Master Services Agreement

1.1 Definitions

In the Agreement:

Access Fees means the recurring fees payable to Tanda by the Client for the software licences granted under this Agreement;

Active Profile means a Profile that has been active, as designated on the Accounts & Billing page within the Tanda Web Portal;

Additional Products or Services has the meaning given to that term in clause 5.2(b).

Advance Payment has the meaning in clause 8.4(a).

Agreement has the meaning in clause 2.1 (Formation and composition).

Agreement Details means:

1. the Accounts & Billing page of the Client's Profile, which sets out the commercial details of the Agreement; and/or
2. any other document or form Tanda accepts as the Agreement Details from time to time.

Associated Entity means any entity that is an associated entity within the meaning of that term in section 50AAA of the Corporations Act.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised Officer of a party which is a corporation means:

1. an employee of the party whose title contains either of the words Director or Manager;
2. a person performing the function of any of them;
3. a solicitor acting on behalf of the party; 
4. legal officer or legal advisor of the Client; or
5. a person appointed by the party to act as an Authorised Officer for the purposes of the Agreement and notified to the others.

Business Day means:

1. if determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
2. for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, Liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:

1. it is present, unascertained, immediate, future or contingent;
2. it is based in contract, tort, statute or otherwise; or
3. it involves a third party or a party to the Agreement.

Client Data means the data supplied by the Client, its Personnel or its End Users, and used in connection with the Products and Services, including Outputs but excluding Tanda Data.

Client IP means the Intellectual Property Rights of the Client which are created, and owned, by the Client independently of the Agreement.

Commencement Date has the meaning set out in the Agreement Details.

Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), means any information which is disclosed in any form, whether before or after the Commencement Date, by the Discloser and which:

1. is by its nature confidential;
2. is designated as confidential by the Discloser;
3. the recipient knows or ought to know is confidential; or
4. information concerning the business, assets, liabilities, financial position, customers, pricing policies, marketing strategies, Intellectual Property Rights or proposed business plans of the Discloser; 

but excluding any such information:

5. which is publicly known;
6. which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
7. which is developed independently by the other party without reliance on any of the confidential information.

Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into the Agreement, including any of the above types of loss arising from an interruption to a business or activity.

Corporations Act means the Corporations Act 2001 (Cth).

1. Electronic Communication means communication of information in the form of data, text or images by guided or unguided electromagnetic energy.

Employee has its ordinary meaning, but also includes independent contractors.

End User means any individual that accesses or uses the Products or Services, including through a Profile.

Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under the Agreement.  Such circumstances include:

1. adverse changes in government regulations;
2. any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;
3. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;
4. strikes or industrial disputes; and
5. acts or omissions of any third-party network providers (such as internet, telephony or power provider).

Fees means the fees payable by the Client for the provision of the Products and Services, as specified in the Agreement Details and calculated at the rates set out in at https://my.tanda.co/account/, including the Access Fees.

First Payment Date means the earlier of:

1. the date the Client provides its credit card or direct debit details to Tanda and;
2. 30 days from the Commencement Date.

Further Term has the meaning given to that term in clause 4(b).

Government Body means:

1. any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
2. any public authority constituted by or under a law of any country or political subdivision of any country; and
3. any person deriving a power directly or indirectly from any other Government Body.

Gross Negligence means an act or failure to act which, in addition to constituting negligence, was in reckless disregard or wanton indifference to the consequences. 

GST means GST as that term is defined in the GST Law, and any interest, penalties, fines or expenses relating to such GST.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or associated Commonwealth legislation, regulations and publicly-available rulings.

Indemnified Parties means Tanda and its Personnel and Related Entities or Associated Entities and any of their Personnel.

Insolvency Event means:

1. in relation to any corporation:
   
   1. its liquidation;
   2. an external administrator is appointed in respect of the corporation or any of its property;
   3. the corporation ceases or threatens to cease to carry on its business;
   4. the corporation being deemed to be, or stating that it is, unable to pay its debts when they fall due;
   5. any other ground for liquidation or the appointment of an external administrator occurs in relation to the corporation;
   6. the corporation resolves to enter into liquidation; or
   7. an application being made which is not dismissed or withdrawn within ten Business Days for an order, resolution being passed or proposed, a meeting being convened or any other action being taken to cause or consider anything described in paragraphs (1) to (6) (inclusive) above;
2. in relation to an individual, that person becoming an insolvent under administration as defined in section 9 of the Corporations Act; and
3. in relation to any person, anything analogous to or having a similar effect to anything described above in this definition under the law of any relevant jurisdiction.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Initial Term has the meaning given to that term in clause 4(a).

Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:

1. present or future; or
2. State, federal or otherwise.

Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.

Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.

Material means property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.

Minimum Profile Count means the minimum number of Active Profiles allocated for each calendar month of the Term (as specified in the Agreement Details) that will be charged the Access Fee.  

MSA means this TANDA Standard Master Services Agreement.

Output means reports, pdf, templates, or documentation generated by or on behalf of the Client as a result of the Client’s use of the Products and Services, excluding Tanda Data. 

Personal Information has the meaning given in the Privacy Law.

Personnel means in relation to a party, any Employee, officer, or agent of that party.

Privacy Law means the Privacy Act 1988 (Cth).

Products means products provided to the Client by Tanda as specified in the Agreement Details.

Profile means a user profile listed in the Tanda Web Portal, but excludes any profile that is on the deactivated staff list.

Related Entity means a person which is a related entity within the meaning of that term in section 9 of the Corporations Act.

Resolution Institute means the Resolution Institute (ABN 69 008 651 232) or, in the event that the Resolution Institute ceases to exist or to provide mediation services, a professional dispute resolution organisation of equivalent standing.

Schedule means a document (or documents) containing terms applicable to the relevant Products and Services, as identified in the Agreement Details and incorporated into the Agreement under clause 2.1. 

Services means services provided to the Client by Tanda as specified in the Agreement Details.

Tanda Data means all data which:

1. is in, or used in, aggregated and de-identified form; or 
2. is held by, or disclosed to, Tanda independently of the Agreement.

Tanda IP means all Intellectual Property Rights created, owned or licensed by Tanda, including the Tanda Data.

Tanda Web Portal means the Client portal accessible via the website available at tanda.com.au;

Tax means any present or future tax, levy, deduction, impost, withholding, charge or duty which is levied or imposed by any Government Body together with any interest, penalty or fine on those amounts.

Tax Invoice means a “tax invoice” compliant with the requirements of the GST Law.

Term means the total duration of the Agreement, as described in clause 4.

Where a term used in the Agreement appears in bold type in the Agreement Details, that term has the meaning shown opposite it in the Agreement Details.

1.2 Interpretation

1. Unless the contrary intention appears, a reference in the Agreement to:
   
   1. the Agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
   2. one gender includes the others;
   3. the singular includes the plural and the plural includes the singular;
   4. a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
   5. an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, the Agreement and a reference to the Agreement includes any schedule or attachment;
   6. a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
   7. any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
   8. money is to Australian dollars, unless otherwise stated; and
   9. a time is a reference to Brisbane time unless otherwise specified.
2. The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
3. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
4. Headings and any table of contents or index are for convenience only and do not affect the interpretation of the Agreement.
5. A provision of the Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.

1.3 Business Days

1. If anything under the Agreement must be done on a day that is not a Business Day, it must be done instead on the next Business Day.

6. If an act is required to be done on a particular day, it must be done before 5.00pm on that day or it will be considered to have been done on the following day.

1.4 Parties

1. If a party consists of more than one person, the Agreement binds each of them separately and any two or more of them jointly.
2. An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
3. An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.

2.1 Formation and composition

The following are comprised in the agreement:

1. this MSA; 
2. the Agreement Details; 
3. the Schedules; and
4. any other document forming part of the agreement as agreed to and executed in writing by the parties,

together the “Agreement”.

2.2 Precedence for the Agreement

In the event of any conflict or inconsistency between one or more of the documents, for interpretation, the following will be the order of precedence (highest to lowest):

1. the relevant Schedule;
2. the Agreement Details; 
3. this MSA; and
4. any other document forming part of the Agreement as agreed to and executed in writing by the parties.

1. An amendment or variation to the Agreement or any Schedule is not effective unless it is in writing and signed by the parties.
2. Notwithstanding clause 3(a), Tanda may vary the Agreement at any time during the Term, provided that:
   
   1. Tanda provides the Client notice via the Tanda Web Portal or to the Client's Address Details, at least 60 days prior to the end of the Initial Term or the then-current Further Term; and
   2. any variations to the Agreement are not effective until the commencement of the next Further Term. 
3. If the Client does not agree with any proposed variations notified to the Client, the Client may terminate the Agreement in accordance with clause 16.2, otherwise the Client will be deemed to accept the proposed variations and agree to be bound to the varied Agreement from the commencement of the next Further Term.

