Schedule 1 – Definitions Schedule

1. Master Services Agreement

Where a term used in the Master Services Agreement appears in title case, then that term has the meaning given to it per the below.

Additional Services has the meaning given to it in clause 4.4 of the Agreement and as otherwise provided in a Proposal.

Agreement has the meaning given to it in clause 2.1 of the Master Services Agreement.

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, Liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether (a) it is present, unascertained, immediate, future or contingent; (b) it is based in contract, tort, statute or otherwise; or (c) it involves a third party or a party to this Agreement.

Commencement Date means the commencement date set out in the Reference Schedule, or if no date is indicated, the date the Master Services Agreement was signed by the last of the Parties.

Confidential Information means, in relation to each Party (for the purposes of this definition, the “Discloser”), all information disclosed by or on behalf of the Discloser, concerning or relating to (a) Client Data; (b) the fee and remuneration structure set out in the Agreement; (c) know-how, trade secrets, ideas, marketing strategies, operational information, technical information and financial information; (d) proprietary software tools, business processes, project management methodologies and tools, software testing and verification methods, solution architecture models and solutions; (e) the business affairs (including products, services, customers and suppliers); and (f) other information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential; but excluding any such information: (a) which is publicly known; (b) which is disclosed to the other Party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or (c) which is developed independently by other Party without reliance on any of the confidential information.

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

Client Technology means the Intellectual Property Rights of the Client which are created independently of the Agreement.

Client Data means all data and information uploaded by the Client (or its Personnel) to storage infrastructure utilised by Cymax for the provision of the Services to the Client.

Cymax Technology means all Intellectual Property Rights created, owned or licensed by Cymax, excluding the Client Technology.

Data Hosting Services means the hosting of the Client’s data by Cymax, as further set out in Data Hosting Services Module or as otherwise provided in a Proposal.

Data Hosting Services Module means the document which sets out the terms and conditions applicable to the Data Hosting Services set out in a Proposal, available at https://cymax.com.au/data-hosting-services-module-20140704/. For the avoidance of doubt also includes Schedule 1 – Definitions Schedule as applicable.

Definitions Schedule means the definitions contained in this Schedule 1 – Definitions Schedule to this Agreement.

Exceptional Circumstance means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under the Agreement. Such circumstances include, but are not limited to, the following: (a) adverse changes in government regulations; (b) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster; (c) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party; (d) strikes or industrial disputes; (e) materials or labour shortage; and/or (f) acts or omissions of any Network Providers (such as internet, telephony or power provider).

Excluded Event includes but is not limited to the following and will not be covered by the Support Services: (a) Cymax Scheduled Maintenance (Clients will be provided with at least 2 Business Days prior Notice before any Scheduled Maintenance is undertaken by Cymax); (b) performance issues relating to firmware updates, upgrades, revisions to third party software or hardware; (c) events of Exceptional Circumstances; and (d) faults, service outages or disruptions caused by the wilful or negligent acts of the Client and its Personnel or third party equipment, software or Networks.

Expiry Date has the meaning given to it in the Reference Schedule.

Expiry Notice has the meaning given to it in clause 3.3 of the Master Services Agreement.

Fault means an interruption or degradation in the Services or any other error or fault which inhibits the normal operation of the Services, excluding an Excluded Event.

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

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

Insolvency Event means an event of bankruptcy or insolvency, an assignment for the benefit of creditors, the appointment of a receiver, receiver and manager, provisional liquidator, liquidator and official manager or any similar person to any assets of a person, a failure to comply with a statutory demand, or anything else which occurs which is analogous or has a substantially similar effect, under the laws of any jurisdiction, or the person is insolvent or unable to pay its debts as and when due.

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

Law includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by-law whether commonwealth, state, territorial or local.

Liabilities means any liabilities, debts or obligations, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person. A reference to Liability has a corresponding meaning.

Loss means any loss (including Consequential Loss), Claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise. A reference to Losses has a corresponding meaning.

Master Services Agreement means this document, being the master services agreement and its Services Modules, for the avoidance of doubt this also includes Schedule 1 – Definitions Schedule as applicable.

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

Network means the interconnected group of third party equipment, infrastructure or similar (including mobile or fixed telecommunications, power and utility equipment and infrastructure) which used, or relied upon, in order to provide the Data Hosting Services.

Network Provider means a third party provider of all or part of the Network, including a “carrier” or “carriage service provide”, as those terms are defined in the Telecommunications Act 1997 (Cth).

New IP means any and all Intellectual Property Rights created in the course of, or connection with, the performance of the Services.

Party means either Cymax or the Client (as the context requires) and Parties means both of them.

Personal Information has the meaning attributed to it under Privacy Law.

Personnel means in relation to a Party, any related body corporate, Related Entity, employee, officer, agent, contractor, professional adviser of that Party.

Privacy Law means the Privacy Act 1988 (Cth), as amended from time to time.

Proposal means the document prepared by Cymax which describes the various Services to be provided by Cymax, details of the scope of the Services required to be provided by Cymax to the Client, as well as the licence limitations and Service Fees applicable to the Services for this Agreement, as amended by the Parties from time to time in writing.

Query means a request for information regarding the Services.

Rate Card means the rates for the Additional Services, as set out in the Proposal or Cymax’s standard rates which are in effect from time to time as notified by Cymax to the Client.

Related Entity means a person which is a related entity of Cymax or the Client within the meaning of that term in section 9 of the Corporations Act 2001 (Cth).

