Service Agreement

SOFTWARE AS A SERVICE AGREEMENT MY CHARITY CHANGE PTY LTD ACN 637 688 898 (MCC)
and
THE PARTY LISTED IN ITEM 2 OF SCHEDULE 1 (Charity Partner)

THIS AGREEMENT is made on the day set out in Item 1 of Schedule 1 BETWEEN:
MY CHARITY CHANGE PTY LTD ACN 637 688 898
c/- PO Box 9545 Melbourne, VIC, 3004 (MCC)

and
THE PARTY LISTED IN ITEM 2 OF SCHEDULE 1 (Charity Partner)

WHERE:

  1. MCC has developed and owns the Platform and has expertise in the delivery of the Services.
  2. At the Charity Partner’s request, MCC has agreed to grant the right to use the Platform, and to provide the Services, to the Charity Partner on and subject to the terms and conditions of this Agreement.

THE PARTIES AGREE AS FOLLOWS:

1 Definitions and Interpretation

1.1 Definitions
In this Agreement the following terms have these meanings:

Agreement means this software-as-a-service agreement.
Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Australia.

Commencement Date means the date specified as the Commencement Date in Item 1 of Schedule 1.

Confidential Information means the terms of this Agreement and all Information disclosed to the Recipient (or any of its Personnel) by or on behalf of the Discloser (or any of its Personnel) under or in connection with this Agreement including:

(a) information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of MCC;

(b) information derived partly or wholly from the Information including without limitation any calculation, conclusion, summary, computer modelling; and

(c) trade secrets and information which is capable of protection at law or equity as confidential information but excludes the Excluded Information.

Consequential Loss means any:
(a) Loss that does not arise naturally (that is, according to the usual course of things) from the event giving rise to the Loss; and

(b) any loss of profits, loss of production, loss of revenue, loss of business, loss of goodwill, damage to reputation, loss of opportunity, loss or corruption of data or wasted overheads.

Corporations Act means the Corporations Act 2001 (Cth).
Discloser means the party disclosing Confidential Information.
Donations are donations from Users collected by MCC on behalf of the Charity Partner.

Excluded Information means Information which:
(a) is in or becomes part of the public domain otherwise than through breach of this Agreement or an obligation of confidence owed to the Discloser;

(b) the Recipient can prove was already known to it at the time of disclosure by the Discloser (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality);

or

(c) the Recipient acquires the Information from a source other than the Discloser where such source is entitled to disclose it.

Force Majeure Event means any event outside the reasonable control of the affected party, including:

(a) an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought, meteor or other natural disaster;

(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;

(c) an act of public enemy, sabotage, malicious damage, terrorism or civil unrest;

(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority;

(e) a labour dispute other than a labour dispute that only involves the party’s personnel; and (f) collapse of buildings or accident.

Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.

GST has the meaning given by section 195-1 of the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.

Information means all information relating to or developed in connection with: (a) the business, technology or other affairs of the Discloser;
(b) the Platform;
(c) the Services or this Agreement; or

(d) any systems, technology, ideas, concepts, know-how, techniques, designs, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs (including without limitation, computer software, manufacturing processes or other information embodied in drawings or specifications), intellectual property owned or used by, or licensed to, the Discloser.

Insolvency Event means the happening of any of the following events:
(a) a liquidator or provisional liquidator is appointed, whether by a court or otherwise;

(b) a body corporate commences to be wound up or ceases or threatens to cease to carry on business;

(c) a body corporate is insolvent or is presumed insolvent under the Corporations Act; or (d) on successful application to the Court:

(i) a receiver, or receiver and manager is appointed, whether by a Courtor otherwise;

(ii) an administrator is appointed by a body corporate under sections 436A, 436B or 436C of the Corporations Act;

(iii) a body corporate enters into a compromise or arrangement with its creditors or a class of them;

(iv) a body corporate suspends or threatens to suspend payment of its debts generally;

(v) execution or similar process is issued against a body corporate’s property; or

(e) anything having a substantially similar effect to any of the above events happens under the law of any applicable jurisdiction.

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967.

