Terms and Conditions Last updated: January, 2021

Terms of Service

1. Definitions and interpretation

Definitions

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

  • (a) any information that is specifically designated by any of them as confidential;
  • (b) any information which, by its nature, may reasonably be regarded as confidential;
  • (c) any information relating to any:
    • (i) agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
    • (ii) customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
    • (iii) Intellectual Property Rights, of any of them; and
  • (d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.

Copyright Act means the Copyright Act 1968 (Cth).
Corporations Act means the Corporations Act 2001 (Cth).
Event of Default means any of the following on the part of the Client:

  • (a) committing any material or persistent breach of this agreement;
  • (b) repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
  • (c) misleading the Company in any material way; and/or
  • (d) an insolvency event occurring in respect of the Client, except where laws prevent an insolvency event from becoming an event of default.

Fees has the meaning given in clause 3.1.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

GST has the same meaning given to that expression in A New Tax System (Goods and Services Tax) Act 1999.

In-Scope Work means work that has been expressly and specifically designated as being within the scope of the Services.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

  • (a) liabilities on account of Tax;
  • (b) interest and other amounts payable to third parties;
  • (c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
  • (d) all amounts paid in settlement of any Claim.

Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.

Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in paragraph 3 of Schedule 1.

Relevant IP means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Company’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:

  • (a) using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
  • (b) in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Client under this agreement or otherwise;
  • (c) as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
  • (d) in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.

Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

Services means the services that the Company has agreed to provide to the Client under the terms of this agreement, as more particularly described in paragraph 1 of Schedule 1.

Start Date means the date of this agreement or such other date as the parties may agree in writing.

Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.

Interpretation

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:

  • (a) headings in this agreement are for convenience only and do not affect its interpretation or construction;
  • (b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
  • (c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
  • (d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
  • (e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
  • (f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
  • (g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
  • (h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
  • (i) a reference to writing includes any communication sent by post, facsimile or email;
  • (j) a reference to time refers to time in Sydney, New South Wales and time is of the essence;
  • (k) all monetary amounts are in Australian currency;
  • (l) a reference to a “liability” includes a present, prospective, future or contingent liability;
  • (m) the word “month” means calendar month and the word “year” means 12 calendar months;
  • (n) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
  • (o) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
  • (p) a reference to any thing is a reference to the whole and each part of it;
  • (q) a reference to a group of persons is a reference to all of them collectively and to each of them individually;
  • (r) words in the singular include the plural and vice versa; and
  • (s) a reference to one gender includes a reference to the other genders.

3. Pricing and payments

3.1 In consideration for the provision of the Services by the Company, the Client will pay the Company the fees specified in Schedule 1 (the Fees).

3.2 The Client must pay the Fees to the Company in full on or before the date that is 7 days after the Client’s receipt of the relevant invoice.

3.3 Unless otherwise stated, the Fees are exclusive of GST and the Client is required to pay all applicable GST amounts in addition to the Fees.

4. Confidentiality

4.1 Subject to clauses 4.3 and 4.4, the Client must:

  • (a) keep all Confidential Information confidential;
  • (b) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
  • (c) not disclose or make available any Confidential Information in whole or in part to any third party;
  • (d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Company); and
  • (e) ensure that any and all Representatives:
    • (i) comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Client; and
    • (ii) do not do, or omit to do, anything which, if done or omitted to be done by the Client, would constitute a breach of this agreement by the Client.

4.2 The Client shall be responsible for, and liable to the Company in respect of, the actions or omissions of any and all of its Representatives in relation to the Confidential Information as if they were the actions or omissions of the Client.

Exceptions

4.3 The Client may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.

4.4 Subject to clause 4.5, the obligations in clause 4.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Client’s possession):

  • (a) was already known to the Client on a non-confidential basis prior to the time of its first disclosure by the Company to the Client, unless it came to be so known as a direct or indirect result of having been:
    • (i) unlawfully obtained by the Client, whether from a third party or otherwise; or
    • (ii) received by the Client from a third party that owed a confidentiality obligation to the Company in respect of that information at the time of such receipt, in circumstances in which the Client knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Company;
  • (b) is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
    • (i) in circumstances that constitute a breach of this agreement by the Client (for the avoidance of doubt, including any breach by the Client of its obligations under clause 4.1(e) to ensure that its Authorised Third Party Clients comply with the obligations in this agreement as if they were parties to this agreement in the place of the Client); or
    • (ii) that owed a confidentiality obligation to the Company in respect of that information at the time of such disclosure, in circumstances in which the Client knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Company;
  • (c) is, after the time of its first disclosure by the Company to the Client, lawfully received by the Client from a third party and the Client reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Company;
  • (d) is required by law or court order to be disclosed, provided that the Client must:
    • (i) promptly notify the Company in writing in advance of any such disclosure, if reasonably practicable; and
    • (ii) reasonably assist the Company in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Company;
  • (e) is independently developed by the Client without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
  • (f) is authorised for release or use by the written pre-approval of the Company but only to the extent of such written pre-approval.

