Master Service Agreement
1. BLUTONE TECHNOLOGIES PTY LTD (ACN 134 297 546) of Suite 112 , 330 Wattle St, Ultimo, Sydney, NSW 2007 (Blutone); and
2. YOU (Customer).
Blutone provides information technology solutions to corporate and small to medium enterprises.
The Customer has requested that Blutone provides the Customer with the Services in accordance with:
(a) this Agreement; and
(b) any other agreements in writing between the Parties.
(a) This Blutone Master Services Agreement, together with each Schedule (the Agreement), is effective from the earlier of either:
(i) clicking the button next to the words “I have read and accept the above Terms and Conditions” button located on the URL “www.blutonetech.com.au”; or
(ii) the date on which Blutone first provides the Customer with the Services or part thereof. (the Agreement Date)
(b) Blutone relies on the details the Customer has provided on the URL.
(c) If you are entering this Agreement on behalf of another entity (the Represented Entity) as its agent, officer, employee or other representative, you acknowledge that you are providing the following warranties to Blutone:
(i) you have full legal authority to bind the Represented Entity to this Agreement;
(ii) you accept the terms and conditions of this Agreement on behalf of the Represented Entity;
(iii) you have been provided with a reasonable opportunity to read and understand this Agreement; and
(iv) you indemnify Blutone against any damage or losses that may arise on the basis that you do not have the authority to bind the Represented Entity.
(d) This Agreement governs the Customer’s access to the Application.
2. Definitions And Interpretation
The Parties agree that:
(a) the Recitals are materially true and correct; and
(b) that the Recitals and Schedules are part of the operative provisions of this Agreement.
In this Agreement unless the context otherwise requires:
(a) reference to a person includes any other entity recognised by law;
(b) the singular includes the plural and vice versa;
(c) words importing one gender include all genders;
(d) any reference to any of the parties by their defined terms includes that party’s executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
(e) an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;
(f) an agreement, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(g) clause headings are for reference purposes only;
(h) reference to an Item is a reference to an Item in the Schedule to this Agreement;
(i) reference to a Schedule is a reference to the corresponding Schedule to this Agreement;
(j) reference to a statute, ordinance, code, or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it;
(k) reference to a time is to that time in Sydney, Australia;
(l) reference that something is to be done in writing includes electronic communication;
(m) if the time for something to be done or to happen is the 29th, 30th or 31st day of a month, and that day does not exist, the time is instead the next day; and
(n) if the time for something to be done or to happen is a day that is not a Business Day, the time is extended to the next Business Day.
(1) Agreement has the meaning given to it in clause 1(a);
(2) Additional Work means any work undertaken by Blutone in addition to the work in a Project;
(3) Agreement Date has the meaning given to it in clause 1(a);
(4) Approved Suppliers means suppliers engaged by Blutone, in its reasonable discretion, in order to facilitate the provision of the Services;
(5) Associate has the meaning given to it in the Corporations Act;
(6) Author has the meaning given to it in Part IX of the Copyright Act;
(7) Blutone Business means the business owned and operated by Blutone which involves the supply of the Services and other information technology services;
(8) Business Day means a day on which banks are open for business in New South Wales, Australia excluding a Saturday or a Sunday or a public holiday;
(9) Change Order means any written request for a variation to a Project, made in accordance with clause 5.5 of this Agreement;
(10) Confidential Material includes:
(i) all information, whether marked “confidential” or not, pertaining to a Party, its Related Entities or Associates, including but not limited to business, financial, intellectual property information, information which may be constructed at law as being confidential to the Party, its Related Entities or Associates and information which may reasonably be constructed as being confidential; and
(ii) all documentation, whether marked “confidential” or not, owned by the Party, its Related Entities or Associates, including but not limited to written material, electronic files, online information and database information; but does not include Confidential Material which:
(A) is in the public domain at the time of its disclosure by the Party other than by reason of breach of this Agreement;
(B) is required to be disclosed by law, in relation to which the recipient of the Confidential Material, being a Party to this Agreement, agrees to notify the disclosing Party as soon as practicable; or
(C) the disclosing Party agrees in writing may be disclosed,
(11) Control has the meaning given to it in the Corporations Act;
(12) Copyright Act means the Copyright Act 1968 (Cth);
(13) Corporations Act means the Corporations Act 2001 (Cth);