1. The term of the Agreement commences on the Commencement Date and continues for the initial period specified in the Agreement Details, unless otherwise terminated in accordance with clause 16.1 (Initial Term).
2. At the end of the Initial Term or the then-current Further Term (as the case may be), the Agreement will automatically and continuously renew for the same period as the Initial Term on the terms and conditions of the Agreement, unless the Agreement is terminated in accordance clause 16.1 or 16.2, (Further Term).

5.1 Relationship

The parties’ relationship is one of principal and independent contractor, not employer and employee, agency or partnership.

5.2 Scope

1. The parties agree that the scope of Products and Services to be provided to the Client is as set out in the applicable Schedule.

2. If the Client wishes to procure additional products or services beyond what is captured under this Agreement (Additional Products or Services), it may enter into a further agreement or update the Agreement Details to include the Additional Products or Services as permitted within the Tanda Web Portal.
3. If the Client updates the Agreement Details pursuant to clause 5.2(b):
   
   1. notwithstanding clause 3(a), the Agreement is automatically and immediately varied to reflect the updated Agreement Details and to incorporate the Schedule applicable to the Additional Product or Service; and
   2. Tanda will promptly provide the Client access to the Additional Product or Service.
4. The Fees applicable to the Additional Product or Service are billed as follows:
   
   1. if the Client has selected a monthly invoicing schedule, the Fees applicable to the Additional Product or Service will initially be added to the Tax Invoice issued in the next billing period for payment by the Client, and then be billed and charged in accordance with clause 8; or
   2. if the Client has selected an Advance Payment arrangement, Tanda will issue the Client a Tax Invoice for the Fees applicable to the Additional Product or Service (that are to be calculated on a pro-rated basis and with reference to the number of Profiles for which the Client has paid in advance), after which such Fees will be billed and charged in accordance with clause 8.

5.3 Outside scope 

Any products or services provided by Tanda to the Client, which:

1. are not expressly included in the Agreement;
2. are performed as a result of a deficiency in the Client’s performance of its obligations under the Agreement; or
3. are necessary to comply with a change in Law not anticipated by the Agreement, 

will be charged in accordance with the rates and fees set out in the applicable Agreement Details or as reasonably determined by Tanda and communicated to the Client in writing.

5.4 Subcontractors

1. The Client acknowledges and agrees that Tanda may delegate the performance of any of the Services to any of its subcontractors, at its discretion, which may change from time to time.
2. Tanda remains responsible to the Client for the performance of Tanda’s obligations under the Agreement, and it must contractually oblige its subcontractors to confidentiality obligations which are at least as onerous as the obligations of confidentiality in clause 12 (Confidential Information).

5.5 General obligations

In providing the Products and Services during the Term, Tanda will act with all due care, skill and diligence.

In accessing and using the Products and Services, the Client acknowledges and agrees that:

1. any statement, information or advice provided by Tanda, or Output generated via use of Tanda’s Products and Services, is general in nature and does not constitute legal, financial, accounting or employment advice;
2. except where expressly provided under this Agreement, Tanda disclaims all representations, warranties, guarantees or representations that:
   
   1. the Products and Services, or any statement information or advice provided by Tanda will ensure the Client’s compliance with its obligations as an employer under the applicable Laws (including without limitation in respect of calculating Employee entitlements); 
   2. the Products and Services are free from any errors or defects; and
   3. the Products and Services are accurate or complete.

8.1 Calculation of Access Fees 

1. The Access Fee is calculated by reference to:
   
   1. the number of Active Profiles in the prior calendar month;
   2. if the Client has opted for an Advance Payment arrangement, the Minimum Profile Count, plus the number of Active Profiles attributed to the Client's account within each calendar month during the Term in excess of the Minimum Profile Count; 
   3. the relevant rates set out in the Agreement Details or (if none specified) the rates available at https://my.tanda.co/account/; and
   4. any other variables or processes specified in the relevant Schedule.
2. Tanda will, at the beginning of each billing period, determine the Access Fee in accordance with clause 8.1 above and the Access Fee will be automatically varied accordingly. 

8.2 Payment of Fees

1. The Client will pay the Fees in consideration of the Products and Services. 
2. Subject to clause 8.3(a), Tanda will issue the Client with a Tax Invoice for, and the Client will pay, the Fees payable under the Agreement initially on the First Payment Date, after which the Client must continue to pay the Fees in accordance with the invoicing schedule set out in the Agreement Details or in the Tanda Web Portal.
3. Unless otherwise specified in the Agreement Details, all Tax Invoices must be paid within 14 days of date the relevant invoice is issued.