4.5 The exceptions in clause 4.4 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.

5. Non-disparagement

5.1 Subject to clause 5.2, on and from the date of this agreement, each party must not:

  • (a) make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
  • (b) cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so, and must take all reasonable steps to prevent its Representatives from doing so.

5.2 Clause 5.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:

  • (a) promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
  • (b) reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

6. Intellectual Property

6.1 The parties agree that all Relevant IP will be owned by, and vest in, the Company.

Assignment

6.2 The Client hereby assigns, transfers and conveys to the Company all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Company on and from creation.

Client’s duty to assist the Company

6.3 The Client must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Company’s title to any Relevant IP, in Australia or in such other countries as the Company may require at its discretion.

Permitted use

6.4 The Client may not use or reproduce any Relevant IP or any other Intellectual Property Rights of the Company or any of the Company’s customers, clients or suppliers without the Company’s prior written approval, except in the performance of its duties under this agreement.

Moral rights

6.5 The Client consents to the doing of any acts, or making of any omissions, by the Company or any of the Company’s employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:

  • (a) not naming the Client as the author of a Work; or
  • (b) amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Client is not named as the author of the amended or modified Work,

whether those acts or omissions occur before, on or after the date of this agreement. The Client acknowledges that its consent pursuant to this clause 6.5 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.

7. Liability and remedies

Acknowledgments

7.1 The Client acknowledges and agrees that it is responsible for verifying the accuracy of all information that is prepared and submitted to all third parties, regulators, and Government Agencies.

7.2 The assistance provided by the Company in relation to the preparation of the information does not derogate from the Client’s obligation to ensure that all such information is accurate and appropriate for the Client’s business and requirements.

Indemnity

7.3 The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company harmless from and against, any and all Losses that may be suffered by the Company and which arise, directly or indirectly, in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct in the provision of the Services.

Indemnities continuing

7.4 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

7.5 To the maximum extent permitted by law, the Company and its Representatives expressly:

  • (a) (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:
  • (b) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against the Company under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Company’s sole discretion):
    • (i) re-supply of the Services;
    • (ii) payment of the costs of supply of the Services by a third party; or
    • (iii) the refund of any amounts paid by the Client to the Company under this agreement in respect to the Services,
      even if the Company has been advised of the possibility of such Losses,

and the Client acknowledges and agrees that the Company holds the benefit of this clause 7.5 for itself and as agent and trustee for and on behalf of each of its Representatives.

Force majeure

7.6 To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company and the Company shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that the Company holds the benefit of this clause 7.6 for itself and as agent and trustee for and on behalf of each of its Representatives.

Remedies for breach

7.7 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 4 (Confidentiality) or clause 5 (Non-disparagement) damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.

8. Termination

Termination for breach

8.1 The Company may terminate this agreement immediately by notice to the Client if an Event of Default occurs in respect of the Client.

8.2 If the Company commits any material or persistent breach of this agreement, the Client may (but is not obliged to) provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Client may terminate this agreement with immediate effect upon providing the Company with a further notice of termination in writing.

Effect of termination

8.3 In the event of any termination of this agreement in any circumstances and for any reason whatsoever:

  • (a) the Client will remain liable to pay all Fees accrued up to and including the date of termination, whether or not invoiced prior to the date of termination; and
  • (b) the Company will send to the Client a final invoice for the balance of any unbilled Fees accrued up to and including the date of termination.

Accrued rights

8.4 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

8.5 The obligations of the parties under clause 4 (Confidentiality), clause 5 (Non-disparagement), clause 6 (Intellectual Property) and this clause 8 will survive the termination of this agreement.

9. General

Further assurances

9.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Third parties

9.2 This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Costs

9.3 All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.

Entire agreement

9.4 This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

9.5 If a provision of this agreement is invalid or unenforceable in a jurisdiction:

  • (a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
  • (b) that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

9.6 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

Amendment

9.7 This agreement may not be varied except by written instrument executed by all of the parties.

Assignment

A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.

Counterparts

9.8 This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.

Electronic exchange

9.9 Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

9.10 If a party delivers an executed counterpart of this agreement under clause 9.9:

  • (a) it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
  • (b) in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.

Governing law and jurisdiction

9.11 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.

9.12 The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

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