Master Product and Services Agreement (MPSA)
Last Updated: March 05, 2025
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Master Product and Services Agreement
between
Simpology Pty Ltd
ABN 22 121 772 834
of 8 Boronia Street, Redfern NSW 2016
(Simpology)
and
The Customer
Recitals
A Simpology operates various Simpology Platforms which it uses to provide various Products.
B The Customer wishes to purchase one or more of the Products.
C This MPSA sets out the general terms on which Simpology may supply particular Products to the Customer.
Now it is agreed as follows:
Definitions
Administrator means a single employee, agent or independent contractor of the Customer, nominated in writing by the Customer, who is authorised by the Customer to provision, manage and administer certain aspects of a Product ;
Agreement has the meaning given in clause 3.1;
Anniversary Date means an anniversary of the date the Customer signs an Order Form;
APRA means the Australian Prudential Regulation Authority;
APRA Requirements means any requirement, notice, order, guideline, prudential standard, practice note or direction of APRA;
Authorised User means the Administrator or an End User, as applicable;
Availability means that Authorised Users can access and use all a Product’s Critical Functions as defined in the Product Schedule.
Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Sydney;
Claim means any claim, demand, action, proceeding or investigation of any nature or kind and includes the allegation or threat of a claim;
Confidential Information means all information, whether oral, graphic, electronic, written or in any other form, that is:
(a) or should reasonably be regarded as, confidential to the party to whom it belongs or relates; or
(b) not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement
CPI means the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics from time to time or, if that index is no longer published, an alternative published price index selected by Simpology acting reasonably;
Customer Data means Data Uploaded by the Customer;
Customer Hardware means any hardware used by the Customer to access or use a Product but excluding any hardware owned or operated by Simpology;
Customer Software Applications means any software used by the Customer in connection with a Product but excluding any software owned or operated by Simpology;
Customer Support Team means the Customer’s own technical support team;
Data means any data, information or content in electronic form;
Data Provider means a person who Uploads any Data to a Simpology Platform;
Data Breach means any unauthorised disclosure, use, processing, modification, access to or loss of Personal Information which has been Uploaded by the Customer to a Simpology Platform;
Data Recipient means a person who Downloads any Data from a Simpology Platform;
Disengagement Fees means the fees payable to Simpology for providing the Disengagement Services;
Disengagement Services means the services provided by Simpology at the request of the Customer to facilitate the transfer of a service provided by Simpology under the Agreement to another service provider or to the Customer itself;
Documentation means the standard user guides and any other documentation which Simpology provides to its customers relating to the use of the Products, as updated by Simpology from time to time;
Download means download, copy or transfer data from a Simpology Platform;
End Users means, in respect of the Customer, those employees, agents, contractors whom the Administrator authorises to access and use the Products;
Excluded Interruptions means any incidents, outages, interruptions or service faults which occur in relation to a Product which are caused by:
(a) third party hosting providers;
(b) third party API services;
(c) telecommunications services;
(d) Customer Software Applications;
(e) Customer Hardware;
(f) any Data;
(g) scheduled downtime for any Product;
(h) power outages or other power faults;
(i) an act or omission of the Customer or any personnel for whom the Customer is responsible;
(j) any failure by the Customer to comply with the Agreement or the requirements of the Documentation, or
(k) anything outside of Simpology’s control, including any Force Majeure Event.
Fault means any fault or defect relating to a Product;
Fees means in respect of a Product the Implementation Fee, Monthly Service Fee, any Disengagement Fees and any other fees specified in the Agreement for that Product;
Force Majeure Event means any act, event or cause including:
(a) an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, any denial of service attack, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, pandemic, quarantine, radiation or radioactive contamination;
(b) an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or
(c) a breakdown of plant, machinery or equipment, telecommunications failure or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material,
to the extent that the act, event or cause directly or indirectly results in a party (Affected Party) being prevented from or delayed in performing one or more of its obligations (Affected Obligations) and that act, event or cause is beyond the reasonable control of the Affected Party;
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Harmful Code means any computer program virus, trojan or other computer code that is harmful, destructive or disabling, including any such code which assists in or enables the theft, alteration, unauthorised access to, unauthorised disclosure of, or destruction or corruption of data, or which is designed to facilitate a denial of service attack;
Implementation Fee means for a particular Product, the fee specified in the Order Form for the provision of the Implementation Services for a Product;
Implementation Plan means a plan jointly developed by the parties pursuant to clause 4, which describes the tasks and responsibilities of each party in relation to the implementation and configuration of a Product for the Customer;
Implementation Service means the implementation and configuration services for the Products as described in the Agreement or as detailed in the Implementation Plan (if applicable);
Infringement Claim has the meaning provided by clause 16.2;
Insolvency Event includes an event where a receiver or receiver and manager is appointed over any of a party’s property or assets, an administrator, liquidator or provisional liquidator is appointed to a party, a party enters into any arrangement with its creditors, a party becomes unable to pay its debts when they are due, a party is wound up or becomes bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
(a) patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, rights in circuit layouts, plant breeder’s rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of these rights;
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and
(d) all renewals, divisions and extensions of these rights;
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction and includes the common law and equity as applicable from time to time, and any applicable industry standards and codes;
Loss means any loss, damage, liability, charge, expense, outgoing or cost (including legal or other professional costs) of any nature or kind;
Monthly Service Fee means the monthly service fee payable in respect of a particular Product, as specified in the Order Form;
MPSA means this Master Product and Services Agreement.
Order Form means the written Order Form (in the form specified by Simpology) which the Customer must complete to purchase one or more Products;
Password means a password, which when used in conjunction with a Username will enable an Authorised User to access and use a particular Product;
Personal Information has the meaning given to that term in the Privacy Act;
Privacy Act means the Privacy Act 1988 (Cth);
Product means a service nominated in an Order Form and described in the Product Schedule, and includes any non-standard additional features or service options purchased by the Customer in connection with such a service;
Privacy Laws means the Privacy Act 1988 (Cth) and all other laws in Australia which relate to the protection of Personal Information relevant to this Agreement;
Product Schedule means the product schedules attached to this MPSA which describe the Product nominated in the Order Form and which sets out any Product Specific Terms applicable to that Product;
Product Specific Terms means any terms applicable to the use or supply of a Product which are set out in the Product Schedule for that Product;
Product Start Date means for a particular Product, the date on which that Product is first made available for use by Simpology to the Customer;
Product Term means the term, commencing on the Product Start Date, during which Simpology will provide the Customer with a particular Product, as specified for the Product in the Order Form;
Regulator includes the Australian Competition and Consumer Commission and any other relevant Government Agency, or statutory body or authority;
Related Body Corporate has the meaning given to that expression in the Corporations Act 2001 (Cth);
Registered Lender means a Lender registered with Simpology for the purposes of making their product data available for distribution via the Simpology Products Engine.
