Below are the terms that make up the Master Service Agreement. This document was last updated on 25th June 2021 at 4:30 PM Melbourne Time.

  1. Introduction
    1. MSA: This MSA is entered into between the parties, as set out in an applicable SOW (together called the ‘parties‘ and each a ‘party‘).
    2. Services: Vokke is a supplier of custom software systems. The Client wishes Vokke to supply the Services to the Client. Vokke agrees to supply the Services to the Client in accordance with the terms of this MSA.
  2. Term
    1. Start Date and End Date: This MSA starts on the Start Date and ends on the End Date, unless earlier terminated in accordance with its terms (‘Term‘).
    2. What makes up this MSA: This MSA consists of (in the order of priority, and together the ‘MSA‘)
      (a) these Vokke Master Terms;
      (b) the applicable Solutions Schedules;
      (c) the SOWs; and
      (d) any other terms and conditions as set out on a URL provided by Vokke
    3. Acceptance: The Client accepts this MSA by the earlier of:
      (a) signing and returning a SOW to Vokke;
      (b) confirming by email or accepting the MSA via the platforms or applications through which Vokke provides the MSA to the Client; or
      (c) instructing Vokke (whether orally or in writing) to proceed with the provision of the Services or making part or full payment of the Fees.
    4. Acting on behalf of an entity: If the Client is agreeing to this MSA on behalf of an entity it represents (‘Client Entity‘), then ‘Client‘ means the Client as the individual user and the Client Entity and the Client is binding the Client Entity to this MSA. If the Client accepts this MSA on behalf of the Client Entity, the Client represents that the Client has the legal authority to do so.
  3. Vokke Services
    1. Standing Offer: This MSA constitutes a “standing offer” under which, during the Term, Vokke may provide the Services under separate SOWs.
    2. Vokke Services: The Client may, from time to time, request Vokke to provide a draft SOW in relation to any Services. If the Client requests Vokke to provide a draft SOW, Vokke may, in Vokke’s sole discretion, provide a draft SOW in response.
    3. Agreed SOW: If the parties execute a draft SOW:
      (a) the parties will have entered into a SOW for Vokke to supply to the Client the Services set out in that SOW;
      (b) the terms set out in this MSA will be incorporated into that SOW; and
      (c) there may be more than one SOW, and the details in each SOW only apply to the Services to be provided under that SOW.
  4. Variations
    1. Process: If the Client wishes to request a Variation, the following process in this clause will apply.
    2. Short Form Variation: If agreed between the parties, the MSA may be varied in writing via email.
    3. Long form Variation: The Client will complete and provide to Vokke a Variation Form. Vokke will, within 14 days of receipt of a Variation Form, provide to the Client a Variation Cost Proposal. The Client will, within 14 days of receipt of a Variation Cost Proposal, either accept or reject the Variation Cost Proposal.
    4. Acceptance: If a Variation Cost Proposal is accepted, the relevant SOW will be amended to incorporate the Variation as set out in the Variation Form and the Variation Cost Proposal.
    5. Vokke Variation: If Vokke wishes to propose a Variation, the following process will apply:
      (a) Vokke will complete and provide to the Client a Variation Form (including but not limited to details of any additional costs or any other impacts);
      (b) the Client will, within 14 days of receipt of a Variation Form, either accept or reject the proposed Variation; and
      (c) if the Variation is accepted, the relevant SOW will be varied to incorporate the Variation as set out in the Variation Form.
  5. Client’s Responsibilities
    1. Responsibilities: The Client must, at the Client’s own expense:
      (a) provide all reasonable assistance and cooperation to Vokke in order to enable Vokke to supply the Services in an efficient and timely manner;
      (b) permit all members of Vokke’s Personnel to have reasonable access to the Client’s premises and facilities for the purposes of supplying the Services;
      (c) ensure that Vokke has full and unhindered access to any items of equipment relevant to the Services during business hours or at such other times as agreed between the parties;
      (d) permit all members of Vokke’s Personnel to have access to any reasonable computing, office productivity software tools, email and internet facilities necessary for the purposes of supplying the Services;
    2. (e) make any changes to the Client’s current systems, software and hardware that may be required to support the delivery and operation of any Services or Hardware; and
      (f) populate and maintain any databases associated with or for the purpose of the Services.