(14) Costs means any reasonable cost (including legal and other professional costs), charge, expense, outgoing or expenditure (including, but not limited to, fees and disbursements payable to contractors, consultants, lawyers, accountants, auditors and other skilled people or professionals);
(15) Customer Project Manager means the manager, or principal point of contact, nominated in writing by a Customer as the point of liaison for Blutone in relation to a particular Project;
(16) Event of Default means any of the following:
(i) the Customer, being a company, files or is the subject of, a petition, resolution or proceedings for voluntary administration or liquidation;
(ii) a liquidator, provisional liquidator, receiver, receiver and manager or administrator is appointed to the Customer or in relation to any of its assets or undertakings;
(iii) the Customer has served on it or suffers service of any execution, levy, or distress against it;
(iv) the Customer makes an assignment or any other arrangement for the benefit of creditors or makes any composition or arrangement with such creditors or is unable to or deemed to be unable to pay its debts as and when they fall due;
(v) the Customer purports to assign or otherwise transfer the rights under this Agreement (or any part of them) without first complying with the provisions of this Agreement; or
(vi) the Customer permits to occur or suffers a substantial change in the management, or any change in the ownership or control of the Customer, which is not first disclosed to and authorised in writing by Blutone,
(17) Fees means the fees payable by the Customer to Blutone in accordance with Agreement in consideration for the Services;
(18) Fixed Fee has the meaning given to it in clause 6.3;
(19) GST means any tax, levy, charge or impost implemented under the GST Act or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
(20) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(21) Intellectual Property means all intellectual property rights of a party and its Related Entities, which arise by operation of legislation, common law or equity, and which includes, but is not limited to, trademarks, copyright, patents, patents pending, know how, trade secrets, names of domains, products, brands and services, moral rights, designs, inventions, Confidential Material, irrespective of whether these items or rights are registered, or capable of registration;
(22) IP Improvement means any improvement, amendment, new work, derivative work or other creation by the Customer of the Intellectual Property, in respect of which the Customer obtains or may obtain any intellectual property rights;
(23) Month means each month in a calendar year;
(24) Party means a party to this Agreement;
(25) Project means the provision, by Blutone to the Customer, of Services as agreed by both Parties from time to time in writing;
(26) Related Entity has the same meaning as in the Corporations Act;
(27) Represented Entity has the meaning given to it in clause 1(c);
(28) Restraint Area means Sydney, NSW, Australia;
(29) Restraint Period means three (3) months from the date of termination;
(30) Retainer has the meaning given to it in clause 6.4(a);
(31) Services means the services provided by Blutone to the Customer in the course of a Project;
(32) Time Billing has the meaning given to it in clause 6.2(a);
(33) URL means www.blutonetech.com.au; and
(34) You means the entity that enters into this Agreement with Blutone, either through:
(i) completing the personal information contained in the “checkout” page of the URL “www.blutonetech.com.au”; or
(ii) accepting the Services from Blutone.
Title 3. General
The Parties agree and acknowledge that Blutone will provide the Services in accordance with the terms and conditions set out in this Agreement.
The Parties agree and acknowledge that this Agreement prevails in the event of, and to the extent of, any inconsistency between this Agreement and any other agreement between the Parties.
3.3 Independent Status
The Parties agree and acknowledge that this Agreement creates a relationship between the Parties which is solely that of an independent contractor and a customer and not that of an employer and employee, licensor and licensee, franchisor and client or any other joint venture, partnership or any other implied or expressed relationship, whether at law or in equity.
(a) Nothing in this Agreement is intended to prevent the Customer from independently developing or entering into agreements for the purchase of services the same or similar to the Services from third party service providers.
(b) Nothing in this Agreement is intended to prevent Blutone from supplying services which are the same or similar to the Services to third parties.
(a) commences on the Agreement Date; and
(b) continues until the later of:
(i) termination by Blutone in accordance with clause 6.5(b) of this Agreement;
(ii) termination by Blutone in accordance with clause 11.3(b)(i) of this Agreement;
(iii) termination by a Party in accordance with clause 12 of this Agreement; or
(iv) completion of a Project after a Party has provided notice of termination of this Agreement to the other Party in accordance with clause 12 of this Agreement.
5. Projects And Change Orders
Blutone shall only carry out the Services in the event that the Parties have agreed to a Project;
(a) which sets out the specification and scope of works to be undertaken by Blutone during the course of the applicable Project; and
(b) which confirms the type and amount of Fees for the Project.