Requested Date means the target supply commencement date for a Product as specified in the applicable Order Form;
RPO means the Recovery Point Objective, the maximum time period during which Simpology could lose data;
RTO means the Recovery Time Objective, the maximum time period it will take Simpology to get back up and running in the event of a disaster;
Service Levels means the service levels specified in Schedule 1;
Service Level Credits means the Fee rebates specified in Schedule 1 which are payable by Simpology for a failure by Simpology to achieve the Service Levels;
Severity Level means a prioritisation level as described in Schedule 1;
Simpology Infrastructure means the computer hardware, software and platform which Simpology uses to provide the Products;
Simpology Software means the Simpology owned software and third party software used by Simpology to provide a Product;
Supply has the meaning given to that expression in the GST Act;
Support Desk means the support desk made available by Simpology to the Customer to assist with the resolution of Support Requests;
Support Desk Service Hours means 9am to 5pm on any Business Day in Sydney;
Support Request means a request for assistance in resolving a Fault;
Support Services means those support services for the Products as described in Schedule 1;
Tax Invoice has the meaning given to that expression in the GST Act;
Taxable Supply has the meaning given to that expression in the GST Act; and
Upload means upload, transfer or copy Data to a Simpology Platform.
Username means a unique login identifier issued to an Authorised User, which when used in conjunction with a Password, will enable that Authorised User to access and use a particular Product;
In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) other grammatical forms of defined words or expressions have corresponding meanings;
(c) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(d) the word “person” includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(e) the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(f) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time; and
(g) wherever “include”, “for example” or any form of those words or similar expressions is used, it must be construed as if it was followed by “(without being limited to)”.
(a) If the Customer wishes to acquire a Product from Simpology, the parties will work together to prepare an Order Form for the purchase of the Product.
(b) The Order Form must be in the form specified by Simpology.
(c) The Order Form will identify:
(i) the relevant Product which the Customer wishes to purchase, together with the applicable Product Schedule(s);
(ii) the Implementation Services to be provided by Simpology;
(iii) the Product Term;
(iv) the Requested Date;
(v) the Implementation Fees and Monthly Service Fees; and
(vi) any other relevant details concerning the supply of the relevant Product; and
(vii) the Product Schedule(s) applicable to the Product.
(a) The following documents comprise the Agreement:
(i) the fully signed Order Form;
(ii) the Product Schedule (and any other relevant addendums) attached to this MPSA;
(iii) any policies which Simpology, from time to time, has notified the Customer as applying; and
(iv) any other document(s) that the parties have agreed in writing should form part of the Agreement; and
(v) this MPSA.
(b) If there is any inconsistency between the documents described in this clause, the provisions of the earlier listed document will prevail to the extent of the inconsistency.
All terms of any purchase order or similar document provided by the Customer, including but not limited to any pre-printed terms and any other terms that are in addition to or inconsistent with the Agreement will be null and void and deemed rejected by Simpology, even if Simpology does not expressly reject such terms when accepting a purchase order or similar document provided by the Customer.
The Agreement is a legally binding contract to purchase the Product and Implementation Services specified in the Order Form.
(a) Simpology will provide Implementation Services to the Customer for a Product in accordance with the requirements detailed in the applicable Order Form.
(b) The Customer must perform the tasks and discharge the responsibilities allocated to it by the Order Form or this Agreement.
The following activities and tasks are not included in the scope of the Implementation Services:
(a) remediation of existing issues within the Customer’s IT environment;
(b) provision of non-standard or Customer specific documentation;
(c) system upgrades for any Customer IT environment; and
(d) extraction, cleansing or migration of any Customer Data.
The supply of the Implementation Services and the Implementation Fees are subject to the following assumptions:
(a) the supply of the Implementation Services will be delivered without interruption or suspension by the Customer;
(b) the information provided by the Customer to Simpology prior to and in the course of Simpology providing the Implementation Services will be accurate and complete;
(c) the Customer will provide Simpology with reasonable access to the Customer’s IT personnel so that Simpology can obtain any information reasonably required to efficiently provide the Implementation Services;
(d) Implementation Services will be provided during business hours of 9am to 5 pm on any Business Day in Sydney. In the event the Customer requests that any aspect of Implementation Services be carried out outside these hours, an additional fee may be payable; and
(e) The Customer will install and configure all Customer Software Applications which the Customer wishes to use with the Product and the Customer Software Applications must be consistent with Simpology’s recommendations.
If the Implementation Services are complex, the parties will use reasonable endeavours to agree on an Implementation Plan. The Implementation Plan must set out in detail each task and responsibility allocated to Simpology and each task and responsibility allocated to the Customer. The parties must comply with their respective obligations under any agreed Implementation Plan.
If, in the course of developing the Implementation Plan or providing the Implementation Services, Simpology discovers new information which will require Simpology to expend more time and/or materials to provide the required Implementation Services or if any of the assumptions specified in clause 4.3 are not satisfied, Simpology may request a variation to the Implementation Fee. If the parties are unable to agree on the varied Implementation Fee within 10 Business Days’ of Simpology’s request, then either party may terminate the applicable Order Form. On such termination the Customer must pay Simpology for all Implementation Services provided up to the date of termination.
Subject to the Customer’s payment of all Fees, Simpology:
(a) will supply each Product; and
(b) permit the Customer and the Customer’s Authorised Users to, access and use each Product,
purchased by the Customer for the Product Term on and in accordance with the terms of the applicable Order Form.
Where the Order Form specifies a Requested Date for the commencement of a Product, Simpology will use reasonable efforts to make the Product ready for use by the Requested Date. The Customer acknowledges that the Requested Date is a target date and accepts that Simpology will not be liable to the Customer for any failure to achieve the Requested Date.
The Customer acknowledges that Simpology may from time to time add to, modify or enhance the features and functions of the Products as originally described in the Product Schedule. The Customer agrees that any such changes may be made to the Products without the need to obtain the consent of the Customer where the changes do not materially reduce the features and functions of the Product as described in the original Product Schedule which forms part of the Agreement.
Simpology is not responsible for any operational failure of a Product or any Fault that is caused by an Excluded Interruption.
The Customer acknowledges that Simpology does not warrant or represent that the Products:
(a) will operate free from faults, defects, errors or interruptions; or
(b) will be compatible with or will inter-operate with any particular computer system or item of equipment, software applications, operating systems or required data formats except as expressly specified by Simpology.
Simpology will use commercially reasonable efforts to provide 99.9% Availability for all Products. Service Availability is measured over a calendar Month and excludes downtime for scheduled maintenance and Excluded Interruptions.
The Customer warrants that it has made its own enquiries as to the suitability of the Products for its requirements and that it has not relied on any warranties or representations from Simpology in relation to the performance or suitability of the Products, except as stated in the relevant Order Form.
The Customer accepts full risk and responsibility for its use and the Authorised Users’ use of the Products and is responsible for all Fees due in relation to use of the Products, whether or not such use was authorised by the Customer.