    3. Representatives: The Client must provide to Vokke details of an individual for each SOW who has the authority to represent the Client in all matters concerning such the SOW.
    4. Access: The Client must:
      (a) prevent the unauthorised access to Services; and
      (b) maintain the confidentiality and security of any account details or passwords.
    5. Usage restrictions: The Client is responsible for all use of the Services and must ensure that no person uses the Services:
      (a) to break any law or infringe any person’s rights;
      (b) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
      (c) in any way that damages, interferes with or interrupts the supply of the Services.
  6. Communications
  7. Relationship
    1. Relationship manager: The Client agrees to appoint and maintain a relationship manager who will be responsible for the day to day management of the MSA. The Client’s relationship manager will meet with Vokke from time to time to ensure the appropriate and efficient management of this MSA.
  8. Non-Solicitation
    1. No solicitation: The Client will not solicit or entice any employee or contractor of Vokke to work for the Client or any business which competes with Vokke during the term of this MSA or for a period of 12 months after the date of expiry or termination of this MSA or SOW (unless the Client obtains Vokke’s express prior written consent). If the Client solicits or entices any employee or contractor of Vokke as set out above, the Client must pay to Vokke upon demand, AUD 30,000.00 (plus GST).
  9. Acknowledgements
    1. Acknowledgements: The Client acknowledges:
      (a) Vokke will not be responsible or liable for any Liability or Claim if Vokke is delayed in the provision of the Services as a direct or indirect result of the acts or omissions of the Client, any member of the Client’s Personnel or any third party; and
      (b) if Vokke is delayed in the provision of the Services as a direct or indirect result of the acts or omissions of the Client, or any member of the Client’s Personnel or any third party, the Client will pay to Vokke all costs associated with cancelling, postponing or rescheduling the relevant aspect of the Services.
    2. Facilities: The Client acknowledges that:
      (a) Vokke may provide the Services using a combination of Vokke’s own facilities and the facilities and services of other suppliers (however Vokke is not relieved of its liabilities and obligations under this MSA by such engagement);
      (b) Vokke does not make any warranty or representation as to the ability of the facilities or services of any other suppliers; and
      (c) Vokke is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the facilities or services of any other suppliers.
    3. Hardware: The Client acknowledges:
      (a) Vokke will not be liable for any Liability or Claim in connection with any delay in the delivery of any Hardware; and
      (b) risk in any Hardware will transfer to the Client when the Hardware is delivered to the Client or the Client’s carrier and title to any Hardware will transfer to the Client on payment for the Hardware.
  10. Invoices and Payment
    1. Invoices: Vokke will, from time to time or in accordance with any agreed payment milestones, invoice the Client for the agreed Fees and all agreed reasonable accommodation, travel and other expenses incurred in supplying the Services.
    2. Payment: The Client will pay each invoice without set off or delay in accordance with the payment terms set out in the invoice or if no payment terms are set out in the invoice, within 14 days from the date of invoice.
    3. Third party supplier increases: The Client acknowledges that if any other supplier on which Vokke relies to supply the Services increases the cost of such services to Vokke, then Vokke may increase the Fees by an amount reasonably determined by Vokke to recover such increase. If the Client does not accept the increase in Fees, the Client may terminate the relevant SOW on 30 days written notice to Vokke.
    4. Dispute: If the Client does not dispute any invoice prior to the date for payment of that invoice, the Client will be deemed to have accepted the invoice. If the Client wishes to dispute any portion of an invoice, the Client must pay the undisputed portion of the invoice in accordance with the payment terms set out in the invoice or if no payment terms are set out in the invoice, within 14 days from the date of invoice.
    5. Credit limit: Vokke may impose a credit limit for the Client and, if the Client exceeds such credit limit, Vokke may:
      (a) require the Client to pay in advance for any Services; or
      (b) suspend the supply of the Services or any part of the Services until the Client’s account is brought within such credit limit.