8.3 Payment by credit card or direct debit

1. Where the Client has elected to pay the Fees by credit card or direct debit by providing its credit card or direct debit account details to Tanda, Tanda will automatically charge the Fees to the credit card or direct debit account provided initially on the First Payment Date and then in accordance with the invoicing schedule set out in Agreement Details or Tanda Web Portal. 
2. If the Client disputes the amount of Fees charged to the Client’s credit card or direct debit account, the Client must notify Tanda in writing within seven days of such charge.

8.4 Advance Payment

1. The Client may, by notification to Tanda any time from the First Payment Date onwards, opt to pay fixed discounted Fees 12 months in advance, in lieu of the initial invoicing schedule described at clause 8.2(b) (Advance Payment).
2. The Advance Payment must be paid in full by the Client to Tanda within 7 days of a Tax Invoice being provided to the Client.
3. Notwithstanding any Advance Payment, Tanda may issue the Client a Tax Invoice or charge the Client for the applicable Fees, at any time during the Term, if Tanda determines that the number of Active Profiles exceeds the number allocated to the Client at the beginning of the Term or the Minimum Profile Count.
4. If the Client opts to make an Advance Payment, the Client acknowledges that no refund will be payable to the Client during the 12 months from the date of payment of the Advance Payment if:
   
   1. the Client terminates the Agreement in accordance with clause 16.2(a);
   2. the Client cancels their subscription to any of the Products or Services for convenience and as permitted under the relevant Schedule; or 
   3. the number of Profiles drops below the level used to calculate the Advance Payment fee.

8.5 Late or non-payment of invoices

If the Client fails to pay the Fees within 14 days of receipt of the Tax Invoice referred to in clause 5.2(d)(2), 8.2(b) or the automatic charge described in clause 8.3(a) is rejected (as the case may be), Tanda will make all reasonable efforts to notify the Client of the relevant non-payment), and subsequently may do any one or more of the following:

1. restrict or suspend the Products or Services in accordance with clause 6.1 (Suspension); or
2. terminate the Agreement, as permitted pursuant to clause 16.1.

8.6 Payment disputes

1. If there is bona fide dispute about whether a Fee, credit, rebate, refund or other amount contemplated by the Agreement is payable or available: 
   
   1. the Client must notify Tanda within 10 Business Days from the date of receipt of the Tax Invoice or the account charge, of the details and nature of the dispute; 
   2. the Client may withhold the amount in dispute until resolution of the dispute; 
   3. the Client must pay Tanda the portion of the invoiced amounts not in dispute; 
   4. the parties must continue to perform their obligations under the Agreement; and 
   5. appropriate Personnel from both parties with authority to resolve the dispute must meet within 14 days of the date of the Client’s notice and make a bona fide attempt to settle the disputed amount, failing which the dispute will be referred to the dispute resolution process set out in clause 21 (Dispute resolution).

9.1 General obligations

The Client will (in the manner permitted by the Agreement):

1. provide Tanda with all information and co-operation reasonably necessary to enable Tanda to provide the Products and Services and comply with its obligations under the Agreement;
2. (where applicable) take reasonable steps to ensure that End Users:
   
   1. are suitably trained on how to use the Products and Services;
   2. employ and implement the correct use of the Products and Services in accordance with any manuals or documentation supplied with the Products and Services; and
   3. comply with any other reasonable directions of Tanda in relation to the use of the Products and Services;
3. provide Tanda with all reasonable information and (if applicable) access to its computer or other device and network systems in order for Tanda to provide the Products and Services in accordance with the terms of the Agreement;
4. promptly notify Tanda of any event or incidents that is likely to or will impact on access and use of the Products and Services, the provision of the Products and Services or any other obligation of Tanda; 
5. comply with all of Tanda’s reasonable directions provided from time to time in relation to the use of the Products and Services; and
6. perform its duties under the Agreement with care, skill and diligence, and in accordance with all applicable Laws.

9.2 Use restrictions

Unless otherwise expressly authorised in writing by Tanda (including as permitted in a Schedule), the Client will not (and must not permit or procure any End Users, its Personnel or subcontractors to):

1. reverse engineer or decompile the Products or Services;
2. copy, modify, reproduce, make error corrections to or otherwise modify or adapt the Products or Services to create any derivative works based on the Products or Services;
3. use, or permit, the Products or Services to be accessed or used in any way other than in a manner expressly permitted by the Agreement;
4. attempt to gain unauthorised access to any Materials other than those which the Client has been given express permission to access under the Agreement;
5. challenge the validity of any Intellectual Property Rights of Tanda (or an Associated Entity of Tanda); or
6. permit the Products or Services to be accessed in any unauthorised way;
7. re-sell, lease, redistribute or commercialise any part of the Products or Services; or
8. introduce or incorporate any malicious code, virus, trojan, worm, ransomware, spyware or any other harmful material into the Products or Services.