(a) When using the Products, the Customer must comply with, and ensure that the Authorised Users comply with:
(i) the terms of the Agreement;
(ii) any reasonable guidelines or directions Simpology may issue from time to time;
(iii) the Documentation;
(iv) all applicable Laws; and
(v) the requirements or directions of Regulators.
(b) The Customer must not, and must ensure that the Customer’s Authorised Users do not, use the Products:
(i) in a manner which contravenes any applicable Law;
(ii) to breach the rights of any person, or infringe or adversely impact on the rights of any person;
(iii) to create, host, store, transmit or communicate any Data which is defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which brings Simpology or any of its agents into disrepute;
(iv) to create, host, store, transmit or communicate Data which contains Harmful Code;
(v) to send, allow to be sent, or assist in the sending of spam, to use or distribute email harvesting software, or otherwise breach the Spam Act 2003 (Cth);
(vi) in a manner which may infringe the Intellectual Property Rights of any person;
(vii) in any way which damages or interferes with Simpology’s Infrastructure or the supply of Products to other Simpology customers;
(viii) access or seek to access Simpology’s secure internal network or the computing resources or data of another Simpology customer; or
(ix) to perform or simulate denial of service attacks.
The Customer must not or attempt to:
(a) copy, duplicate, alter, modify or reproduce the Simpology Software by any means or in any form;
(b) publish, disclose or otherwise transfer the Simpology Software to a third party;
(c) merge all or any part of the Simpology Software with any other software;
(d) create derivative works from the Simpology Software; or
(e) reverse engineer, disassemble, decompile, decipher or otherwise decrypt the Simpology Software.
If the Customer or any Authorised Users use any Product in any way which is contrary to this clause 6, Simpology may, without prejudice to its other rights, suspend or restrict the supply of the relevant Product to the Customer. Simpology will endeavour to give the Customer prior notice of any such suspension or restriction, provided that if that is not possible, Simpology will give the Customer notice of the suspension or restriction as soon as is reasonably practicable.
Unless expressly provided in an Order Form, Simpology is responsible for making and maintaining appropriate back-up copies of the Customer Data on a frequent and regular basis. Simpology will maintain an RPO of 15 minutes and an RTO of 4 hours.
This Agreement commences on the date it is executed by both parties and will continue in effect until terminated pursuant to its terms.
(a) Each Product will be provided from the Product Start Date for the Product Term specified in the relevant Order Form.
(b) Upon expiry of the Product Term and renewal term (if any) specified in the Order Form, the Agreement will continue in effect until it is terminated by either party on giving at least 6 months prior written notice to the other party.
(a) Simpology will issue the Customer with Usernames and Password for each Authorised User and each Administrator.
(b) Administrators may generate Usernames and Passwords for new Authorised Users and manage the Passwords for existing Authorised Users.
(c) The Customer acknowledges and agrees that Usernames and Passwords may be used solely to facilitate access to the Products by the Customer and the Authorised Users and that the Customer will not, and will ensure the Authorised Users do not, disclose any Username or Password details to any person who is not the Customer or the Authorised User to whom the Username or Password details relate.
The Customer:
(a) must, if requested by Simpology, provide Simpology with details of each Authorised User (including their identity and contact details, and the Username assigned to each Authorised User) able to access and use the Products; and
(b) acknowledges that Simpology may but is not obliged to monitor an Authorised User’s use of the Products and may maintain user access logs.
(a) Simpology or its agents may collect Personal Information about the Authorised Users for the primary purpose of providing the Products to the Customer.
(b) The Customer must ensure that the Authorised Users are informed of and consent to its right to collect Personal Information about the Authorised Users.
Simpology will provide the Support Services specified in Schedule 1 for each Product.
(a) Schedule 1 to this Agreement describes each of the Service Levels which apply to the supply of the Support Services.
(b) The Service Level Credits specified in Schedule 1 are the Customer’s sole remedy for any failure by Simpology to supply the Support Services in accordance with the Service Levels. Subject only to the Customer’s entitlement to claim a Service Level Credit as set out in Schedule 1, the Customer may not make any claim against Simpology in connection with any failure to achieve a Service Level.
Simpology may, from time to time, conduct scheduled maintenance or perform updates in relation to the Products or the Simpology Platforms which may interfere with the provision of Products to the Customer. Where the scheduled maintenance will significantly change the user experience or is expected to cause an outage, Simpology will endeavour to give the Customer at least 48 hours notice before undertaking any work (unless the scheduled maintenance is urgent and it is impracticable to provide advance notice) and will use reasonable endeavours to perform all scheduled maintenance at times likely to minimise interference to the Customer and the Authorised Users.
(a) The Customer may report Faults by contacting the Support Desk.
(b) Before reporting a Fault, the Customer should take all reasonable steps to ensure that the Fault is with the Products and not caused by any Customer Hardware, Customer Software Applications, Data or any communications services or networking technology used by Simpology.
If the Customer Uploads any Data to a Simpology Platform, the Customer grants to Simpology and its Related Bodies Corporate a non-exclusive, perpetual, irrevocable and worldwide licence to:
(a) host, store, cache, copy and use that Data for the purpose of providing the Products to the Customer;
(b) permit Data Recipients as nominated by the Customer to Download the Data which was Uploaded by the Customer; and
(c) in accordance with Simpology’s Privacy Policy, create a de-aggregated and anonymised form of the Data to (“Anonymised Data”):
(i) use the Anonymised Data for the purposes of research, product development, product enhancement and product testing; and
(ii) commercialise the Anonymised Data for sale to third parties.
If the Customer Uploads any Data to a Simpology Platform, the Customer represents and warrants that:
(a) it holds and retains all right, title and interest in that Data or otherwise has all licences and approvals necessary to grant Simpology and its Related Bodies Corporate the licences granted to them in respect of that Data under clause 10.1; and
(b) the Data or its use by Simpology and its Related Bodies Corporate as permitted by the licences granted under clause 10.1 will not infringe the Intellectual Property Rights of any third party.
If the Customer Uploads any Data to a Simpology Platform, the Customer indemnifies, and must keep indemnified Simpology and its Related Bodies Corporate, against all Claims made by any Data Recipient or any third party alleging that the Data or its use as permitted by this Agreement:
(a) infringes the Intellectual Property Rights of any third party;
(b) breaches any right of confidentiality; or
(c) contains an error, fault, defect or inaccuracy.
As between Simpology and the Customer, the Customer or its licensors own all Data Uploaded by the Customer to a Simpology Platform.
In conjunction with clause 25 of this MPSA, the Customer acknowledges that APRA may, from time to time, and subject to third party consent (which Simpology will use reasonable endeavours to obtain) request reasonable access to the Customer’s Data and any corresponding documentation and/or data centres. Where such access has been requested, the Customer consents to that access.
a) The Customer acknowledges and accepts that Simpology cannot and has not verified, checked or validated the Data Uploaded to a Simpology Platform by a Data Provider or verified whether that Data or its use by the Customer as a Data Recipient will infringe any Intellectual Property Rights and that accordingly Simpology does not accept any liability to the Customer for the use of that Data.