5.2 No Engagement Outline
The Parties agree and acknowledge that, notwithstanding clause 5.1 and in the event that a there is a dispute as to the scope of a Project:
(a) either Party may rely on any and all correspondence and communication between Blutone and the Customer in
order to ascertain the terms of that particular Project; and
(b) the Customer may not rely solely by reason of the non-existence of a formal agreement between the Parties to refuse payment of Fees to Blutone for work undertaken in relation to that particular Project.
5.3 Breach of Engagement Outline
The Parties agree and acknowledge that:
(a) the terms of each Project, once agreed to by the Parties, forms a binding operative provision of this Agreement; and
(b) a breach of any term of a Project constitutes a breach of this Agreement.
Blutone will use its best endeavours to meet any milestones agreed by the Parties, on the basis that:
(a) the Customer assigns personnel, including the Customer Project Manager, which the Parties consider sufficient both in number and qualifications, to work with Blutone on each Project;
(b) the Customer’s staff and/or representatives are able to respond, in a timely manner, queries made by Blutone, which it considers reasonable and necessary, during the course of a Project during normal business hours; and
(c) if requested by Blutone by way of reasonable notice, the Customer’s staff and/or representatives, meet with Blutone to discuss a Project.
5.5 Change Orders
If the Customer desires to change, modify or supplement the Services to be performed under a particular Project, or if Blutone forms the opinion that a Project needs to be changed, modified or supplemented, the Parties agree and acknowledge that:
(a) the requesting party shall request such changes, modifications or supplemental actions pursuant to a Change Order;
(b) the Change Order must be in writing;
(c) a Change Order shall not be effective unless and until the Parties mutually agree in writing to the changes or modifications to the Services as set out in the applicable Change Order or the description of the supplemental services described in that Change Order;
(d) each Change Order shall include any additional costs and schedule changes or additions;
(e) in the event the Parties cannot agree to the terms of the Change Order, then either Party may terminate the underlying Project, subject to the terms of clause 12.
(a) Blutone shall use its best commercial endeavours to make resources and personnel available to the Customer as needed during the course of a Project.
(b) The Parties agree to work collaboratively and in good faith to determine start dates for personnel who are to be involved in a Project.
(c) Blutone reserves its rights to substitute personnel of equal qualification and experience assigned to a particular Project with similarly qualified personnel.
The Customer agrees to comply with Blutone’s reasonable requests and instructions, in relation to the Services, failing which Blutone does not accept responsibility for any loss or damage which arises as a result of the failure.
6. Fees, Payments And Expenses
The Parties agree that correspondence relating to each Project shall be specify the type and amount of Fees to be paid by the Customer to Blutone in relation to the Project.
6.2 Time Billing
The Parties may agree that a Project be conducted on a time billing basis, in which event:
(i) Blutone shall use its best endeavours to provide the Customer with a costs estimate for the Project;
(ii) the Customer agrees that such costs estimate is not binding and may be subject to variation, either higher or lower, which variation will be communicated to the Customer by Blutone as soon as is practicable or calculable; and
(iii) all hours Blutone spends on a Project shall be charged to the Customer in accordance with the hourly rates specified by Blutone from time to time. (Time Billing)
(b) Additional Work
In the event that the Parties agree to a Project on a Time Billing basis and subsequently Blutone forms a reasonable opinion that Additional Work is required:
(i) Blutone shall advise the Customer of the need for the Additional Work as soon as is practicable and calculable; and
(ii) the Customer may choose to terminate that particular Project in writing, in which case:
the Customer will be liable to Blutone for all Fees and expenses Blutone has incurred up to the time of termination.
Timesheets and Expense Reports
(i) Unless otherwise specified by the Parties, the Customer Project Manager, if any, shall review and approve timesheets and expense reports submitted by Blutone within five (5) Business Days of submission.
(ii) In the event that the Customer disputes such timesheets or expense reports, the Customer must provide Blutone with written details of the dispute within the five (5) Business Days of the submission referred to in clause 6.2(c)(i), failing which such timesheets and/or expense reports shall be deemed to be approved and will become due and payable by the Customer.
(iii) Timesheets and expense reports approved by the Customer shall be the sole basis for invoicing and payment for services rendered by Blutone.
6.3 Fixed Fee
The Customer agrees and acknowledges that:
(a) any fixed fee set out for an applicable Project is binding on the Customer in accordance with the payment terms agreed in relation to that Project; and
(b) Blutone might, from time to time, need to undertake Additional Work in relation to a particular Project, in which case:
(i) Blutone shall charge Fees associated with the Additional Work to the Customer; and
(ii) Blutone shall use its best endeavours to ensure that it receives written authorisation from the Customer to proceed with the Additional Work, however in this regard the Customer acknowledges that it may not always be possible, depending on the urgency of the Additional Work, for such authorisation to be requested by Blutone, which at all times will act reasonably and in good faith.