9.3 Mutual obligations

Each party must promptly inform the other party of any unauthorised use of the Intellectual Property Rights that the first party is, or becomes, reasonably aware of.

10.1 Ownership – Tanda IP

1. Ownership of Tanda IP is not modified by the Agreement. 
2. The Intellectual Property Rights in Tanda IP remain vested in Tanda.

10.2 Ownership – Client IP and data

1. Ownership of Client IP is not modified by the Agreement.
2. The Intellectual Property Rights in Client IP remain vested in the Client.
3. The Client grants to Tanda a non-exclusive, non-transferable, worldwide, royalty free licence to use Client IP, Client Data (to the extent the Client may have any rights in relation to such Client Data) and Materials provided to Tanda for the purposes of performing obligations under the Agreement, for the Term.
4. For clarity, the Client and Tanda acknowledge that Tanda Data may incorporate or be derived, at least in part, from Client Data, and accordingly, while the Customer shall have exclusive title and ownership over the Client Data, Tanda shall retain exclusive title and ownership to the Tanda Data.

10.3 Prohibited activities

Unless otherwise expressly authorised in writing by Tanda, the Client will not (and must not permit or procure its Personnel or subcontractors to):

1. do or permit any other act which, in the best of its information, knowledge and belief, it considers infringes Tanda’s Intellectual Property Rights;
2. do or permit an act that uses the Products or Services in a way that could infringe a third party’s Intellectual Property Rights; or
3. use the Products or Services in any way that could damage the reputation of Tanda.

1. Tanda must have in place at all times during the Term, a data back-up plan consistent with good industry practice in Australia (which will be provided to the Client on request) and Tanda must keep back-ups of the Client Data in accordance with that plan for the duration of the Term.
2. The Client acknowledges and agrees that Tanda may hold Client Data in its systems for the duration of the Term and post-termination or expiry of the Agreement, but is not obligated to store or maintain Client Data beyond the date of termination or expiry.

12.1 Non-disclosure

1. Each party must keep the other party’s Confidential Information, confidential.
2. A party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
3. Each party must take all reasonable steps to ensure that its Personnel (or subcontractors) engaged for the purposes of the Agreement, do not make public or disclose the other party's Confidential Information.

12.2 Return of Confidential Information

1. Except as expressly permitted under the Agreement, a party who has received Confidential Information from the other party under the Agreement must, on the request of the other party and as directed by that party: 
   
   1. immediately deliver all documents or other Materials containing Confidential Information of the disclosing part, and in the case of the Client, Client Data in a form suitable and accessible to the Client, which are in the recipient party’s possession, power or control, or in the possession, power or control of persons who have received Confidential Information from it (Confidential Material); or 
   2. destroy all Confidential Material (and certify the destruction to that party) as soon as possible.
2. Clause 12.2(a) does not apply to the delivery up or destruction of the Confidential Materials: 
   
   1. to the extent that the recipient party keeps a copy for the purposes of archive (including electronic backup data storage), professional indemnity insurance, legal advice or legal compliance, provided that the recipient party keeping material on that basis must (on request made by the disclosing party at any time) inform the disclosing party of the recipient party’s retention arrangements and promptly give written assurances as the disclosing party reasonably requires regarding protection against unauthorised use or disclosure (including as to systems security); and 
   2. of the Client which Tanda requires in order to comply with its obligations under the Agreement, which upon termination or expiry of such obligations must then be delivered or destroyed in accordance with this clause 12.2 (Return of Confidential Information).

12.3 Acknowledgement as to types of remedy

Each party acknowledges and accepts that:

1. the other party would suffer financial and other loss and damage if its Confidential Information was disclosed to any other person or used for any purpose other than as permitted by the Agreement and accordingly that monetary damages may be an insufficient remedy; and 
2. in addition to any other remedy, which may be available in law or equity, the other party is entitled to injunctive relief to prevent a breach of any of clause 12.1 (Non-disclosure) and to compel specific performance of clause 12.1 (Non-disclosure).

12.4 Survival

This clause survives the termination or expiration of the Agreement for the period set forth in clause 12.2 (Return of Confidential Information).