Licence has the meaning given in clause 3.1.
Loss means losses, liabilities, damages, costs, charges and expenses including legal costs on a solicitor-own client basis.

Material means software, firmware, tools, documentation, reports, data, diagrams, procedures, plans and other materials associated with the Platform.

Personal Information has the meaning given in the Privacy Act.
Personnel means in relation to any party, the employees, volunteers, partners, agents and contractors (including employees of contractors) of that party.

Platform includes the Platform IP and means the software solution, services and processes of MCC to supply the Services, as modified, updated, revised and replaced from time to time, including but not limited to any applications, websites and social media pages (including all future versions of the Platform made available by MCC to the Charity Partner from time to time).

Platform API means any application programming interface provided as part of the Platform. Platform IP means all Intellectual Property Rights in and to the Services, the Platform and Platform Material.

Platform Materials means any Materials provided or made available to the Charity Partner by or on behalf of MCC under this Agreement, together with any modifications and enhancements to those Materials.

Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means the Privacy Act and all other applicable privacy and data protection laws as may be in force from time to time (including in other jurisdictions) which regulate the collection, use, disclosure, storage of and granting of access rights to Personal Information by MCC and the Charity Partner.

Privacy Policy means the privacy policy applicable to the Platform, which can be found at [https://mycharitychange.com.au/my-charity-change-partner-terms-of-use-conditions/] (or provided upon request to MCC), as amended from time to time.

Purpose means enabling Users to automatically make financial donations to the Charity Partner through Transactions collected by MCC on behalf of the Charity Partner.

Recipient means the party receiving Confidential Information. Schedule means a schedule to this Agreement.

Scheduled Maintenance means the non-availability of the Platform to perform necessary maintenance or upgrades as required to ensure the Platform can facilitate the Services.

Service Fee means the fee payable by the Charity Partner for the Services, as set out in Item 3 of Schedule 1.

Services means the services to be provided by MCC to the Charity Partner under this Agreement, as specified in clause 2.1.

Term has the meaning given in clause 8.1.
Tier means the tier selected by the Charity Partner, as set out in Item 4 of Schedule 1

Transactions means automatic direct debit transactions authorised by a User to allow MCC to deduct money for the Purpose.

User means a person who has registered with MCC for the purpose of making donations to the Charity Partner through the Platform.

1.2 Interpretation
In this Agreement unless the contrary intention appears:

(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning; (f) any reference to a party to this Agreement includes its successors and permitted assigns;

(g) any reference to any agreement or document includes that agreement or document as amended at any time;

(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;

(i) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;

(j) an agreement, representation or warranty on the part of two or more persons is for the benefit of and binds them jointly and severally;

(k) reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this Agreement;

(l) reference to a provision described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this Agreement means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;

(m) any reference to “dollars” or “$” is a reference to the currency of Australia unless otherwise stated;

(n) when a thing is required to be done or money required to be paid under this Agreement on a day which is not a Business Day, the thing must be done and the money paid on the immediately following Business Day;

(o) reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

2 Services

2.1 Services
The Services are the provision of the Platform to the Charity Partner to enable Users to authorise MCC to make Donations to the Charity Partner. These Donations will be made to the Charity Partner on a weekly basis.

2.2 Supply of the Services
Subject to the Charity Partner’s compliance with its obligations under this Agreement, including payment of the Service Fee in accordance with clause 5, MCC will provide the Services to the Charity Partner in accordance with the terms of this Agreement.

2.3 No Exclusivity
This Agreement is not exclusive and will not prevent or limit MCC from providing services that are the same as or similar to the Services to any other person.

3 Licence

3.1 Grant of Licence
(a) Subject to the Charity Partner’s compliance with its obligations under this Agreement,

including payment of the Service Fee in accordance with clause 5, MCC grants a non- exclusive licence to the Charity Partner to use the Platform for the Term in Australia, with no rights of sub- licence, for the Purpose and subject to the terms and conditions of this Agreement (Licence).

(b) MCC is entitled to enter into further agreements with third parties in respect of further licenses of the Platform provided it does not disclose any Personal Information disclosed by the Charity Partner to MCC.