6.4 Retainer Basis
The Parties may agree to a Project to be conducted on a retainer basis, in which event the Parties shall agree, at a minimum, to the:
(i) the term of the retainer; and
(ii) the Projects, Services and Fees to be undertaken by Blutone under the retainer.
The Customer agrees to pay Blutone the Fees for the Project relevant to the Retainer as required by Blutone.
Blutone reserves the right to charge default interest, at a rate of ten percent (10%) per annum, calculated daily and charged weekly, on the total of all invoices which remain unpaid by the Customer for more than thirty (30) days from the date of the invoice, until such amounts are paid in cleared funds.
In the event that an invoice remains unpaid for more than thirty (30) days from the date of the invoice, Blutone may terminate this Agreement with one (1) day’s notice to the Customer, upon which termination:
(i) Blutone may cease work on all Projects; and
(ii) all Fees for work undertaken by Blutone up to and including the date of termination will become immediately due and payable.
Blutone may apply or set off any monies it receives from the Customer towards any invoices which remain unpaid, as it deems fit.
(a) All amounts payable under this Agreement are stated exclusive of GST.
(b) If Blutone is liable to pay GST in respect of any good or service supplied under this Agreement, Blutone will invoice the Customer for that tax and will ensure that the invoice complies with the form of tax invoice required by the relevant tax legislation.
(c) The Customer must pay the amount of tax invoiced simultaneously with the corresponding consideration required to be paid or given under this Agreement.
(a) Blutone shall, at its own expense during the term of this Agreement, continuously maintain insurance of the kind and in the minimum amounts as follows:
(i) comprehensive general liability insurance or commercial general liability insurance providing coverage for: operations and premises; products and completed operations; contractual liability; broad form property damage (including completed operations); and personal injury liability, and on the following basis:
(A) comprehensive general liability limits shall not be less than a combined single limit for bodily injury, property damage and personal injury liability of $5,000,000 per occurrence and $5,000,000 aggregate; and
(B) commercial general liability (Occurrence) policy limits shall not be less than $5,000,000 per occurrence (combined single limit for bodily injury and property damage), $5,000,000 for personal injury liability, $5,000,000 aggregate for products and completed operations and $5,000,000 general aggregate;
(ii) workers’ compensation insurance shall be provided as required by law or regulation; and
(iii) employer’s liability insurance shall be provided in amounts not less than $500,000 per accident for bodily injury by accident, $500,000 policy limit by disease, and $500,000 per employee for bodily injury by disease, and
Blutone shall furnish, upon written request, to the Customer:
(i) a certificate of insurance evidencing the required coverage and limits; and
(ii) copies of any endorsements subsequently issued, which amend coverage or limits.
7. Approved Suppliers
In the event that Blutone, acting reasonably, forms an opinion that the products or services of an Approved Supplier are required in order to fulfil a Project, Blutone shall seek written approval from the Customer in order to purchase those products or services.
The Customer agrees and acknowledges that it is a condition precedent to the Customer remaining compliant with this Agreement that the Customer pays any Approved Supplier in accordance with tax invoices issued to the Customer by either the Approved Supplier or Blutone.
8. Client Property
In the event that, during the course of a Project, it becomes necessary for Blutone to use, store or otherwise deal with the Customer’s property, the Parties agree and acknowledge as follows:
(a) Blutone does not accept any risk with respect to the Customer’s property;
(b) Blutone shall not be responsible in tort or contract, or otherwise, and shall be released and indemnified by the Customer for any liability arising from any loss of, or damage to, or deterioration of, the Customer’s property, for any reason except the negligence or a wilful act or default by Blutone, or by anyone on its behalf;
(c) Blutone will not arrange insurance to cover damage, destruction to, or loss of the Customer’s property; and
(d) under no circumstances will Blutone be liable for arranging any insurance in relation to the Customer’s property.
9. Intellectual Property And Confidential Material
(a) Nothing in this Agreement is intended to be construed as granting a Party any goodwill or ownership rights in the Intellectual Property of the other Party.
(b) The Intellectual Property of each Party is the exclusive property of that Party and/or its Related Entities and as such all goodwill accrued in relation to the Intellectual Property of a Party accrues to the exclusive benefit of that Party and/or its Related Entities.