(b) The Customer releases Simpology from all Claims that the Data Uploaded to a Simpology Platform by a Data Provider and Downloaded by the Customer as a Data Recipient:
(i) infringes the Intellectual Property Rights of any third party;
(ii) breaches any right of confidentiality; or
(iii) contains an error, fault, defect or inaccuracy.
Simpology products may include data and/or software from a Third Party.
(b) The Customer acknowledges and accepts that Simpology cannot and has not verified, checked or validated the Data Uploaded to a Simpology Platform by a Third Party or verified whether that Data or its use by the Customer as a Data Recipient will infringe any Intellectual Property Rights and that accordingly Simpology does not accept any liability to the Customer for the use of that Data.
(c) The Customer releases Simpology from all Claims that the Data Uploaded to a Simpology Platform by a Third Party and Downloaded by the Customer as a Data Recipient:
(i) infringes the Intellectual Property Rights of any third party;
(ii) breaches any right of confidentiality; or
(iii) contains an error, fault, defect or inaccuracy.
(a) Where the Customer Uploads any Data containing Personal Information using any Product the Customer must comply with all Privacy Laws.
(b) The Customer warrants to Simpology that where it Uploads any Data containing Personal Information using any Product that:
(i) it has collected that Personal Information in accordance with all Privacy Laws; and
(ii) it has all necessary consents and authorisations needed to Upload that Personal Information using the relevant Product.
(c) Where the Customer instructs Simpology to transfer Personal Information to a Data Recipient or enables settings in a Product to allow a Data Recipient to Download Personal Information, it warrants to Simpology that it is authorised to do so and that Simpology may act on those instructions or enable the Download without breaching any Privacy Laws.
(a) Simpology will comply with all applicable Privacy Laws when dealing with any Personal Information Uploaded by the Customer in the course of using a Product.
(b) Without limiting this clause, Simpology will:
(i) only use any Personal Information provided by a Customer for the purposes of performing its obligations under the Agreement (including supplying the Product); or
(ii) not disclose any Personal Information other than as authorised by the Customer or make Client Information available to external parties without the prior approval of the Customer (which the Customer may do by configuring applicable settings in a Product).
(c) To the extent that Simpology makes copies or keeps records of any Personal Information disclosed to it by the Customer under the Agreement:
(i) such copies and records will only be made to the extent necessary for the performance of its obligations under the Agreement; and
(ii) where requested to do so by the Customer or any individual, Simpology will return all copies of the relevant Personal Information or follow the Customer’s or individual’s reasonable instructions to destroy, erase or de-identify all tangible and intangible records of that Personal Information.
(a) If Simpology becomes aware of a Data Breach or suspects a Data Breach has occurred, Simpology must:
(i) notify the Customer as soon as it becomes so aware or has reason to suspect the Data Beach;
(ii) promptly provide the Customer with full details of, and assist the Customer in investigating, such actual or suspected Data Breach;
(iii) at the Customer’s request, conduct an expeditious assessment of any actual or suspected Data Breach;
(iv) co-operate with the Customer in any investigation in relation to such actual or suspected Data Breach; and
(v) use all reasonable efforts to prevent a recurrence of any actual Data Breach.
(b) Subject to any legally binding obligations imposed upon Simpology by Law:
(c) Unless the breach results from a material act or omission by Simpology, the Customer will be solely responsible for a breach of any Privacy Laws resulting from Data Uploaded by the Customer.
(a) Simpology will establish and maintain security measures which are designed to protect the Data Uploaded by the Customer which is in its possession or control against unauthorised or unlawful access or use or accidental loss or destruction.
(b) The Data uploaded by the Customer will not be stored in any location outside Australia without the Customer’s prior written consent.
(c) Where requested to do so by the Customer, Simpology will return the Data uploaded by the Customer to the Customer or follow the Customer’s reasonable instructions to destroy, erase or de-identify all records of that Dat
The data centre services used by Simpology to operate the Products and store any Data uploaded by the Customer will be provided by a Premium Level Data Centre Provider, unless otherwise agreed between the parties. For the purposes of this clause a Premium Level Data Centre Provider means any of the following data centre companies: Amazon, Microsoft, Google, Oracle, Telstra, Optus, Macquarie Telecom, Rackspace, Vocus, AAPT, Equinix or NextDC.
If Simpology becomes aware of a material information security control weakness relating to Data Uploaded by the Customer which Simpology expects it will not be able to remediate in a timely manner, it will notify the Customer as soon as possible.
Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 15.2, the Receiving Party must:
(a) keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
(c) not deliberately memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under the Agreement.
The obligations of confidentiality under clause 15.1 do not apply to any information that:
(a) is generally available to the public (other than by reason of a breach of the terms of the Agreement); or
(b) is required to be disclosed by any applicable Law or the order of any court.
(a) All Intellectual Property Rights in the Products and Documentation (including any Improvements to them) are vested in Simpology and are not transferred to the Customer under the Agreement.
(b) The Simpology Software used to supply the Products to the Customer is not licensed to the Customer under the Agreement.
(c) The Intellectual Property Rights in the Data Uploaded by the Customer are not transferred to Simpology under the Agreement. To avoid doubt, Simpology has a licence to access and use such Data in accordance with clause 10.1 of this MPSA.
(a) Subject to clause 16.2(d), Simpology indemnifies the Customer from and against any Claim by a third party that the Customer’s use of a Product in accordance with the Agreement constitutes an infringement of any third party Intellectual Property Rights (Infringement Claim).
(b) If an Infringement Claim is made by a third party against the Customer, Simpology must at its own expense and its option either:
(i) modify or replace the Product (or the infringing part thereof) so that it becomes non-infringing without adversely affecting the capability of the Product; or
(ii) procure for Customer the right to continue to use the infringing Product.
(c) The obligations of Simpology under this clause 16.2 are conditional on the Customer:
(i) promptly notifying Simpology of any Infringement Claim made or threatened against it;
(ii) providing Simpology with reasonable information and assistance to defend the Infringement Claim; and
(iii) allowing Simpology to control the defence of the Infringement Claim if requested by Simpology.
(d) The Customer accepts that the obligations of Simpology under this clause 16.2 extend to the use of the Product but do not extend to any Data contained in a Product which the Customer Uploaded to or Downloaded from a Simpology Platform or any Data which it otherwise obtains from or through the use of the Product.
Simpology warrants that:
(a) Simpology and its personnel will provide each Product, the Implementation Services and the Support Services purchased under an Order Form using due care and skill and in accordance with all Laws;
(b) the Products purchased under an Order Form will operate in substantial conformity with the Documentation and the Order Form;
(c) the Documentation is correct and accurate in all material respects;
(d) it has obtained all necessary licences, permissions and approvals or consents necessary to provide the Products under each Order Form; and
(e) each Product and its use in accordance with the applicable Order Form will not infringe the Intellectual Property Rights of any third party.