(c) The Charity Partner acknowledges and agrees that:

(i) all moral rights and personal rights in, or associated with, the Platform are, or will remain, during and after the expiration or termination of the Term, the property of MCC and nothing in this Agreement will affect those rights;

(ii) it has no title or ownership rights to the Platform;

(iii) it must not do anything which may detract from the reputation of MCC in dealings in the Platform;

(iv) it must not interfere with or inhibit the authorised use of the Platform by MCC;

(v) it must not, whether during or after the Term, do or allow to be done any act or thing within its control which in any way impairs the rights of MCC in the Platform and must not represent that it has any right, title or interest in the Platform;

(vi) it must not sell, assign, transfer, sub-licence, declare itself a trustee of, mortgage, charge, pledge or otherwise encumber or deal adversely with the Platform;

(vii) it assigns to MCC all present and future Intellectual Property Rights and interests in any improvements, adaptations, alterations, modifications, evolutions or derivatives of the Platform which may be developed by the Charity Partner or which otherwise arise during the Term;

(viii) it must not make any false or misleading representations with regard to the Platform or MCC;

(ix) it must notify MCC immediately of any infringement, potential infringement or challenge of the rights of MCC in respect of the Platform by a third party;

(x) it must not allow any third party, either directly or indirectly, to use the Platform without the prior written consent of MCC;

(xi) it will comply with all reasonable requests of MCC in relation to the use of the Platform; and

(xii) it will comply with all laws and requirements of any Government Agency in its use of the Platform, including obtaining and maintaining all necessary accreditations, permits, licences and approvals required.

(d) Without limiting the generality of the licence granted in accordance with this clause 3.1, the Charity Partner will ensure that its Personnel act in accordance with the Charity Partner’s obligations under this Agreement, including in compliance with the \ Privacy Policy.

3.2 Ownership
This Agreement does not affect the ownership of the Platform or any of the Intellectual Property rights in the Platform.

4 Platform

4.1 Availability of the Platform
MCC will take all reasonable commercial measures to ensure that the Platform is able to facilitate the provision of the Services at all times, subject to periods of Scheduled Maintenance from time to time.

MCC will provide a minimum of two (2) weeks’ notice to the Charity Partner prior to Scheduled Maintenance.

4.2 The Charity Partner understands, acknowledges and agrees that:
(a) the Charity Partner’s use of the Platform is at its sole risk, and, to the maximum extent permitted by law, MCC is not responsible for ensuring any operational or business outcome from the Charity Partner’s use of the Platform;

(b) the Platform may be unavailable during periods where MCC is carrying out support or Scheduled Maintenance, though MCC must provide a minimum of two (2) weeks’ notice prior to any scheduled work (where possible) by sending notification to the Charity Partner. The Charity Partner acknowledges and accepts that notice of work may not be possible in all circumstances (such as urgent work which may become necessary);

(c) MCC will take reasonable steps to support the Platform, whether by providing advice, training, error-correction, modifications, updates, new releases, enhancements or otherwise and provide a first response to reasonable enquiries within 24 hours;

(d) all Intellectual Property Rights in and to the Platform (including in relation to any new features or fixes developed in response to a request or notification by the Charity Partner) will remain owned by MCC;

(e) MCC may from time to time during the Term deploy new versions of the Platform, which may include new features or may remove or alter existing features of the Platform. Once a definite decision has been made to do so, MCC will inform the Charity Partner in writing regarding any planned modification to the Platform, providing the Charity Partner with as much notice as reasonably possible to mitigate impact to the Charity Partner. The terms of this Agreement apply to such future versions of the Platform; and

(f) MCC has invested valuable time and resources in the development of the Platform. The Charity Partner acknowledges and agrees that it must not sell, assign, provide copies, transfer, provide, encumber or licence the Platform or allow the Platform to be encumbered, sold, assigned, transferred, provided, copied for the benefit of, or licensed to any third party.