In the event that the situation arises, each Party must use its best endeavours to:
(a) ensure that the Intellectual Property of the other Party is kept secure from unauthorised use and access; and
(b) notify, and assist to the best of its ability, the other Party immediately in the event that either Party discovers an infringement of the other Party’s Intellectual Property by a third party.
(a) Transfer and Licensing
The Customer agrees:
(i) to immediately assign to Blutone any intellectual property rights it might obtain with respect to the Intellectual Property of Blutone, whether in the form of IP Improvements or otherwise;
(ii) to perform all acts reasonably necessary to facilitate the assignment to Blutone of intellectual property rights of Blutone which, for whatever reason, have been registered in the Customer’s name;
(iii) to immediately grant a licence to Blutone, in the event that the intellectual property rights referred to in clause 9.3(a)(i) are incapable of being assigned, which licence provides for:
(A) a perpetual term;
(B) assignment of the intellectual property rights to Blutone upon demand;
(C) exclusivity to Blutone;
(D) no royalty payments; and
(E) a global licence.
In the event that the Customer, its personnel, representatives or suppliers are deemed an Author of an IP Improvement of the Intellectual Property of Blutone, the Customer must:
(i) provide or procure a written assignment of title in that IP Improvement, which must include a statement of acknowledgement from the relevant Author that such an assignment is fair and reasonable in order to give effect to the ownership rights of Blutone or its Related Entities in relation to that IP Improvement; and
(ii) ensure that no entity except Blutone is named as the Author of that IP Improvement.
(c) Confidential Material
(i) must use the Confidential Material only for the performance of their obligations under this Agreement and for no other purpose;
(ii) must keep the Confidential Material in a secure place or device which is accessible only by each other and furthermore must ensure that no unauthorised entities obtain access to the Confidential Material;
(iii) must not disclose the Confidential Material to a third party without the prior express written consent of each other, and furthermore acknowledges that the disclosing party may withdraw such consent in its absolute discretion;
(iv) must not use the Confidential Material for personal commercial (or otherwise) benefit or for the commercial (or otherwise) benefit of a third party and furthermore acknowledges that use of the Confidential Material contrary to this subclause which results in damage or loss to the disclosing party may give rise to a cause of action against the receiving party for that damage or loss;
(v) must not use the Confidential Material in any way that results in competition with each other;
(vi) may only disclose the Confidential Material to their directors, shareholders, officers, employees, subcontractors, advisors, nominees and agents in the event that it is absolutely necessary and then only in the event that the receiving party undertakes to bind those entities to confidentiality provisions which are the same as those outlined in this Agreement;
(vii) must immediately inform a disclosing party of any breach of this Agreement by any entity and take all steps necessary to assist in the rectification of such breach and the prevention of a reoccurrence of such breach;
(viii) acknowledges that a disclosing party will always retain legal ownership of the Confidential Material; and
(ix) acknowledges that nothing in this Agreement is intended to imply any type of licence or assignment of the Confidential Material to the receiving party.
10. Maintenance And Support Services
Blutone shall provide the Customer with the maintenance and support services if the Parties have agreed to the provision of such services in writing.
The Customer agrees and acknowledges that it may not assign its obligations under this Agreement to a third party without the express written consent of Blutone which will not be unreasonably withheld.
(b) Deemed Transfer
The Customer agrees that a change in the ownership or Control of the Customer partnership, company, trustee company or trust constitutes an act of deemed assignment, in which event:
(i) Blutone may, in its absolute discretion, terminate this Agreement immediately; and
(ii) all Fees for work undertaken by Blutone up to the date of termination will become immediately due and payable by the Customer.
Either Party may terminate this Agreement upon the provision of thirty (30) days’ written notice to the other, for any reason, in which event all Fees due and payable for work undertaken by Blutone up to the date of termination will become immediately due and payable.
The Customer and its directors, if the Customer is a company, agree and acknowledge that it will not, during the Restraint Period and in the Restraint Area, either directly or indirectly, either alone or in partnership, or as a director or shareholder of any company, or as an employee, consultant, subcontractor, contractor, lender, representative, agent, advisor or by way of a Relative employ or solicit the skills or knowledge of an employee, contractor or sub-contractor of Blutone or its Related Entities.
14. Liability, Warranties & Indemnities
(a) Limitation of Warranties and Liability
(i) The provisions of various statutes, rules, and regulations in force from time to time, which apply to this Agreement, may not, or may not except to a limited extent, be varied, modified or excluded. To the extent that it is not lawful to vary, modify or exclude them they shall, but only to the extent required by law, form part of this Agreement.