Simpology does not make any warranties or representations relating to the Intellectual Property Rights in any Data which a Customer Uploads to or Downloads to a Simpology Platform using the Product or the Data which it otherwise obtains from the use of the Product.
If Simpology fails to comply with any of the warranties set out in clause 17.1(a) or clause 17.1(b), Simpology will (as the Customer’s sole and exclusive remedy) rectify or resupply the Product, Implementation Service or Support Service, as applicable.
The Customer must pay any Implementation Fee agreed with Simpology pursuant to clause 4.
(a) Simpology may invoice the Customer for the Monthly Service Fee monthly in advance.
(b) The Monthly Service Fee will begin to accrue from the Product Start Date even though the Customer only commences using the Product from a later date.
Except as otherwise specified in this clause 18, all other Fees payable under an Order Form will be invoiced by Simpology monthly in arrears.
The Customer acknowledges and agrees that:
(a) Simpology will send all Tax Invoices to the Customer via email to the address set out in the applicable Order Form;
(b) any Fees that do not appear on the Customer’s Tax Invoice for a particular month may appear on future Tax Invoices due to processing procedures; and
(c) Simpology may re-issue any Tax Invoice if an error in that Tax Invoice is discovered after it is issued.
The Customer must pay Simpology all amounts invoiced by Simpology within 21 days of the date of the relevant invoice.
(a) Excluding any defaults in payment that are the subject of a bona fide dispute under clause 20, if the Customer defaults in the payment of any amounts payable under an Order Form, Simpology may do one or more of the following:
(i) suspend or terminate all or part of any of the Customer’s Products if the Customer fails to pay within 10 Business Days of receiving notice of failure to pay from Simpology until the amount outstanding is paid in full;
(ii) charge the Customer interest from the due date for payment at a rate of 2% above the Commonwealth Bank Corporate Overdraft Reference Rate or such other similar rate chosen by Simpology (acting reasonably);
(iii) engage a debt recovery agent to recover the amounts outstanding and charge the Customer for all reasonable expenses incurred to recover the outstanding amounts; or
(iv) institute legal proceedings against the Customer to recover the amounts outstanding.
(b) Simpology is not liable to the Customer for any loss, damage, cost or expense incurred in connection with Simpology exercising any of its rights under this clause 18.6.
(a) Simpology may increase the Fees payable under each Order Form on each Anniversary Date based on the percentage increase in CPI that has occurred during the 12 months preceding that Anniversary Date.
(b) If Simpology wishes to increase any of the Fees by a percentage which is greater than the increase in the CPI, Simpology must give the Customer notice of the increase at least 3 months prior to the Anniversary Date and, subject to this clause, the increased Fees will then take effect on the Anniversary Date. If the Customer does not agree to the increased Fee then:
(i) the Customer must notify Simpology at least 1 month prior to the Anniversary Date that it objects to the increased Fees;
(ii) if after the Customer has given notice the parties are unable to agree on the revised Fees by the Anniversary Date, the Customer may terminate the relevant Order Form by giving Simpology notice of termination prior to the Anniversary Date (the notice of termination must provide Simpology with 1 month’s notice of termination). If the Customer exercises its right to terminate the Order Form, the increased Fee will not apply to any period of the Order Form which occurs between the Anniversary Date and the date termination takes effect. If the Customer does not exercise its right to terminate the relevant Order Form prior to the Anniversary Date, the Fees notified by Simpology will apply from the Anniversary Date.
(a) In this clause, the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act.
(b) Unless expressly stated otherwise, the Fees payable for the Products and other sums payable under each Order Form are exclusive of GST. Simpology will issue the Customer with a valid Tax Invoice in respect of any Supply on which GST is payable. The Customer must pay to Simpology an additional amount equal to the GST payable on the Taxable Supply. That additional amount is payable at the same time as any part of the Fees for the Products are payable.
(c) If an Order Form requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(i) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
(ii) if the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,
such that after the Other Party meets the GST liability, it retains the Net Amount.
(a) If the Customer has a bona fide dispute about any matter relating to the Agreement (Dispute), the Customer must notify Simpology of the nature of the Dispute and reasons for the Dispute within 10 Business Days (Dispute Notice). If the Dispute relates to whether the whole or part of the Fees in a Tax Invoice are payable by the Customer (Disputed Amount), the Customer must pay any undisputed portion of that Tax Invoice and notify Simpology of the Disputed Amount and the reasons for the Dispute within 10 Business Days of receipt of the relevant Tax Invoice.
(b) Within 5 Business Days of receipt of a Dispute Notice (Initial Period), the Customer’s representative and Simpology’s representative must meet and use reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation.
(c) If the Customer and Simpology are unable to resolve the Dispute within the Initial Period, the Customer and Simpology must escalate the Dispute to their nominated executives.
(d) Within 10 Business Days of escalation in accordance with clause 20(c), the nominated executives must meet and use reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation. If the Dispute remains unresolved after 10 Business Days, the parties must endeavour to settle the Dispute by mediation administered by the Australian Disputes Centre (ADC).
(e) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC.
(f) While a Dispute is being resolved, the Customer and Simpology must continue to perform all obligations under the Agreement and the Customer must continue to pay all undisputed Fees until the Dispute is resolved.
(g) If the Dispute is submitted to mediation but is not resolved within 7 days of the commencement of the mediation, then either party may commence court proceedings in respect of the Dispute. This clause does not prevent either party from seeking urgent equitable relief in relation to a Dispute from an appropriate court.
(h) A party may not commence proceedings in respect of a Dispute until it has complied with the requirements of this clause 20.
The Customer may immediately terminate the Agreement by giving Simpology written notice if:
(a) Simpology breaches the Agreement and Simpology fails to remedy that breach within 30 days of receipt of a written notice from the Customer requiring that breach to be remedied; or
(b) Simpology becomes subject to an Insolvency Event.
Simpology may immediately terminate the Agreement by giving the Customer written notice if:
(a) the following events occur:
(i) the Customer fails to pay any amount owing to Simpology under an Order Form (which is not the subject of a bona fide dispute clause 20) when due;
(ii) Simpology has given notice to the Customer requesting the overdue amount be paid; and
(iii) the overdue amount is not paid within 10 Business Days of Simpology giving that notice.
(b) the Customer breaches a material term of the Agreement, including terms relating to the Customer’s use of a Product and:
(i) the breach is material and is not capable of remedy; or
(ii) the breach is capable of remedy, but the Customer fails to remedy that breach within 30 days of receipt of a written notice from Simpology requiring that breach to be remedied; or
(c) the Customer becomes subject to an Insolvency Event.
A party may terminate the Agreement, in part or in full, by giving the other party written notice if:
(a) the other party breaches the Agreement and fails to remedy that breach within 30 days of receipt of a written notice requiring that breach to be remedied; or
(b) the other party is the subject of an Insolvency Event.
