes,
but excludes lack of funds.
GST means a Goods and Services tax payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 or any related law to any authority by a person as a supplier of goods or services.
Installation SLA means an agreement between Ipera and you for the installation of equipment or connection of third party service necessary to provide a service to you.
Ipera means the Ipera company or companies entering this MSA as specified in Part 1.
Ipera equipment means the equipment owned or operated by Ipera situated at the premises or used by Ipera to provide a service.
Ipera network means the telecommunications network owned by Ipera or a related company, including optical fibre links and microwave links.
law includes any requirement of any statute, regulation, proclamation, ordinance, by-law or common law, present or future and whether state, federal or otherwise.
licence means a licence (including a licence to use third party intellectual property, an ACA class licence, authorities, consents, approvals or permits) which Ipera is required to hold or obtain to lawfully provide the services.
minimum term for a service, means the period specified in the service schedule for that service.
MSA means both Parts 1 and 2 of this master services agreement for supply of the services including all signed service schedules.
Part means a part of this MSA.
party means you or Ipera, and parties will have a corresponding meaning.
personal information means information defined as personal information under the Privacy Act .
premises means the building or premises occupied wholly or in part by you at which a service is to be provided or a network termination point installed.
Privacy Act means Privacy Act 1988 (Commonwealth).
rebate means a reduction in the charges for a period you may be eligible to claim from Ipera subject to clause 2.3, if a service does not achieve the warranted service level .
service means the service described in a service schedule.
service schedule means a document produced by Ipera with which you can request Ipera provide a service.
suspension notice means a notice under clause 18.
term means the term of this MSA as described in clause 3.1.
warranted service level means the level of performance or availability of a service set out in the relevant service schedule which Ipera warrants that service will achieve .
your equipment means equipment owned or to be supplied by you, including equipment specified in a service schedule.
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