(ii) This Agreement contains certain express terms and warranties. To the extent permitted by law, there are no other terms, warranties or conditions, whether statutory, express, implied, collateral or otherwise, and such terms, warranties or conditions are hereby expressly excluded to the extent permitted by law.
(iii) In no event shall Blutone or its respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, be liable to the Customer or anyone claiming under or through the Customer, for any punitive, exemplary, incidental, indirect, or special damages, based on, arising out of or in connection with this Agreement, or any matter relating to this Agreement, or error in information (whether negligent or not) supplied before or after the date of this Agreement in connection with its subject matter, or with the supply or use of the Approved Services, whether based on contract, tort (including but without limitation negligence), or any other legal or equitable grounds, even if Blutone knew or ought to have known of the possibility of such damages or consequential loss.
(iv) Any liability of Blutone or its respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, to the Customer or anyone claiming under or through the Customer for all losses including without limitation, causes of action and claims based upon breach of contract, tort (including but not limited to negligence), breach of warranty, or any other legal or equitable grounds, under, based on, arising out of or in connection with this Agreement, or any matter relating to this Agreement, or for error of information supplied before or after the date of this Agreement in connection with its subject matter, shall not exceed in total the amount of fees paid to Blutone by the Customer during the consecutive twelve (12) month period immediately preceding the occurrence of the first such event giving rise to such liability.
The Customer agrees to indemnify Blutone and its agents, directors, and employees from all claims, demands, losses, damages, proceedings, compensation, costs, charges, expenses and liabilities:
(i) which may arise in respect of any accident, loss or damage to property or death of or injury to any person of whatever nature or kind in the currency of this Agreement, including caused by any person or by the Customer except where such arises as a result of Blutone’s negligence, deliberate act or mistake, or breach of any obligations imposed upon it by law;
(ii) for which the Customer may be or become liable whether during or after the currency of this Agreement in respect of or directly or indirectly arising from any loss, damage or injury caused by the neglect or default of the Customer or its agents, employees, contractors or directors to fully, duly, punctually and properly to pay, observe and perform any of its obligations, covenants, terms and conditions contained in this Agreement; and
(iii) arising from the Customer’s failure to comply with any legislation during currency of this Agreement.
The Parties agree that a failure by a Party to enforce any provisions of this Agreement shall not operate as a waiver of that Party’s rights in relation to enforcement of those provisions.
Unless otherwise specified in the Agreement, all notices, requests, demands, and other communications (other than routine operational or billing communications) required or permitted hereunder shall be in writing and shall be deemed to have been received by a Party:
(a) when actually received in the case of hand delivery against a signed receipt;
(b) two (2) Business Days after being given to a reputable overnight courier with a reliable system for tracking delivery;
(c) when sent by confirmed facsimile;
(d) upon receipt, when mailed by Australia Post, registered or certified mail, return receipt requested, postage prepaid; or
(e) one (1) Business Day after transmission by electronic mail.
If anything in this Agreement is deemed to be unenforceable, illegal or void, then it is severed and leaves intact all other non-severable parts of this Agreement, which remain in full force.
18. Force Majeure
Neither Party shall be in default of this Agreement due to any failure or delay in the performance of any obligations if that failure or delay is due to any cause which is beyond the reasonable control of that Party and furthermore is not due to that Party’s fault or negligence, which causes shall include, without limitation: storms, floods, other acts of nature, fires, explosions, epidemics, pandemics, riots, macroeconomic crises, delays in transportation, inability to obtain necessary labour, supplies or manufacturing facilities, war or civil disturbance, strikes or other labour unrests, embargoes and other governmental actions or regulations that would prohibit either Party from ordering or furnishing the Approved Services or any other aspects of the obligations hereunder.
19. Governing Law
(a) This Agreement will be governed by and construed in accordance with the laws from time to time in force in the state of New South Wales and both Parties submit to the non-exclusive jurisdiction of the courts of that state and of the Commonwealth of Australia.
(b) Blutone and the Customer agree that this Agreement will be amended in the event that any laws are changed or introduced which, in the opinion of Blutone or its solicitors, renders the Agreement unenforceable, illegal or void.
20. Survival Of Clauses Upon Termination
The expiration or termination of this Agreement does not operate to terminate or extinguish any of the continuing obligations under this Agreement and those obligations remain in full force and effect and are binding upon the Contents Customer
21. Time Of The Essence
Time is of the essence in this Agreement unless it is agreed to otherwise by the Parties.
An amendment or variation to this Agreement must be agreed by both Parties in writing.