General Terms & Conditions

MASTER SERVICES AGREEMENT

This Master Services Agreement (Agreement) is entered into between:

  • Sudo Online Pty Ltd trading as Hypergen (ABN 22 167 452 806) (Hypergen), and

  • any client that executes an Order Form referencing this Agreement (Client).

This Agreement forms part of and is incorporated into each Order Form. By executing an Order Form, the Client agrees to this Agreement. No separate execution of this Agreement is required.

1. Scope and governance

1.1 This Agreement applies to all services Hypergen provides under Order Forms and Statements of Work (SOWs).
1.2 If there is any inconsistency between this Agreement and an Order Form/SOW, the Order Form/SOW prevails to the extent of the inconsistency.
1.3 Services may include IT consulting, software development, use of AI tools, and related professional services.
1.4 Unless expressly stated in an Order Form/SOW, Hypergen provides services on a best-efforts basis and does not guarantee uptime, availability, performance, or security outcomes.

2. Client responsibilities and dependencies

2.1 The Client must provide timely access to personnel, systems, environments, licences, data, premises and information needed for Hypergen to deliver the services.
2.2 The Client is responsible for change approvals, internal processes, and ensuring its environments are backed up and secured.
2.3 If the Client delays or fails to perform its responsibilities, Hypergen may extend timelines and charge for additional effort reasonably incurred (including rescheduling and re-onboarding effort).

3. Commercial terms

3.1 Fees and payment structures (fixed price, time and materials, milestones) are set out in each Order Form/SOW. Fees are exclusive of GST and other taxes.
3.2 Invoices are payable by the due date stated. Interest may be charged on overdue amounts at the RBA Cash Rate plus 6% per annum. The Client must pay invoices without set-off or deduction.
3.3 If any invoice remains unpaid 14 days after due date, Hypergen may suspend services on 5 days’ written notice. Suspension does not affect amounts already due.
3.4 Changes to scope, deliverables, timelines or assumptions must be agreed in a written Change Order before work proceeds.
3.5 For time and materials or ongoing services, Hypergen may adjust standard rates on 30 days’ written notice (for example, at renewal or annually).
3.6 If the Client cancels or reschedules a booked resource with less than 3 business days’ notice, Hypergen may charge 50% of the booked time.
3.7 Reasonable travel and out-of-pocket expenses are billable at cost (plus a 10% administration charge) where incurred and agreed in advance.
3.8 Microsoft Partner of Record. The Client agrees Hypergen may nominate itself as Partner of Record, Digital Partner of Record (DPOR) or Claiming Partner of Record (CPOR) with Microsoft for services Hypergen delivers. Unless separately agreed, Hypergen does not intend to resell licences; the Client may continue to procure licences through its existing vendors.

4. Delivery, acceptance and support (including AI)

4.1 Delivery is performed with reasonable skill and care. Unless an Order Form/SOW states otherwise, deliverables are provided as is and without warranty.
4.2 Acceptance. Deliverables are deemed accepted on the earlier of: (a) written acceptance; (b) the Client using the deliverable in a live/production context; or (c) 10 business days after delivery if no material non-conformity is reported.
4.3 If the Client reports a material non-conformity within the acceptance period, Hypergen will address it using any available prepaid hours; otherwise, remediation is billed at standard rates.
4.4 Support or ongoing maintenance is only provided if included in a Support Schedule or SOW. No service levels, response times or uptime/security guarantees apply unless expressly stated.
4.5 Use of AI. The Client consents to Hypergen using AI tools and services to accelerate or improve delivery. AI outputs can change over time due to vendor updates, model drift or data changes. The Client is responsible for budgeting ongoing maintenance, tuning, retraining or replacement of AI components where required, and for implementing appropriate human review and approvals of AI-generated outputs.