Either party may terminate the Agreement (or an Order Form) for convenience at any time by giving the other party 90 days’ notice of termination.
The rights of termination set out in this clause 21 are in addition to any express rights of termination set out in an Order Form.
If the Agreement is terminated for any reason:
(a) after the effective date of termination, Simpology will stop providing the relevant Products to the Customer and the Customer will no longer have the right to use the Products set out in the Order Form;
(b) subject to clause 21.7, to the extent that any Customer Data is not in an anonymised and de-aggregated form, Simpology must delete all Customer Data from its Platforms 14 days after the effective date of the termination;
(c) the Customer must promptly (and no later than 7 days after the effective termination date) return to Simpology any Documentation in the Customer’s possession at the date of termination or confirm in writing that it has been destroyed;
(d) to the extent that a party is not required to retain another party’s Confidential Information by law, or for the purposes of another Order Form which has not been terminated, each party must promptly (and no later than 7 days after the effective termination date) delete or return to the other all Confidential Information of the other party which is in its custody, possession or control;
(e) the Customer will remain liable for any Fees incurred under that Order Form up to and including the date of termination; and
(f) Simpology will continue to provide the Customer with any other Products which have not been terminated (unless that termination makes it technically unviable to do so).
(a) If the Customer requires Disengagement Services at the time of termination of an Order Form, then:
(i) the Customer must within 7 days of the date when the termination of that Order Form becomes effective, notify Simpology that it requires Disengagement Services and specify the nature and extent of the Disengagement Services required;
(ii) subject to the Customer’s payment of the Disengagement Fees, Simpology will perform the Disengagement Services for the Customer; and
(iii) notwithstanding clause 21.6(b), the Customer Data will not be deleted by Simpology until such time as Simpology’s performance of the Disengagement Services is completed.
(b) Unless otherwise agreed by the parties, Simpology will only provide Disengagement Services for a maximum period of 3 months.
(c) The Disengagement Fees will be calculated at the same rates as specified in the applicable Order Form and, to the extent it is not specified in the Order Form, it will be calculated at Simpology’s then standard rates (which will be provided to the Customer).
Simpology may suspend the Products Services, without liability to the Customer if:
(a) any of the events described in clause 21.2 occurs;
(b) there is a threat or risk to the security of the Products or integrity of the Simpology Infrastructure;
(c) where required by Law or a Regulator;
(d) in order to prevent or investigate any suspected fraud or other illegal conduct by an Authorised User or any other person; or
(e) Simpology is otherwise entitled to do so under the Agreement.
(a) If Simpology suspends the Products under clause 22.1, and that suspension is reasonably attributed to the Customer or its Authorised Users, the Customer will remain liable for all Fees payable to Simpology under the relevant Order Form during the period of suspension.
(b) If the Customer’s Products have been suspended by Simpology for reasons which are reasonably attributed to the Customer or its Authorised Users, and Simpology reactivates the Products, a fee may be payable by the Customer to reactivate the Products.
(a) Simpology will maintain at all times during a Product Term and, if applicable, whilst Simpology is providing Disengagement Services, such insurance cover that is reasonable, appropriate and necessary having regard to the nature and extent of its obligations under this Agreement, which at a minimum, must include:
(i) public liability insurance; and
(ii) professional indemnity insurance.
(b) Upon request by the Customer, Simpology will provide to the Customer with a certificate of currency to evidence that it has such insurance within 10 Business Days of the Customer making a request from time to time.
(c) If Simpology fails to effect or maintain any of the required insurance policies, the Customer may, after giving Simpology 7 days prior written notice, make arrangements to put in place the relevant insurance and deduct the cost from any amounts otherwise payable to Simpology.
Simpology must keep proper accounts, records and time sheets in accordance with all applicable laws and the generally accepted accounting and records management standards relevant to the performance of Simpology’s obligations under this Agreement.
(a) The Customer, or its auditors, acting reasonably, may conduct audits of Simpology’s compliance with its obligations under this Agreement. The audits may not be conducted more than once in any 12 month period (except where a prior audit has indicated a material non-compliance with this Agreement or where the audit is required by APRA, any other regulatory body or an APRA Requirement).
(b) The Customer must give Simpology at least 2 weeks’ notice before commencing an audit except, where:
(i) Simpology has committed a material breach of this Agreement;
(ii) the audit is required urgently as a result of an APRA Requirement; or
(iii) the Customer is directed by APRA, or any other regulatory authority, to undertake an urgent audit.
(i) Simpology’s operational practices and procedures as they relate to this Agreement, including security procedures and other risk management systems and processes;
(ii) Simpology’s internal control systems, as they relate to the Products;
(iii) the accuracy of Simpology’s invoices and reports in relation to the Fees charged under this Agreement; and/or
(iv) Simpology’s compliance with its obligations under this Agreement.
(i) access the premises of Simpology to the extent relevant to the performance of this Agreement or necessary or convenient to conduct the audit; and
(ii) require the provision by Simpology of records and information about the supply of the Products in a data format and storage medium acceptable to the Customer.
(e) Simpology must provide the Customer with access to any system and any information technology infrastructure that it uses to deliver the Products, to the extent necessary for the Customer to exercise its rights under this clause, and provide the Customer with any reasonable assistance requested by the Customer.
(f) The Customer must ensure that:
(i) audits performed under this clause; and
(ii) the exercise of the general rights granted by clause 25.1(d), by the Customer,
do not unreasonably delay or disrupt in any material respect Simpology’s performance of its obligations under this Agreement.
(g) Each Party must bear its own costs of an audit.
(h) Nothing in this clause entitles the Customer or its auditors to audit, access or obtain any information held by Simpology relating to any customer (or any customer’s clients) of Simpology other than the Customer and the Customer’s clients. To the extent, if any, that the Customer or its auditors in fact obtain or access any such information, it will be deemed to be Confidential Information of Simpology for the purposes of clause 15 of this Agreement (and the Customer must ensure that its auditors comply with that clause in relation to it).
Where any failure or delay by a party (Affected Party) in the performance of its obligations (except payment obligations) under the Agreement is caused, directly or indirectly, by a Force Majeure Event:
(a) the Affected Party must as soon as practicable give the other party written notice of that fact;
(b) the Affected Party is not liable for that failure or delay;
(c) the Affected Party’s obligations under the Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event; and
(d) if the Force Majeure Event continues for more than 30 consecutive days and while it continues, any party other than the Affected Party may, at its sole discretion, terminate the relevant Order Form by giving written notice to the Affected Party and all other parties (if any).
Simpology must:
(a) develop and maintain a business continuity and disaster recovery plan which is consistent with industry best practice and provides for the continued supply of the Products in the event of a disaster;
(b) provide a copy of its business continuity and disaster recovery plan to the Customer on request;
(c) test its business continuity and disaster recovery plan at least once every 12 months and make any changes to the plan to address any issues identified by that test; and
(d) comply with, and perform any services or actions required under, its business continuity and disaster recovery plan at all times during the Product Term of each Order Form, including in the event of a disaster (as defined in that plan).