4.3 Use of Platform
The Charity Partner must:

(a) only use the Platform in accordance with the operating procedures and instructions as notified by MCC;

(b) comply with the Privacy Policy and ensure that its personnel comply with the Privacy Policy;

(c) comply with any security regulations, procedures or directions which may be notified by MCC from time to time in respect of the access and use of the Platform;

(d) not permit any unauthorised use of the Platform;

(e) ensure its Personnel act consistently with the Charity Partner’s obligations under this Agreement and must, if requested by MCC, promptly issue to all users or potential users a notice in a form specified by MCC setting out or summarising the Charity Partner’s obligations under this Agreement;

(f) not alter, change, remove or obscure any notices or other indications regarding the ownership of the Platform;

(g) not attempt to access or use the Platform after the Term has ended; and

(h) immediately notify MCC in writing of any breach of this Agreement by the Charity Partner or other unauthorised use of the Platform of which the Charity Partner becomes aware.

For the avoidance of doubt, the Charity Partner is not bound by (and not required to comply with) the Terms of Use.

4.4 No Modification or Reverse Engineering
(a) The Charity Partner must not, and must not attempt to, directly or indirectly:

(i) modify, alter or amend the Platform;
(ii) merge all or any part of the Platform with any other software or item;

(iii) decompile, disassemble or reverse engineer the whole or any part of the Platform; or (iv) cause any third party to do any of the above acts; without the express prior written consent of MCC, which may be withheld by MCC in its absolute discretion.

(b) Without limiting the effect of clause 4.4(a), the Charity Partner acknowledges and agrees that any modifications, alterations or amendments to the Platform, made with the consent of MCC but without the advice or assistance of MCC, may result in MCC being unable to provide the Services to the Charity Partner and may void any warranties given by MCC under this Agreement.

5 Payment and Tiers

5.1 Payment
(a) The Charity Partner agrees to pay the Service Fee during the Term, such payment to be paid by weekly direct debit in accordance with clause 5.2 and the authorisation set out in Schedule 2.

(b) For the avoidance of doubt, the full amount of all Donations collected on behalf of the Charity Partner will be payable by MCC to the Charity Partner. No Service Fee or other amount will be deducted from any Donations.

5.2 Direct Debit Request Service Agreement (a) Debit arrangements

(i) The Charity Partner agrees to the terms of this direct debit request and authorise and request MCC to debit from its account any amount payable to us by you, including any payable Service Fee. This refers to only Gold, Silver or Bronze partners who have selected a weekly subscription.

(ii) If the debit day is not a Business Day, we can debit your account on the next Business Day. If you are uncertain about when a debit payment has been or will be processed, you should contact your financial institution.

(b) Variation

(i) MCC may vary or cancel the debit arrangements at any time if we have given you at least seven days’ notice of the variation or cancellation.

(ii) Charity Partners can, in writing (including via email), ask for the debit arrangements to be altered. If you request a variation in the debit arrangements, you will be required to provide verification information again.

(c) Cancellation

(iii) You can cancel your authority for MCC to debit your account; or change, stop or defer an individual debit payment at any time by giving us at least seven days’ notice in writing or via email. You can also cancel the debit arrangements by contacting your financial institution, which must act promptly on your instructions.

(i) If you cancel the debit arrangements with your financial institution, you must make other arrangements with an alternative financial instruction.

(ii) You must have a direct debit arrangement in place to receive Donations.

(d) Disputes

(iv) If you believe that MCC has debited your account incorrectly, contact MCC as soon as possible. We can ask you to confirm your query in writing. We will investigate your query and notify you in writing of the action we have taken within seven days.

(i) If we find that the debit was made incorrectly, we will adjust your account accordingly (including in relation to interest and charges). To the extent permitted by law, we will not be liable for any other losses suffered by you. If we find that the debit was made correctly, we will provide you with reasons and any evidence for this finding.

(ii) You can also ask your financial institution to query a debit on your behalf.

(e) Your account

(i) Direct debiting is not available on all accounts and you should check with your financial institution whether direct debiting is available on your account.

(ii) It is your responsibility to ensure that the account details provided to us in the direct debit request are correct. You should check those account details against a recent statement from your financial institution.