Scheduled Maintenance means preventative or emergency maintenance in relation to any equipment, infrastructure or software used, or relied upon, to provide the Services, but only where such maintenance is scheduled in advance of such maintenance being conducted and this scheduling information is made reasonably available to the Client.

Services means the IT services to be provided by Cymax from time to time during the Term of the Agreement, as provided in the Proposal, which shall include but are not limited to the provision of Data Hosting Services, Software Services and Support Services.

Service Fee means the fee payable by the Client for the Services, as set out in the Proposal and may include, but is not limited to any Additional Services charged in accordance with the Rate Card or any other fees charged for the Services. Cymax may revise the Service Fee and where applicable provide an updated Service Fee set out in any subsequent invoice.

Service Levels means the target services levels set out in the applicable Services Module Service Level Credits means those service level credits as set out in paragraph 2.9 of the Support Services and Service Levels Module, which shall be deducted from the Service Fees at those times when Cymax has not met the performance availability of the Services and provided at all times the Client has paid all current and outstanding Service Fees.

Services Module means a document which sets out the terms and conditions applicable to the particular Services set out in a Proposal, including Software Services (https://cymax.com.au/software-services-module-20140704/), Data Hosting Services (https://cymax.com.au/data-hosting-services-module-20140704/), Support Services and Service Levels (https://cymax.com.au/support-services-and-service-levels-module-20140704/), for the avoidance of doubt this also includes Schedule 1 – Definitions Schedule as applicable.

Service Order has the meaning given to it in paragraph 2.5(c) of the Support Services and Service Levels Module.

Site(s) means those site(s) at which on-site Support Services will be provided (where applicable), as further set out in a Proposal.

Software Services means the provision of third party software by Cymax, Client owned software or software licensed by the Client, or as otherwise provided to the Client in accordance with Software Services Module or as further set out in a Proposal.

Software Services Module means the document which sets out the terms and conditions applicable to the Software Services set out in a Proposal, available at https://cymax.com.au/software-services-module-20140704/. For the avoidance of doubt this also includes Schedule 1 – Definitions Schedule as applicable.

Support Services means those support services which are provided to the Client, as set out in the Support Services and Service Levels Module or as otherwise detailed in the Proposal.

Support Services and Service Level Module means the document which sets out the terms and conditions applicable to the Support Services and Service Levels set out in a Proposal, available at https://cymax.com.au/support-services-and-service-levels-module-20140704/. For the avoidance of doubt this also includes Schedule 1 – Definitions Schedule as applicable.

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

Term means the duration of the Agreement, until it is terminated or expires in accordance with the terms of the Agreement.

Transition Out Services means the services to be provided by Cymax, at a cost to the Client, for the orderly transition of responsibility for the Services to the Client or another person, as otherwise set out in the applicable Services Module.

User means any employee or authorised officer of the Client that is licensed to use the Services under this Agreement.

User Seats means the number of Users capable of registration for use with the Services, which is set out in the Proposal.

2. Support Services and Service Levels Module

Where a term used in the Support Services and Service Levels Module appears in title case and is not defined below, then that term has the meaning given to it in Section 1 above.

In this document: https://cymax.com.au/support-services-and-service-levels-module-20140704/

Module means this document being the Support Services and Service Levels Module to the Master Services Agreement.

Rebate Request Form means a form prepared by the Customer detailing:

(a) the date the Fault arose;

(b) full details of the Fault, including but not limited to:

(1) the duration of time the Fault has had an impact on the Customer’s business;

(2) and the effect the Fault has had on the Customer’s business;

(c) the date the Customer notified Cymax of the Fault in accordance with the provisions of paragraph 2.5 of this Module and when the Customer submitted a Service Order to Cymax;

(d) the response provided by Cymax;

(e) whether the Fault was rectified;

(f) the date the Fault was rectified; and

(g) any other information reasonably required by Cymax.

Services Availability means the performance availability of the Services, as otherwise set out in this Module.

Support Desk means the contact support desk or portal through which service requests or issues are to be formally reported by the Customer and logged by Cymax, the details of which are set out in this Module.

Support Notification means the notification process in relation to a Fault or Query about the Services reported by either the Customer or Cymax, which includes but is not limited to the Customer providing Cymax with a Service Order. Support Notifications are classified a level in accordance with paragraph 2.6 of this Module.

Transition Out Plan means the plan for the continuity and orderly transition of responsibility for the Services to the Customer or another person, as mutually agreed to by the Parties in writing from time to time during the Term.

Support Portal means the website support portal which is provided by Cymax in order for the Customer to submit any Service Orders and request for Support Services and to access and update its account information.

3. Software Services Module

Where a term used in the Software Services Module appears in title case and is not defined below, then that term has the meaning given to it in Section 1 above.

In this document: https://cymax.com.au/software-services-module-20140704/

Cloud Licence has the meaning given to it in paragraph 2.4 of this Module.

Customer Products means those approved hardware products via which the Services will be provided to the Customer.

Module means this document being the Software Services Module to the Master Services Agreement.

Third Party means any third party to the Agreement, other than any Related Bodies Corporate of a Party to the Agreement.

4. Data Hosting Services Module

Where a term used in the Date Hosting Services Module appears in title case and is not defined below, then that term has the meaning given to it in Section 1 above.

In this document: https://cymax.com.au/data-hosting-services-module-20140704/

Data means the data storage allocation specified in the Proposal.

Module means this document being the Data Hosting Services Module to the Master Services Agreement.

Service Rules means the rules in respect of the Data Hosting Services of Cymax, as amended in accordance with paragraph 2.9(b) of this Module (which includes, but is not limited to, rules relating to fair and appropriate use of the Data Hosting Services).