    6. Interest on late payments: Vokke may charge monthly compound interest on any overdue amounts owed by the Client at a rate of 5% per annum above the Reserve Bank of Australia’s cash rate target.
    7. Quote validity period: All quotes provided by Vokke will expire and no longer be valid 14 days from the date of issue.
  11. Confidential Information
    1. Disclosure: Each party (‘Receiving Party’) agrees:
      (a) not to disclose the Confidential Information of the other party (‘Disclosing Party’) to any third party;
      (b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
      (c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
    2. Exclusions: The obligations in clause 11 do not apply to Confidential Information that:
      (a) is required to be disclosed in order for the parties to comply with their obligations under this MSA;
      (b) is authorised to be disclosed by the Disclosing Party;
      (c) is in the public domain and/or is no longer confidential, except as a result of a breach of this MSA; or
      (d) must be disclosed by Law or by a regulatory authority.
    3. Urgent relief: Each party agrees that monetary damages may not be an adequate remedy for a breach of this clause 11. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 11.
    4. Reasonable safeguards: Each party will ensure that that party, and each member of that party’s Personnel, will take all reasonable steps to keep the other party’s Confidential Information secure including but not limited to by using the security measures and degree of care no less than that party applies to that party’s own confidential or proprietary information.
  12. Intellectual Property Rights
    1. Existing IP: As between the parties:
      (a) Vokke owns all Intellectual Property Rights in the Vokke Materials; and
      (b) the Client owns all Intellectual Property Rights in the Client Materials,and
      (c) nothing in this MSA constitutes a transfer or assignment of any Intellectual Property Rights in the Vokke Materials or the Client Materials.
    2. Licence to the Client of Vokke Materials, New Materials and Improvements: Vokke grants the Client a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Vokke Materials, the New Materials and Improvements that Vokke provides to Client, solely for the purposes for which they were developed and for the Client’s use and enjoyment of the Services, as contemplated by this MSA.
    3. New Materials and Improvements: As between the parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in Vokke upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in Vokke, the Client agrees to do all acts necessary or desirable to assure Vokke’s title to such rights.
    4. Client licence to Vokke to enable the provision of the Services: The Client grants Vokke a non-exclusive, royalty-free, revocable, worldwide, right and licence, to use the Client Materials solely for the purposes for which they were developed and for the performance of Vokke’s obligations under this MSA, as contemplated by this MSA.
    5. Feedback: Feedback will at all times vest, or remain vested, in Vokke (or, if applicable, Vokke’s third party service providers). To the extent that ownership of the Intellectual Property does not automatically vest in Vokke, the Client agrees to do all acts necessary or desirable to assure Vokke’s title to such rights. The Client agrees that Vokke may use Feedback in any manner which Vokke sees fit (including to develop new features) and no benefit will be due to the Client or any third party.
    6. Additional software licence terms: The Client must strictly comply with any software licence entered into between the parties and any breach of such software licence by the Client will be deemed to be a breach of a material provision of this MSA.
  13. Conditions of Use
    1. Conditions of use: The Client must not (unless authorised under this MSA):
      (a) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Services or any part of the Services or otherwise attempt to discover any part of the source code of the Services;
      (b) use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;
      (c) use the Services in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights;
      (d) publish, post, upload or otherwise transmit data that contains any viruses, ransomware, trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person;
      (e) use or knowingly permit the use of any security testing tools to probe, scan or attempt to penetrate or ascertain the security of the Services;
      (f) use the Services in a web-enabled form for the purposes of third party analysis or view via the internet or other external network access method;
      (g) rent the use of the Services to any third parties;
      (h) gain revenue, profit or benefit from the use of any trial Services;
      (i) take any action that may compromise or jeopardise Vokke’s Intellectual Property Rights in the Services or otherwise;
      (j) remove or deface any confidentiality, copyright or other proprietary notice placed on the Services or Documentation;
      (k) make any representations or warranties to any third parties that could be construed as being representations or warranties from Vokke in relation to the Services or any other matter;
      (l) use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing of the Services; or
      (m) do any other thing in relation to the Services specifically prohibited by Vokke in the Documentation or otherwise communicated by Vokke to the Client in writing as being prohibited.