(f) Failed payments

(i) If your financial institution does not permit us to process a debit payment on a debit day (whether because there are insufficient clear funds or for any other reason), the following terms apply.

(ii) We will notify you in writing and we may charge you reasonable costs incurred by us on your account of there being insufficient funds.

(iii) Your financial institution may also require you to pay fees, charges and interest.

(g) Notices

If you are required or wish to give us written notice in relation to the debit arrangements, use the Platform, or email us at admin@mycharitchange.com.au. We will send notices to you by email to the address that you have provided to us. Any notice will be deemed to have been received on the second banking day after sending.

5.3 Tier (a)

In exchange for the applicable Service Fee, MCC will provide the Charity Partner with various branding and marketing support benefits, depending on the Charity Partner’s Tier. The applicable benefits attributable to each Tier will be notified by MCC from time to time. As at the Commencement Date, the following Tiers are available:

  • Gold
  • Silver
  • Bronze
  • Standard

6 GST

Unless sated otherwise, any amounts stated in or determined for the purposes of this Agreement are stated or to be determined exclusive of GST. If GST is imposed, assessed or levied on any supply made under this Agreement (Taxable Supply), the recipient of the Taxable Supply shall pay to the provider of the Taxable Supply, in addition to any other payment required by this Agreement, the GST imposed on the Taxable Supply calculated at such percentage of the GST exclusive value of the supply as is applicable, being the rate of GST imposed, assessed or levied in the Taxable Supply at the date the Taxable Supply is made. The provider of that Taxable Supply will deliver to the recipient a GST tax invoice(s) for that Taxable Supply in a form that complies with the requirements of the GST Law.

7 Goodwill

Standard Charity. Bronze Charity. Silver Charity. Gold Charity.

(b) The Charity Partner may elect to change its Tier by written notice to MCC.

The parties agree to act in good faith at all times in their dealings with each other and to not knowingly engage in any act or omission which causes damage to the reputation, goodwill or standing of the other party.

8 Term and Termination

8.1 Term
This Agreement commences on the Commencement Date and continues until terminated in accordance with its terms.

8.2 Termination
(a) Either party may terminate this Agreement by notice in writing to the other party:

(i) if the other party suffers an Insolvency Event; or (ii) if the other party:

  1. commits a material breach of this Agreement; and
  2. fails to remedy that breach within thirty (30) days of being requested to do so.

(b) For the avoidance of doubt:

(i) use of the Services by the Charity Partner other than in accordance with this Agreement; or

(ii) failure by the Charity Partner to pay the Service Fee when it is due and payable;

will constitute a material breach of this Agreement by the Charity Partner, and

(c) For the avoidance of doubt, subject to clause 4.1 and 4.2, failure to provide the Services will constitute a material breach of this Agreement by MCC.

(d) Either party may terminate this Agreement for a reason not listed in clause 8.2(a) by three days’ notice in writing to the other party.

8.3 Suspension

(a) In any situation in which MCC is entitled to terminate this Agreement, without limiting or waiving its termination rights under clause 8.2, MCC may instead elect to suspend the Services (in whole or in part, and including any licences granted by MCC under this Agreement).

(b) In any situation in which the Charity Partner is entitled to terminate this Agreement, without limiting or waiving its termination rights under clause 8.2, the Charity Partner may instead elect to suspend payment of the Service Fee (in whole or in part).

(c) A suspension imposed under clause 8.3(a) or 8.3(b):

8.4 Survival

(i) may continue for a maximum of thirty (30) days until either:

  1. the relevant party which caused the event giving rise to that suspension has remedied the event to the other party’s reasonable satisfaction; or
  2. the party that suspended the Agreement elects to terminate the Agreement in accordance with its rights under clause 8.2; and

(ii) is not a breach of the suspending party’s obligations under this Agreement.

(d) The Charity Partner holds harmless and indemnifies MCC against any Loss it may suffer due to a claim, action or proceeding which may be threatened or brought by a third party against the Charity Partner as a consequence of any suspension or termination of the Services by MCC in accordance with this Agreement.