Any representation, warranty, condition, guarantee or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law. Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.
To the fullest extent permitted by law, the liability of Simpology for a breach of a non excludable guarantee referred to in clause 28.1 is limited, at Simpology’s option, to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
(a) To the maximum extent permitted by law, neither party is liable to the other party for any Consequential Loss suffered or incurred by the other party in relation to or arising from this MPSA or any Order Form.
(b) In this clause Consequential Loss means:
(i) any loss of profit, loss of use, loss of opportunity, loss of or corruption of Data, loss of business reputation, loss of savings and loss of revenue; or
(ii) any Loss which cannot fairly and reasonably be considered to arise naturally, according to the usual course of things, from the relevant breach or event, fact, matter or circumstance.
(a) Subject to clause 28.4(b) but otherwise to the maximum extent permitted by law, the maximum aggregate liability of each party for all losses suffered or incurred by the other party in relation to or arising from an Order, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the actual amount paid to Simpology by the Customer in the last 12 months immediately preceding the event giving rise to the liability.
(b) In respect of the Customer, the limitation of liability in clause 28.4(a) does not apply to:
(i) the indemnity for Infringement Claims set out in clause 16.2;
(ii) breach of clause 9 (Support and Faults);
(iii) breach of clause 13 (Privacy);
(iv) breach of clause 15 (Confidentiality); or
(v) any fraud, negligence or wilful misconduct by the Customer.
(c) In respect of Simpology, the limitation of liability in clause 28.4(a) does not apply to any fraud, negligence or wilful misconduct by Simpology.
(a) The Customer acknowledges and agrees that Simpology may, from time to time, engage any of the subcontractors set out at Schedule 2 of this Agreement to provide certain services for or on behalf of Simpology.
(b) To the extent that a subcontractor has been included in an Order Form, the obligations under subclause (c) below do not apply to Simpology.
(c) In addition to any subcontractors identified in the relevant Order Form, Simpology may, from time to time, notify the Customer of any other subcontractors that Simpology engages for such services. Simpology will notify the Customer before subcontracting the performance of a material part of the obligation to supply the Products under this Agreement.
(d) Simpology shall remain fully responsible and liable under this Agreement for any and all acts or omissions of a subcontractor as if they were the acts or omissions of Simpology.
(A) are substantially consistent with the terms of this Agreement;
(B) will enable Simpology to perform all of its obligations under this Agreement;
(C) include an audit clause which is substantially consistent with clause 25; and
(D) include clauses addressing privacy, data security and confidentiality; which are substantially consistent with the terms of this Agreement.
Each party may assign its rights under the Agreement to:
(a) a Related Body Corporate; or
(b) a third party that acquires all or substantially all of its business,
without the need to obtain the other party’s consent.
(a) The Customer must not novate any of its rights or obligations under the Agreement without Simpology’s prior written consent (not to be unreasonably withheld).
(b) Simpology may novate any of Simpology’s rights or obligations under the Agreement and this clause shall constitute deemed consent to such action.
The documents described in clause 3.1 as forming the Agreement constitute the entire understanding and agreement of the parties in relation to the purchase of each Product except to the extent the parties expressly agree in writing to incorporate any other documents into the Agreement.
(a) Any notice or demand given pursuant to the Agreement must be in writing and must be delivered, posted, emailed or transmitted by facsimile to the person and address nominated in the relevant Order Form.
(b) Any such notice shall be deemed to be received:
(i) in the case of delivery, at the time of delivery;
(ii) if served by post, at the expiration of 48 hours from the time of posting notwithstanding that it may subsequently be returned through the post office unclaimed;
(iii) in the case of email, on production of a confirmed receipt message indicating the recipient has accessed the email; or
(iv) in the case of a facsimile transmission, on production of a transmission control report indicating transmission without error.
(c) Any party may at any time designate a substitute address, email or facsimile number in Australia by giving notice in writing to the other party.
The Agreement is governed by and must be construed in accordance with the laws applying in New South Wales. The Customer and Simpology submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
If this Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same document.
A failure, delay, relaxation or indulgence by Simpology in exercising any power or right conferred under the Agreement does not operate as a waiver of the power or right.
A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.
A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.
(i) the fully signed Order Form;
(ii) the Product Schedule (and any other relevant addendums) attached to this MPSA;
(iii) any policies which Simpology, from time to time, has notified the Customer as applying; and
(iv) any other document(s) that the parties have agreed in writing should form part of the Agreement; and
(v) this MPSA.
Clauses 10, 11, 12, 13, 15, 16, 21, 28 and 29 survive the termination or expiry of the Agreement, as well as any other clauses which by their nature should survive termination or expiry.
Schedule 1
Scope of Support Services
Simpology will provide the Customer with the Support Services for each Product as described in this Schedule, unless otherwise specified in a Product Schedule.
Simpology is not required to provide the Customer with Support Services in relation to matters or issues associated with Customer Software Applications, Customer Hardware, telecommunications services used by the Customer or Customer networking issues.
- Simpology Support Desk
Simpology will:
(a) provide the Customer with access to the Support Desk to assist Customer’s internal support team with any Support Requests relating to the Products;
(b) receive Support Requests by telephone, live chat, or email;
(c) record each Support Request;
(d) actively manage Support Requests and endeavour to resolve actions and issues for open Support Requests in a timely manner; and
(e) ensure the Support Desk is available for the lodgement of Support Requests during Support Desk Service Hours.
Customer Support Team
(a) The Customer must:
(i) establish and maintain a Customer Support Team with sufficient personnel and expertise to provide Level 1 Support to Authorised Users who require assistance with technical issues or Faults; and
(ii) notify Simpology of the names and contact details for its Customer Support Team.
(b) The Customer must:
(i) provide its Authorised Users with Level 1 Support (Simpology is not responsible for providing Level 1 Support to Authorised Users); and
(ii) ensure that all support enquiries made by Authorised Users are directed to the Customer Support Team.
(c) The Customer Support Team must use reasonable efforts to address or resolve issues before requesting technical support services from Simpology.
(d) The Customer Support Team must promptly lodge a Support Request with the Simpology Support Desk if the Customer Support Team is unable to address or resolve a Support Request.
(e) The Customer must reasonably nominate a suggested Priority for each Support Request (in accordance with the designation levels specified in this Schedule).
(f) The Customer must provide the Support Desk with a competent description of the Support Request, the conditions under which it can be reproduced, and such diagnostic information as Simpology reasonably requests for diagnosis of any Fault in a timely manner.
(g) The Customer must test any workaround, fix or diagnostic update Simpology provides for a Support Request in accordance with Simpology’s instructions in a timely manner.