    2. No transfer: Subject to clause 12, nothing in this MSA grants to the Client, or any member of the Client’s Personnel, any Intellectual Property Rights in respect of any Intellectual Property Rights of Vokke.
    3. Infringement: The Client will provide immediate written notice to Vokke if the Client becomes aware of any actual or threatened infringement of any Intellectual Property Rights of Vokke. The Client will provide all reasonable assistance to Vokke in relation to preventing any actual or threatened infringement of any Intellectual Property Rights of Vokke.
    4. Breach: The Client acknowledges:
      (a) the value of the Intellectual Property Rights is such that an award of damages or an account of profits might not be an adequate remedy for a breach of this clause 12; and
      (b) Vokke may, without having to prove any actual damage, take any action or seek any remedy including but not limited to seeking an injunction in relation to any actual or threatened breach of this clause 12.
    5. Analytics: Despite anything to the contrary in MSA or elsewhere, Vokke may monitor, analyse and compile statistical and performance information based on and/or related to the Client’s use of the Services (‘Analytics‘). The Client agrees that Vokke may make such Analytics publicly available, provided that it:
      (a) does not contain identifying information; and
      (b) is not compiled using a sample size small enough to make the underlying customer data identifiable.
      (c) Vokke and Vokke’s licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.
  14. Privacy
    1. If required by law, each party will comply with all obligations under the Privacy Act 1988 (Cth) at all times.
  15. Force Majeure
    1. If performance of this MSA or any obligation under this MSA is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (‘Force Majeure‘), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision will be suspended to the extent necessary by such event.  The term ‘Force Majeure’ includes without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, pandemics, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party must use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and must proceed to perform with reasonable speed whenever such causes are removed or ceased.  An act or omission will be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
  16. Warranties
    1. Power: Each party warrants that the party has the right, power, authority and entitlement to execute this MSA and perform that party’s obligations under this MSA.
    2. Conditions and warranties: To the extent permitted by law, Vokke excludes all express and implied conditions and warranties in relation to any goods and/or services except those conditions or warranties that cannot be excluded by law and Vokke’s liability under any such conditions or warranties is limited to, at Vokke’s option:
      (a) refunding the cost of the goods and/or services;
      (b) resupplying the goods and/or services; or
      (c) arranging to replace or repair the goods and/or the outcome of the services.
    3. High-risk activities: All goods and/or services provided by Vokke are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the products, software, or services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). Vokke expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
  17. Mandatory consumer law clause
    1. Definitions: In this MSA:
    2. ACL: The parties acknowledge that under the Australian Consumer Law and other similar legislation of Australian states and territories, certain statutory guarantees are conferred in relation to the supply of goods or services to a Consumer (‘Consumer Guarantees‘). Where the Client as a Consumer acquires goods and services under this MSA from Vokke as a supplier and:
      (a) the goods or services are PDH Goods or Services, the operation of the Consumer Guarantees cannot be, and are not in this MSA, excluded, restricted or modified; or
      (b) the goods or services are not PDH Goods or Services, Vokke limits its liability for a failure to comply with any Consumer Guarantee (other than: (a) a Consumer Guarantee as to title, encumbrances or undisturbed possession of goods conferred by the Australian Consumer Law; or (b) where to do so would otherwise cause all or part of this clause to be void) to, at Vokke’s option:
      (i) in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and
      (ii) in the case of services, resupplying the services or paying the cost of having the services resupplied.
    3. No exclusion or limitation: Despite anything to the contrary in this MSA or otherwise, Vokke does not exclude or limit the operation of the Consumer Guarantees under any other provision of this MSA in any other manner and the parties agree it is fair and reasonable in all the circumstances for Vokke’s liability to be so limited.
    4. Mandatory notification: Australian law requires Vokke to notify consumer purchasers of Vokke goods that: ‘Vokke’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Client is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Client is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.’
  18.  Liability
    1. Liability: Despite anything to the contrary and to the maximum extent permitted by Law:
      (a) a party’s liability for any Liability under this MSA will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party (or any of its Personnel);
      (b) neither party will be liable for any Consequential Loss; and
      (c) Vokke’s aggregate liability for any Liability arising from or in connection with this MSA will be limited to repaying the Client the amount of the Fees paid by the Client to Vokke in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates.