13.1 Privacy Laws

1. Each party agrees to comply with all Privacy Laws in relation to any and all Personal Information that it collects from the other party in connection with the Agreement.
2. The Client warrants that it has sought the necessary consent required by Privacy Laws, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) from all individuals whose Personal Information it causes to be disclosed to Tanda or otherwise held in connection with the Products or Services, to enable Tanda (or its Personnel and its related parties):
   
   1. (where applicable) to collect such Personal Information using the Products or Services; 
   2. to hold and use that Personal Information for the purposes of Tanda performing its obligations under the Agreement; and
   3. to directly contact individuals (including by email and phone) using the Personal Information held by Tanda in connection with clauses 13.1(b)(1) and 13.1(b)(2) above.
3. Within a reasonable period of becoming aware of an Eligible Data Breach (as defined under the Privacy Laws) of Client Data has occurred, Tanda will provide written notice of such breach and any material information available to it to the Client. Tanda agrees to provide reasonable assistance required by the Client, if any, to investigate such Eligible Data Breach.

13.2 Security

The Client must: 

1. use its best endeavours to assist Tanda in preventing the introduction of any computer program virus or other code that is harmful, destructive, disabling or which assist in or enables theft or alteration of Client Data, including by following all reasonable instructions by Tanda to enhance the security of the systems used by the Client; and
2. use current and updated commercially available virus detection software.

14.1 Exclusion of liability

1. To the extent permitted by Law, in no event will Tanda be liable to the Client for Consequential Loss even if Tanda has been made aware of the possibility of such Consequential Loss (including any Liability in connection with backups (or lack thereof) of Client Data) prior to entering into the Agreement.
2. The Client agrees that Tanda will have no Liability for Claims made by third parties arising out of or in connection with the Agreement, including on account of Claims made by Employees, Claims made through or for Employees or Claims made by any Government Body.

14.2 Consumer guarantees

1. Tanda’s Products and Services may come with guarantees that cannot be excluded under the Australian Consumer Law. 
2. The following applies where the Australian Consumer Law applies to the provision of any products under the Agreement:
   
   1. Tanda’s products come with guarantees that cannot be excluded under the Australian Consumer Law.
   2. The Client is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.
   3. The Client is also entitled to have the products repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.
3. The following applies where the Australian Consumer Law applies to the provision of any services under the Agreement:
   
   1. Tanda’s services come with guarantees that cannot be excluded under the Australian Consumer Law.
   2. For major failures with the service, the Client is entitled:
      
      1. to cancel the service contract with Tanda; and
      2. to a refund for the unused portion of, or compensation for its reduced value.
   3. The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage.
   4. If the failure does not amount to a major failure, the Client is entitled to have the problems with the service rectified in a reasonable time and, if this is not done, to cancel the contract and obtain a refund of any unused portion of the contract.

14.3 Implied terms

1. To the full extent permitted by Law, any term which would otherwise be implied into the Agreement is excluded.
2. In the event any Law implies or imposes terms into this deed which cannot be lawfully excluded, such terms will apply, save that the liability of Tanda for breach of any such term will be limited in accordance with clause 14.4(a).

14.4 Limitation of liability

Re-performance

1. To the extent Tanda is found Liable in connection with the Agreement, its Liability shall be limited (at the option of Tanda) to any one or more of the following: 
   
   1. re-supplying products or services to which the Liability relates or the supply of equivalent products or services; or
   2. reimbursing the Client (subject to clause 14.4(b) for paying someone else to supply the products or services which the Liability relates.

Liability cap

1. To the extent that Tanda is Liable in connection with the Agreement (whether in contract, under a right of indemnity, tort or statute), then Tanda’s cumulative Liability in the aggregate (to the fullest extent permitted by law) shall in no event exceed the sum of the Fees paid or payable by the Client to Tanda in respect of the Product or Service to which the Liability relates, during the Initial Term or then-current Further Term in which the Liability first arose.