8.4 Consequences of Termination
(a) On expiry or termination of this Agreement for any reason:

(i) all outstanding Service Fees payable by the Charity Partner to MCC under the Agreement will immediately become due and payable provided that the Charity Partner is not obliged to pay any Service Fees that are not due at the date of termination;

(ii) all Donations that are payable to the Charity Partner will become due and payable on the Monday following the day which termination occurs and;

(iii) all rights and licences granted to the Charity Partner under this Agreement will cease and the Charity Partner will be removed from the Platform.

(a) Expiry or termination of this Agreement for any reason will not affect the rights of either party against the other which:

(i) accrued before expiry or termination; or

(ii) which otherwise relate to or may arise at any future time from any breach or non-observance of obligations under this Agreement which arose before expiry or termination.

(b) The following provisions will survive the termination of this Agreement for any reason: 6, 8.4, 8.6, 9, 10, 11, 12 and any other provision which by its nature is intended to survive termination.

8.6 No Other Termination Rights
Notwithstanding any rule of law or equity to the contrary, this Agreement may not be terminated except as expressly provided in its terms.

9 Confidentiality

9.1 Use of Confidential Information
The parties acknowledge and agree that the Confidential Information of each party is valuable and shall remain the property of that party and must only be used in accordance with the terms of this Agreement.

9.2 Disclosure of Confidential Information
No Confidential Information or information concerning the transactions contemplated by this Agreement may be disclosed to any third party without the prior written consent of the non- disclosing party except to the extent that:

(a) the party is required to do so by any Government Agency, stock exchange, the law, or otherwise to comply with its obligations under this Agreement; or

(b) the disclosure is to a party’s lawyer, banker or accountant (Adviser) and then only to the extent that that the Adviser reasonably needs to know.

9.3 Return of Confidential Information
Each party must, upon demand from another party, return to such other party any material which is Confidential Information supplied by such other party in connection with this.

9.4 Equitable Remedies
The parties acknowledge that damages may not be a sufficient remedy for any breach of this clause 9 and either party is entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for breach or threatened breach by the other party, in addition to any other remedies available at law or in equity.

9.5 Publicity
A party may issue a press release or other public statement or announcement with respect to this Agreement only if it has obtained the other party’s prior written approval (such approval not to be unreasonably withheld or delayed).

9.6 Use of logos and other similar intellectual property
A party will only publish the other party’s promotional intellectual property (including but not limited to content, imagery or text) if it has obtained the other party’s prior written approval (such approval not to be unreasonably withheld or delayed).

10 Privacy and Data Security

10.1 Privacy
(a) Each party must, in relation to any Personal Information that it receives under or in connection with this Agreement:

(i) comply with all Privacy Laws;
(ii) not do anything that would put the other party in breach of any Privacy Laws; and

(iii) provide all reasonable assistance requested by the other party for the purposes of enabling that party to comply with any Privacy Laws.

(b) The Charity Partner represents and warrants that:

(i) the disclosure of Personal Information by the Charity Partner to MCC under this Agreement complies with all Privacy Laws; and

(ii) it has the consents and will provide the notices required under the Privacy Laws in connection with the collection of such Personal Information by the Charity Partner and the subsequent use of the Personal Information by MCC for the performance of its obligations and exercise of its rights under this Agreement, including but not limited to the supply of the Service and the maintenance of permanent encrypted records of searches undertaken.

(c) The Charity Partner indemnifies MCC against any Loss, claim, or demand incurred and arising directly or indirectly from, and any costs, charges and expenses incurred in connection with, any inaccuracy in or breach of clause 9.1(b) of this Agreement.

(d) In relation to any Personal Information disclosed by the Charity Partner to MCC, MCC must comply with the Charity Partner’s privacy policy.