Support Request Handling
(a) Simpology will be responsible for prioritising each Support Request in accordance with the following Support Request prioritisation guidelines (Severity Levels):
The tables below map the priority of a Support Request based on the impact and urgency that unresolved service interruption is having on the business of the Customer:
Severity Level | Description |
Critical | A Fault that has critical impact on the ability of Customer to conduct business and includes any of the following: 1) complete outage of the Product; or 2) users cannot access or use the Product. |
Medium | A Fault which substantially and adversely affects the ability of the Customer to conduct business and includes any of the following: 3) an essential feature of the Product has failed to operate; or 4) the relevant Product is available to users, but one or more essential functions are not available; or 5) the relevant Product is available for use, but with substantially degraded performance. |
Low | A Fault which does not substantially and adversely affect the ability of Customer to conduct its business, but which results in the inability of non-essential aspects of the Product to perform correctly. |
(b) Simpology will:
(i) ensure that its co-ordinators assign the appropriate technical support staff to resolve each Support Request;
(ii) escalate Support Requests to third parties as required;
(iii) monitor, track and report progress of all Support Requests until closure; and
(iv) provide regular updates to the Customer Support Team until the response to each Support Request is completed and finalised.
Service Levels
(a) Unless otherwise specified in an Order Form, Simpology will endeavour to respond to Service Requests (Response Time), provide continuous communication updates (Ongoing Feedback), provide a work-around (if available) for Faults (Work Around Time) and provide a resolution for any Faults (Fix Time) reported by Customer to the Simpology within the timeframes specified in the following table:
Priority Level | Response Time | Ongoing Feedback | Work-Around Time | Fix Time |
Critical | 15 minutes | Every 1 hour | 2 hours | 5 days |
Medium | 30 minutes | Every 2 hours | 4 hours | 10 days |
Low | 24 hours | Every 2 days | 1 week | 4 weeks |
(b) Response Time shall be calculated as the elapsed time between the time the Customer notifies a Service Request to the Support Desk and the time when Simpology acknowledges receipt by email or telephone. If the Customer notifies a Service Request to the Support Desk outside of Support Desk Service Hours, the Customer will be deemed to have reported the Fault to Simpology at the next commencement of Support Hours.
(c) Work Around Time shall be calculated as the elapsed time between the time the Customer notifies a Service Request to the Support Desk and the time when Simpology provides a work around to the Customer.
(d) Fix Time shall be calculated as the elapsed time between the time the Customer notifies a Service Request to the Support Desk and the time when Simpology provides a resolution for the Fault.
(e) In each case the time which elapses outside of Support Desk Service Hours will not be calculated.
(f) The following Services Levels are to be met by Simpology for Availability:
Description | Availability Period | Service Level |
General Availability | 24 hours a day, 365 days a year | 99.9% |
Service Credits
Priority Level | Key Performance Indicator | Service Credit |
Critical | 100% of Service Requests which are acknowledged by Simpology within the target Response Times | 5% |
100% of work arounds provided by Simpology within the target Work Around Times | 5% | |
Medium | 90% of Service Requests which are acknowledged by Simpology within the target Response Times | 5% |
90% of work arounds provided by Simpology within the target Work Around Times | 5% | |
Low | 80% of Service Requests which are acknowledged by Simpology within the target Response Times | 5% |
80% of work arounds provided by Simpology within the target Work Around Times | 5% | |
N/A | Availability meets or exceeds the target Service Level | 10% |
(b) The Service Credit is the percentage of the Monthly Service Fee for the relevant Product.
(c) The total amount of the Service Credits payable by Simpology to the Customer in respect of any Month for a single Product will not exceed 20% of the Monthly Service Fee for that Product.
(d) If the Monthly Service Fee is variable according to the quantity of the Product supplied, the Monthly Service Fee for the purpose of this clause 6 will be deemed to be the average Monthly Service Fee paid by the Customer over the relevant Month for that Product.
Schedule 2
For the purposes of clause 29.1(a) of the MPSA, Simpology may from time to time engage any of the below subcontractors to provide certain services for or on behalf of Simpology:
(a) Corzent Edge Pvt Ltd (PV00243709); and
(b) Bortive Trading CC t/a The Gemini Solution (South African Registration Number 2010/147339/23).
This document sets out the various requirements relating to requirements by the Australian Prudential Regulation Authority (“APRA”). Any capitalised terms not defined in this document have the meaning given to them in the Master Product and Services Agreement.
APRA audit requirements
(a) This clause applies in addition to the audit rights in set out in clause 26.1 of the MPSA, where an audit is required as a result of an APRA Requirement (“APRA Audit”).
(b) Simpology must, in connection with an APRA Audit:
(i) at the request of the Customer (solely for the purposes of complying with any APRA Requirements) or APRA:
(A) provide to the requesting Party documents or information in Simpology’s possession or control relating to the arrangements and activities performed under the Agreement;
(B) permit the requesting Party or its representatives to conduct on-site visits at Simpology’s premises and to access any documents or information relating to the Customer and, at the request of APRA, to meet with APRA; and
(C) permit the Customer or APRA to conduct an independent audit of its activities under this Agreement to be conducted within a specified period, such period to be reasonable in the circumstances; and
(ii) comply with any other request from APRA in connection with the Customer or this Agreement.
(c) Where Simpology receives any request from the Customer or APRA under clause 26.2(b)(i) or APRA under clause 26.2(b)(ii) of the MPSA (each an “APRA Request”), Simpology must, to the extent permitted by law:
(i) where the request was received directly from APRA, immediately notify the Customer in writing of the details of the APRA Request;
(ii) comply with the APRA Request unless otherwise directed by the Customer; and
(iii) not disclose to any person other than the Customer that APRA has made such APRA Request or that it has conducted any on-site visit or other activity in respect of the Customer, without the prior written consent of the Customer.
(d) Simpology may charge the Customer for its reasonable costs directly related to compliance with the obligations in clauses 26.2(b) and 26.2(c) of the MPSA.
(e) Nothing in this clause entitles the Customer or APRA to audit, access or obtain any information held by Simpology relating to any customer (or any customer’s clients) of Simpology other than the Customer and its clients. To the extent, if any, that the Customer in fact obtains or accesses any such information, it will be deemed to be Confidential Information of Simpology for the purposes of clause 15 of the MPSA.
Access to Customer Data
In conjunction with clause 25 of the MPSA, the Customer acknowledges that APRA may, from time to time, request reasonable access to the Customer’s Data and any corresponding documentation and/or data centres. Where such access has been requested, the Customer must not unreasonably withhold consent to that access.
Business Continuity Plan
Simpology will, in accordance with clause 72 of the MPSA:
(a) develop and maintain a business continuity and disaster recovery plan which is consistent with industry best practice and provides for the continued supply of the Products in the event of a disaster;
(b) provide a copy of its business continuity and disaster recovery plan to the Customer on request;
(c) test its business continuity and disaster recovery plan at least once every 12 months and make any changes to the plan to address any issues identified by that test; and
(d) comply with, and perform any services or actions required under, its business continuity and disaster recovery plan at all times during the Product Term of each Order Form, including in the event of a disaster (as defined in that plan).