    2. Exclusions to Liability: Despite anything to the contrary, to the maximum extent permitted by law, Vokke will not be liable for, and the Client waives and releases Vokke from and against, any Liability, caused or contributed to by, arising from or connected with:
      (a) loss of, or damage to, any property or any injury to or loss to any person;
      (b) the Client’s Computing Environment;
      (c) the Client’s or the Client’s Personnel’s acts or omissions;
      (d) any use or application of the Services by a person or entity other than the Client, or other than as reasonably contemplated by this MSA;
      (e) any work, services, goods, materials or items which do not form part of the Services, or which have not been provided by Vokke;
      (f) any Third Party Applications;
      (g) the Services being unavailable, or any delay in Vokke providing the Services to the Client, for whatever reason and/or any event outside of Vokke’s reasonable control;
      (h) a fault or defect in any item of the Client’s equipment;
      (i) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge, problems with electrical power, electrical spike or any Force Majeure Event;
      (j) the use of any Services or Hardware for other than its intended purpose;
      (k) the use with or connection of any Hardware to items not approved by Vokke; and
      (l) the use of any Services or Hardware not in accordance with their instructions, normal wear and tear, and problems caused by use of parts and components not supplied by Vokke.
    3. Implied warranties: Vokke excludes all conditions and warranties implied by custom, law or statute except for the Consumer Guarantees. Except for the Consumer Guarantees, all material and work is provided to the Client without warranties of any kind, either express or implied and Vokke expressly disclaims all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    4. Harmful code and data integrity: Vokke does not guarantee that any file or program available for download or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. Vokke is not responsible for the integrity or existence of any data in the Client’s Computing Environment, network or any device controlled by the Client, the Client’s authorised users or the Client’ Personnel.
  19. Termination
    1. Termination for cause: This MSA or a relevant SOW will terminate immediately upon written notice if:
      (a) either party (or any of its Personnel) breaches a material provision of this MSA or that SOW and that breach has not been remedied within 10 Business Days of being notified by the other party; or
      (b) either party is unable to pay its debts as they fall due.
    2. What happens after termination: Upon expiry or termination of this MSA or a relevant SOW:
      (a) Vokke will immediately suspend or terminate providing the Services;
      (b) Vokke will be entitled to permanently delete all of the Client’s data within 30 days from the expiry or termination and will provide the Client with an opportunity to access and copy the Client’s data prior to that deletion;
      (c) Vokke will provide any further disengagement services as agreed and at Vokke’s then current rates;
      (d) the Client agrees that any payments made are not refundable;
      (e) the Client is to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to the Client, and all other amounts due and payable under this MSA or the relevant SOW;
      (f) pursuant to clause 19.1, the Client also agrees to pay Vokke additional costs arising from, or in connection with, such termination; and
      (g) the Client must immediately return (where possible) or delete or destroy (where not possible to return), any of Vokke’s property (including any of Vokke’s Confidential Information and Intellectual Property).
    3. Existing rights: Termination of this MSA or a SOW will not affect any rights or liabilities that a party has accrued under it.
  20. GST and Taxes
    1. All Fees exclude GST. The Client is responsible for all taxes, levies or duties imposed by taxing authorities in the Client’s jurisdiction, and the Client will be responsible for payment of them. Vokke has no responsibility to them on the Client’s behalf.
    2. Payable: If GST is payable on any supply made under this MSA, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this MSA and must be paid in addition to the consideration expressed elsewhere in this MSA, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
    3. Adjustment event: If an adjustment event arises in respect of any supply made under this MSA, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
    4. Reimbursement: If the recipient is required under this MSA to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
    5. Definitions: The terms ‘adjustment event’, ‘consideration’, ‘GST’, ‘input tax credit’, ‘recipient’, ‘supplier’, ‘supply’, ‘taxable supply’ and ‘tax invoice’ each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  21. General
    1. Overseas access: The Services may be accessed in Australia and overseas. Vokke makes no representation that the Services comply with the laws of any country outside of Australia. If the Client accesses the Services from outside Australia, the Client does so at the Client’s own risk and the Client is responsible for complying with the laws in the place the Client accesses the Services.