15.1 Client indemnity

The Client indemnifies the Indemnified Parties, and will keep indemnified and hold the Indemnified Parties harmless, against any:

1. Claims against the Indemnified Parties; or
2. Loss suffered by the Indemnified Parties,

arising from: 

3. error, inconsistency or failure: 
   
   1. in Client Data or Outputs; or
   2. in the Client’s instructions to Tanda or use of the Products or Services; 
4. any contravention (or alleged contravention) of Law by the Client (including any related fines or penalties); 
5. any investigation or determination by a Government Body or regulatory authority relating to the payment of remuneration, superannuation, entitlements or awards of the Client's Personnel or the Client's employment of its Personnel; 
6. any fraud or wilful misconduct of the Client, or their Personnel; 
7. any failure by the Client or the Client's Personnel to verify the accuracy of the Products, Services or Outputs;
8. any Claims made by the Client's Personnel regarding their remuneration, superannuation contributions, entitlements, awards or any other matters in relation to their employment with the Client;
9. the introduction or incorporation of any malicious code, virus, trojan, worm, ransomware, spyware or any other harmful material into the Products or Services by the Client or Client's Personnel (whether intentionally or due to negligence); and 
10. any damage to Tanda's (or any of the other Indemnified Parties') reputation or goodwill caused by:
    
    1. the Client's negligent or fraudulent use of the Products or Services;
    2. from any public association between Tanda and the Client; or
    3. the Client's failure to comply with employment, superannuation or tax Laws where such non-compliance was not caused by the Products.

15.2 Tanda indemnity

Tanda will indemnify the Client and will keep indemnified and hold the Client harmless, against Loss arising from a final judgment or settlement against the Client directly attributable to the Gross Negligence of Tanda in supplying the Products and Services.

16.1 Termination for cause

Either party (First Party) may terminate the Agreement immediately by written notice upon the occurrence of one of the following events:

1. if the other party is in breach of the Agreement and that other party has failed to remedy the breach within 1 calendar month of a written notice to it from the First Party, specifying the breach and requiring it to be remedied;
2. if the other party is in breach of the Agreement and that breach is not capable of remedy, as reasonably determined by the First Party; or
3. an Insolvency Event occurs in respect of the other party.

16.2 Termination by Client 

1. The Client may terminate the Agreement for any reason by providing at least 30 days’ written notice prior to the expiry of the Initial Term or the then-current Further Term. 
2. If the Agreement is terminated in accordance with clause 16.2(a), the termination only takes effect at the expiry of the Initial Term or the then-current Further Term.

16.3 No prejudice of rights

Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.

17.1 Consequences of termination or expiration

Upon termination or expiration of the Agreement:

1. Tanda will cease provision of the Products and Services; 
2. all Schedules terminate immediately;
3. Tanda is entitled to retain all pre-paid Fees (whether used or unused);
4. the licence granted to Tanda under 10.2(c) terminates;
5. all monies owing under the Agreement become immediately payable and due; and
6. where applicable, Tanda will make the Client Data available to the Client for download (in the format nominated by Tanda) for 30 days post-termination or expiration of the Agreement.

17.2 Client acknowledgement

The Client acknowledges and agrees that any pre-paid Fees retained by Tanda upon termination of the Agreement are deemed a reasonable pre-estimate of the likely losses incurred by Tanda as a result of the early termination of the Agreement.

17.3 Survival

The following clauses survive termination or expiration of the Agreement: clause 12 (Confidential Information); 14 (Liability); 15 (Indemnity); this clause 17; 20 (Governing law and jurisdiction); and 21 (Dispute resolution).

18.1 GST exclusive

Unless expressly stated to the contrary all amounts expressed in the Agreement are exclusive of GST.

18.2 Recipient to pay Supplier

2. If a party (the Supplier) is obliged under the GST Law to pay an amount of GST for a taxable supply made by the Supplier to another party (the Recipient) under the Agreement, the Recipient must pay the Supplier an amount equal to the GST payable on the supply by the Supplier.
3. The Recipient must pay the amount referred to in this clause 18.2 (Recipient to pay Supplier) and any interests, penalties, fines or expenses relating to the GST, in addition to and at the same time as the consideration otherwise payable by the Recipient for the supply.

18.3 Tax invoice

If requested by the Recipient, the Supplier must provide the Recipient with a Tax Invoice on or before payment of the amounts required by clause 18.2.

The Client agrees Tanda may promote the Client’s use of the Products and Services on Tanda’s website, responses to requests for proposals and external presentations for the purposes of promoting the Products and Services. Tanda may also promote the Client’s use of the Products and Services in in case studies and press releases where the Client’s prior permission is obtained.

The Agreement is governed by and construed in accordance with the laws of Queensland, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia.