10.2 Data Security
MCC must, in relation to any Personal Information or Information:

  1. (a) disclosed by the Charity Partner to MCC; or
  2. (b) accessible by MCC in (or through) the Platform; or
  3. (c) that MCC receives under or in connection with this Agreement,

(Charity Partner Data) take reasonable steps to:
(d) ensure that its physical and information technology security systems only permit properly authorised and trained personnel to access the Charity Partner Data;

(e) implement appropriate technical and organisational measures against the unauthorised or unlawful disclosure or processing of the Charity Partner Data and against accidental loss or destruction of or damage to the Charity Partner Data; and

(f) promptly notify the Charity Partner on becoming aware of any unauthorised access to or unauthorised disclosure of any Charity Partner Data; and

(g) where any unauthorised access has occurred, immediately take all actions as reasonably directed by the Charity Partner in relation to such unauthorised access.

11 Warranties and Indemnities

11.1 Warranties

(a) Each of the warranties referred to in this Agreement is to be construed independently of each of other warranty and is not limited by reference to any other warranty.

11.2 Each party represents and warrants that:

(a) it is duly incorporated and validly existing and has full power and authority to enter into this Agreement;

(b) it is able to pay its debts when due and payable and it is not the subject of an Insolvency Event;

(c) the execution, delivery and performance of this Agreement and the obligations contained in it have been duly and validly authorised by all necessary corporate action on its part and this Agreement is a valid and binding agreement on the parties and enforceable with its terms;

(d) this Agreement is executed by persons appropriately authorised to do so;

(e) it will comply with all applicable laws and regulations in relation to this Agreement;

(f) it has all necessary licences and consents to enter into and perform this Agreement;

(g) the entering into this Agreement does not result in a breach of any agreement to which it is a party; and

(h) the warranties given by it are true and accurate at the date of this Agreement. 11.3 MCC Warranties

(a) Subject to the exclusions set out in this Agreement, MCC represents and warrants that the Services will be provided with due care, skill and diligence.

(b) MCC warrants to the Charity Partner that the Materials the subject of the Licence and the use of them does not infringe any person’s Intellectual Property and they are not the subject of any registered patents, trademarks or designs that do not belong to, or are otherwise not validly licenced to, MCC or any of its Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth)).

11.4 Exclusions
(a) The representations and warranties given by MCC under the Agreement do not apply

to the extent any defect or other issue is caused by use of the Platform contrary to the terms of this Agreement.

(b) To the extent permitted by law, and subject to clause 11.3(b), MCC:

  1. (i) does not represent or warrant that the Platform will be error or virus free or that the Charity Partner’s use of the Platform will be uninterrupted;
  2. (ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, or of any failure of a banking network or facilities and the Charity Partner acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

(c) Notwithstanding clause 10.4(b), MCC warrants that the Platform will be fit for purpose and any interruption to use within MCC’s control will be not be unreasonable.

11.5 Indemnities
(a) Each party (Indemnifying Party) will indemnify the other party (Indemnified Party) and keep the Indemnified Party indemnified against all and any Losses, costs, expenses and damages whatsoever and howsoever incurred by the Indemnified Party in connection with or arising out of a breach by the Indemnifying Party of any provision of this Agreement.

(b) Without limiting any other provision of this Agreement, each party will indemnify and keep indemnified the other party from and against any Loss or claim incurred or made against the other party in relation to a matter which constitutes a breach of any of the warranties given under clause 10 of this Agreement.

(c) Each indemnity in this Agreement:

  1. (i) is a continuing obligation;
  2. (ii) if given by more than one party, is given severally by each of those parties;
  3. (iii) is a separate and independent obligation from the other obligations set out in this Agreement; and
  4. (iv) survives the termination of this Agreement.

12 Liability

12.1 Liability that is not Limited or Excluded
Nothing in this Agreement operates to limit or exclude:

(a) liability that cannot by law be limited or excluded;
(b) the liability of either party in respect of any breach of clause 9; (c) the liability of either party for any fraudulent act or omission; or (d) the liability of the Charity Partner to pay the Service Fee.

12.2 Exclusions of Liability
Subject to clause 11.4 neither party will be liable to the other party under or in respect of this Agreement whether in contract, tort, statute or any other cause of action for any Consequential Loss

12.3 Duty to Mitigate
Each party will use all reasonable endeavours to mitigate loss and damage it suffers under or in connection with this Agreement.