    2. Amendment: This MSA may only be amended by a written instrument executed by the parties.
    3. Assignment: A party must not assign or deal with the whole or any of its rights or obligations under this MSA without the prior written consent of the other party (such consent not to be unreasonably withheld).
    4. Counterparts: This MSA may be executed by any generally accepted and lawful form of digital signature including DocuSign and Adobe Sign, and in any number of counterparts, each of which will be considered an original for all purposes, and all of which when taken together will constitute one MSA binding on the parties, notwithstanding that both parties are not signatories to the original or the same counterpart.
    5. Dispute: A party may not commence court proceedings relating to any dispute, controversy or claim arising from or in connection with this MSA (including any question regarding its existence, validity or termination) (‘Dispute‘) without first meeting with a senior representative of the other party to seek in good faith to resolve the Dispute. Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
    6. Entire MSA: This MSA contains the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and MSAs, in respect of its subject matter.
    7. Survival: Clauses 11, 12, 17, 18, 19, 21 and 22 will survive termination or expiry of this MSA.
    8. Exclusivity: The Services will be provided to the Client on a non-exclusive basis.
    9. Further assurances: Each party must promptly do all things and execute all further instruments necessary to give full force and effect to this MSA and their obligations under it.
    10. Governing law: This MSA is governed by the laws of Victoria. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
    11. Notices: Any notice given under this MSA must be in writing addressed to the relevant address last notified by the recipient to the parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 4 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
    12. Publicity: The Client agrees that Vokke may advertise or publicise the broad nature of Vokke’s provision of the Services to the Client, including on Vokke’s Platform or in Vokke’s promotional material.
    13. Relationship of Parties: This MSA is not intended to create a partnership, joint venture, employment or agency relationship between the parties.
    14. Severance: If a provision of this MSA is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this MSA without affecting the validity or enforceability of the remainder of that provision or the other provisions.
    15. Vokke Personnel and Subcontracting: Vokke may engage subcontractors to perform the Services on Vokke’s behalf. Vokke will (in its sole discretion) allocate Vokke Personnel to each engagement.
    16. Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to this MSA does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
    17. Email and SMS: The Client agrees that Vokke may send and receive emails and SMSs to and from the Client. The Client releases Vokke from any Liability Vokke may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to the Client’s system or any files by a transfer.
  22. Definitions and interpretation
    1. Definitions: In this MSA, unless the context otherwise requires, capitalised terms have the meanings given to them in this MSA, a SOW and Solutions Schedules, and:
      ‘Approval‘ means an approval, licence, authorisation, permit, consent, permission or certificate;
      ‘Australian Consumer Law‘ has the meaning given to that term in Section 4 of the Competition and Consumer Act 2010 (Cth);
      ‘Business Day‘ means a day on which banks are open for general bank business in Victoria, excluding Saturdays, Sundays and public holidays;
      ‘Claim‘ means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
      ‘Client Computing Environment‘ means the Client’s computing environment including all hardware, software, information technology and telecommunications services and Systems;
      ‘Client Materials‘ means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of the Client or the Client’s Personnel before the Start Date and/or developed by or on behalf of the Client or the Client’s Personnel independently of this MSA.