21.1 Dispute Resolution Process

1. Subject to clause 21.1(b) a party claiming that a dispute or disagreement has arisen out of, or in connection with, the Agreement (Dispute) will, within 5 Business Days of the Dispute arising, give written notice to the other party providing particulars of the Dispute (Notice of Dispute) and, designating which of its Authorised Officers has authority to settle the Dispute.  
2. The parties agree that the dispute resolution process in this clause 21.1 (Dispute Resolution Process) does not apply to Disputes in connection with the calculation or invoicing of the Fees.
3. The parties will meet at location or arrange a telephone conference as agreed between the parties in writing within 5 Business Days of receipt of the Notice of Dispute in accordance with clause 21.1(a) to seek to resolve the dispute amicably.
4. If the Dispute has not been resolved within 20 Business Days of receipt of the Notice of Dispute in accordance with clause 21.1(a) the parties may agree to refer the dispute to mediation administrated by a mediator recommended and accredited by the Resolution Institute in accordance with the Resolution Institute’s professional mediation rules or an equivalent professional mediator in any jurisdiction outside of Australia. The party issuing the Notice of Dispute must pay the costs of the mediator appointed pursuant to this clause.
5. If the Dispute has not been resolved within 30 Business Days of receipt of the Notice of Dispute in accordance with clause 21.1(a) then (on the basis that the exhaustion of the dispute resolution process set out in this clause 21.1 (Dispute Resolution Process) is a condition precedent to the right of either party to commence court proceedings in relation to the Dispute) then the party who first served the Notice of Dispute may commence litigation.  
6. Any mediation discussions and proceedings undertaking in accordance with clause 21.1 (Dispute Resolution Process) constitute Confidential Information and will take place in Brisbane (or such other location as the parties may agree between themselves in writing).  

21.2 Urgent relief

Nothing in the Agreement shall prevent either party seeking injunctive or urgent declaratory relief for any matter (including to protect Confidential Information) arising out of, or in connection with, the Agreement. 

21.3 Obligations continue

Despite the existence of a Dispute, each party will at all times continue to fulfil all obligations under the Agreement, including in respect of confidentiality. 

22.1 Notices 

1. The parties may give each other notice under the Agreement by email or other Electronic Communication, or by post, at the Tanda Address Details or Client Address Details, or at the address otherwise notified to the other party from time to time.
2. Except as otherwise provided in the Agreement, any notice or other communication to or by any party must be in writing and in the English language and be signed by the party or by an Authorised Officer of the sender.

22.2 Electronic Communication

Each party consents to:

1. information in connection with the Agreement being given by an Electronic Communication; and
2. an electronic signature being used to identify each party and to indicate each party’s intention in relation to the information communicated (including an intention to be bound by the Agreement).

22.3 Assignment

1. The Client will not assign, transfer or novate all or any part of its rights or obligations under or relating to the Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of Tanda.  
2. Tanda may assign, transfer or novate all or any part of its rights or obligations under or relating to the Agreement without prior written notice to the Client.

22.4 Severability

If a provision of the Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

22.5 Further assurance

Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to the Agreement and the transactions contemplated by it.

22.6 Taxes

The Client must:

1. pay all Taxes which may be payable or determinable in connection with the execution, delivery, performance or enforcement of the Agreement or any payment or receipt or of any transaction contemplated by the Agreement; and
2. if the Client is required by Law to deduct or withhold Taxes from the Fees or any payment under the Agreement, it must make the required deductions and withholdings, pay in accordance with the relevant law the full amount deducted or withheld, deliver to Tanda the receipt for each payment and increase the amount of the payment to Tanda to an amount which will result in the receipt by Tanda of the full amount which would have been payable to Tanda if no deduction or withholding had been required; and
3. indemnify Tanda against any liabilities resulting from any delay or omission by the Client to pay any Taxes.

22.7 Indemnities

Subject to any other provision of the Agreement, the indemnities in the Agreement are continuing obligations, independent from the other obligations of the parties under this agreement and continue after the Agreement ends.  It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under the Agreement.

22.8 Waiver

A party’s waiver of a right under or relating to the Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party. No other act, omission or delay by a party will constitute a waiver of a right.

22.9 Counterparts

The Agreement may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument.  A party who has executed a counterpart of the Agreement may deliver it to, or exchange it with, another party by emailing a pdf (portable document format) copy of, the executed counterpart to that other party.

22.10 Fundamental Condition

As a fundamental condition of the Agreement, the Client acknowledges and agrees that any statement, information or advice provided by Tanda and its Personnel (including information displayed on its website www.Tanda.co and in its marketing and promotional material) prior to, during and after the expiration of the Agreement is general in nature and should not be relied upon by any person as legal advice or otherwise.

22.11 Whole agreement

The Agreement:

1. is the entire agreement and understanding between the parties relating to the subject matter of the Agreement; and
2. supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.