12.4 Proportionate Liability
The liability of a party (first party) to another party (second party) under this Agreement is reduced to the extent that the liability is caused or contributed to by an act or omission of the second party or any of the second party’s Personnel.

13 Force Majeure

13.1 Force Majeure Events
Neither party will be liable to the other for any delay or non-performance of its obligations under this Agreement to the extent to which such delay or non-performance arises from any Force Majeure Event.

13.2 Mitigation
Each party must take all reasonable precautions and implement reasonable alternative measures in accordance with recognised industry practice to avoid or mitigate the effects of any Force Majeure Event.

13.3 Procedure
A party affected by a Force Majeure Event must promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration (if known) of any consequential delay or non-performance of its obligations.

13.4 Termination
If a Force Majeure Event continues or is reasonably likely to continue for more than thirty (30) days and has a material adverse effect on the ability of a party to perform its obligations under this Agreement, then the other party may terminate this Agreement on written notice to the first party.

14 Dispute Resolution

14.1 Dispute Procedure
The dispute resolution procedure required to be complied with prior to the commencement of litigation or arbitration is as follows:

(a) where a dispute arises between the parties, a party may serve a written notice (Dispute Notice) on the other party detailing the nature of the dispute;

(b) the parties must make reasonable efforts to resolve the dispute by negotiation;

(c) if the parties are unable to resolve the dispute within 28 days of the receipt of the Dispute Notice, a party may institute litigation.

14.2 No Proceedings
Except in cases where it seeks urgent interlocutory relief, each party agrees that it will not commence any legal proceedings or take any other action in relation to a dispute without first following the procedures set out in this clause.

15 Notices

15.1 Form
Unless stated otherwise in this Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement must be in writing.

15.2 Notices and Communications

(a) All notices and other communications provided for or permitted by this Agreement will be sent by prepaid mail, by hand delivery or by email to the addresses of the parties as specified in this Agreement or to such other address or person as either party may specify by notice in writing to the other party. Each notice or communication will be deemed to have been duly received:

(i) not later than three Business Days after being deposited in the mail with postage prepaid; (ii) when delivered by hand; or

(iii) if sent by email, simultaneously with the sender initiating the electronic delivery of that email unless the sender’s machine receives a report indicating that the email was not delivered.

(b) Despite anything else in this clause 15, if a communication is received or taken to be received after 5.00pm on a Business Day or on a non-Business Day, then the communication is taken to be received at 9.00am on the next Business Day.

(c) A party may from time to time notify the other party of any change to its details.

16 Assignment and Subcontracting

16.1 Subcontracting
MCC may subcontract the provision of some or all of its obligations under this Agreement, provided that MCC will remain responsible for the performance of those obligations and will be liable for the acts and omissions of the subcontractor in connection with this Agreement as if they were MCC’s own acts or omissions.

16.2 No Assignment
The Charity Partner must not transfer all or any part of its rights or interests under this Agreement by assignment or novation without the prior written consent of MCC.

17 General

17.1 Entire Agreement
This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter.

17.2 Variation and Waiver
A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.

17.3 Construction
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

17.4 Set-off
Neither party is entitled to set off against any amount due for payment by it to the other party any amount payable to it by that party.

17.5 Remedies
Except where otherwise stated, the rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.

17.6 Further Assurances
Each party will promptly do all things required by law or reasonably requested by any other party to give effect to this Agreement.

17.7 No Merger
No right or obligation of any party will merge on completion of any transaction under this Agreement. All rights and obligations under this Agreement survive the execution and delivery of any transfer or other document which implements any transaction under this Agreement.

17.8 Relationship
Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship between the parties, and each of the parties agree that they are entering into this Agreement only as independent contractors.

17.9 Severability
If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.

17.10 Governing Law
This Agreement is governed by the law in force in Victoria, Australia. Each party submits to the non- exclusive jurisdiction of the courts of Victoria, Australia.

17.11 Counterparts
This Agreement may be executed in counterparts. All counterparts when taken together are to be taken to constitute one instrument.