      (a) is disclosed to the Receiving Party in connection with this MSA at any time;
      (b) is prepared or produced under or in connection with this MSA at any time;
      (c) relates to the Disclosing Party’s business, assets or affairs; or
      (d) relates to the subject matter of, this MSA, of and/or any transactions contemplated by this MSA,’Confidential Information‘ includes information which: whether or not such information or documentation is reduced to a tangible form or marked in writing as ‘confidential’, and howsoever the Receiving Party receives that information;
      ‘Consequential Loss‘ includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
      ‘Consumer‘ has the meaning given to that term in Section 3 of the Australian Consumer Law;
      ‘Consumer Guarantees’ is defined in clause 17.1;
      ‘Deliverables‘ means the results that Vokke will provide to you, through supply of the Services, as agreed in a SOW;
      ‘Documentation‘ means the technical manuals, user manuals, operating manuals, and any other documentation (including any revisions, replacements, amendments or additions), as set out in a SOW;
      ‘End Date‘ means the end date specified in a SOW;
      ‘Feedback‘ means any idea, suggestion, recommendation or request by the Client or any of the Client’s Personnel, or the Client’s customers, whether made verbally, in writing, directly or indirectly, in connection with the Services;
      ‘Fees‘ means the fees for the provision of the Services as set out in a SOW;
      ‘Hardware‘ means any computer hardware, equipment and any other similar items supplied by Vokke to the Client as part of or incidental to the Services (whether virtual or otherwise);
      ‘Improvements‘ means any development, modification, adaptation or improvement of Vokke Materials or any New Materials made by or on behalf of either party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either party during the Term.
      ‘Insolvency Event‘ means any of the following events or any analogous event:
      (a) a party disposes of the whole or any part of the party’s assets, operations or business other than in the ordinary course of business;
      (b) a party ceases, or threatens to cease, carrying on business;
      (c) a party is unable to pay the party’s debts as the debts fall due;
      (d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the party’s assets, operations or business;
      (e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a party’s creditors or any class of a party’s creditors; or
      (f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a party’s assets, operations or business;
      ‘Intellectual Property‘ means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
      Intellectual Property Rights‘ means any and all intellectual property rights, whether existing now or in the future, anywhere in the world, and the subject matter of such rights, including the following:
      (a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and
      (b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under a Law, at common law or in equity.
      ‘Laws‘ means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant party in connection with this MSA or the provision of the Platform Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
      ‘Liability‘ means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to this MSA or otherwise;
      ‘MSA‘ is defined in clause 2.2;
      ‘PDH Goods or Services‘ means goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;
      ‘Personnel‘ means, in respect of a party, any of its employees, consultants, suppliers, subcontractors or agents, but in relation to the Client, ‘subcontractors’ does not include Vokke or Vokke’s Personnel;
      ‘New Materials‘ means all Intellectual Property developed, adapted, modified or created by or on behalf of Vokke or the Client or any of the Client’s or the Client’s Personnel in connection with this MSA or the provision of the Services, whether before or after the date of this MSA;
      ‘Services‘ means the services, the Deliverables and the Documentation, as set out in a SOW;
      ‘Start Date‘ means the start date specified in a SOW;
      ‘Statement of Work‘ or ‘SOW‘ refers to a statement of work in the form as provided by Vokke which is signed by the parties and forms a binding agreement between the parties;
      ‘Solutions Schedule‘ means the additional terms that only apply to a specific Service as set out at www.vokke.com.au/legal;
      ‘System‘ means all hardware, software, networks and other systems used by a party from time to time;
      ‘Third Party Applications‘ means third parties or any products, software or services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;
      ‘Variation‘ means a variation to any SOW (including but not limited to a variation to the Services, Deliverables, timing, or any other part of a SOW);
      ‘Variation Cost Proposal‘ means the costs proposed by Vokke, and details any other impacts, to effect a Variation; and
      ‘Variation Form‘ means the form as provided by Vokke.
      ‘Vokke Materials‘ means all work, models, processes, technologies, strategies, materials, information, documentation and services that Vokke may provide to the Client under this MSA, and which may contain material which is owned by or licensed to Vokke, and is protected by Australian and international laws.
    2. Interpretation: In this MSA, unless the context otherwise requires:
      (a) a reference to this MSA or any other document includes the document, all schedules, all attachments and all annexures as novated, amended, supplemented, varied or replaced from time to time;
      (b) a reference to any legislation or Law includes subordinate legislation or Law and all amendments, consolidations, replacements or re-enactments from time to time;
      (c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
      (d) no rule of construction will apply to the disadvantage of one party on the basis that that party put forward the documents comprising this MSA or any of them;
      (e) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
      (f) a reference to a covenant, obligation or MSA of two or more persons binds or benefits them jointly and severally;
      (g) a reference to time is to local time in Victoria; and
      (h) a reference to $ or dollars refers to the currency of Australia from time to time.

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