5. Intellectual property and third-party materials

5.1 Each party retains ownership of its pre-existing intellectual property.
5.2 Hypergen retains ownership of all tools, templates, methods, frameworks, libraries and other reusable components created or used in delivery (Reusable IP).
5.3 Deliverables created for the Client remain Hypergen’s property. Hypergen grants the Client a perpetual, worldwide, non-exclusive, non-transferable licence to use deliverables for its internal business purposes only. The Client must not sublicense, distribute, provide access to, or reverse-engineer source code unless permitted in the Order Form/SOW.
5.4 Third-party and open-source materials included in deliverables are subject to their own licence terms. The Client is responsible for complying with those terms.

6. Confidentiality, privacy and data

6.1 Each party must keep the other party’s confidential information confidential and use it only for the purposes of this Agreement.
6.2 At the Client’s request, Hypergen can provide a separate mutual non-disclosure agreement to supplement this clause.
6.3 Each party must comply with applicable privacy laws when handling personal information. The Client is responsible for providing all notices and consents necessary for Hypergen to process Client data lawfully.
6.4 The Client is responsible for maintaining appropriate backups of its systems and data.
6.5 Data handled by Hypergen may be stored or transferred outside Australia unless the Client specifies residency requirements before project commencement and the parties agree any resulting changes to scope, timeline and fees.

7. Risk allocation and insurance

7.1 To the maximum extent permitted by law, all statutory or implied guarantees, warranties and conditions are excluded. If any non-excludable guarantee applies under the Australian Consumer Law, Hypergen’s liability is limited (at Hypergen’s option) to resupplying the services or paying the cost of having the services resupplied.
7.2 Liability cap. Hypergen’s maximum aggregate liability for all claims arising out of or in connection with the services (whether in contract, tort including negligence, statute or otherwise) is capped at 100% of the total fees actually received by Hypergen from the Client in the three months immediately before the event giving rise to the first claim. Multiple claims do not increase this cap.
7.3 Excluded loss. Hypergen is not liable for indirect, incidental, special or consequential loss, loss of data, loss of profit, revenue, goodwill or anticipated savings.
7.4 Carve-outs. Nothing in this Agreement excludes liability to the extent it cannot be excluded by law.
7.5 Client indemnity. The Client indemnifies Hypergen against third-party claims, losses and costs arising from: (a) Client data, instructions or environments; (b) the Client’s breach of law or this Agreement; or (c) alleged infringement caused by materials the Client provides.
7.6 Insurance. Hypergen maintains professional indemnity insurance of AUD $5 million per claim and public and products liability insurance of AUD $20 million per occurrence. The Client must maintain insurance appropriate to its risks and provide evidence on request.

8. General

8.1 Subcontracting. Hypergen may subcontract any part of the services and remains responsible for its subcontractors.
8.2 Force majeure. Neither party is liable for delay or failure caused by events beyond reasonable control (including utility or cloud outages, third-party API changes, vendor deprecations, natural disasters and government action).
8.3 Termination. Either party may terminate this Agreement or any SOW on 14 days’ written notice, or immediately for material breach not remedied within 14 days. On termination, hours worked are billable and prepaid fees are non-refundable. If requested, Hypergen may provide transition assistance for up to 30 days on a time-and-materials basis.
8.4 Non-solicitation. Neither party may solicit or employ the other’s personnel involved in the services for 12 months after the last SOW without written consent and payment of a placement fee equal to 15% of their total annual remuneration.
8.5 Publicity. Hypergen may identify the Client by name and logo as a customer unless the Client objects in writing.
8.6 Assignment. The Client must not assign or novate this Agreement without Hypergen’s consent. Hypergen may assign to an affiliate or in connection with a merger, sale or corporate reorganisation.
8.7 Notices. Notices may be given by email to the addresses nominated in the Order Form/SOW and are taken to be received on the next business day after sending.
8.8 Survival. Clauses relating to fees, IP, confidentiality, privacy, risk allocation and any terms which by their nature should survive will continue after termination.
8.9 Governing law. This Agreement is governed by the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of its courts.