• ATISFY PTE. LTD is now referred to as the Service Provider
  • You and/or your company is now referred to as the Client

The Service Provider carries on the business of providing digital marketing services. The Service Provider has agreed to provide the Services to the Client and the Client has agreed to procure the Services from the Service Provider in accordance with the Standard Terms and Conditions and any Statements of Work agreed between the parties during the term of work together and in situations where deliverables are expected to be given later or payments are taking place later. Any work done between you and the service provider remains bound to these terms indefinitely unless specified otherwise in this document (eg. transfer of IP).

Both parties are agreeing to the terms and services upon signing the contract and to ensure the client understands the terms and services a tick box will also be provided to help you acknowledge your understanding and acceptance of these terms.

  1. HOW TO READ THIS AGREEMENT
    • MEANING OF CAPITALISED WORDS AND PHRASES

Capitalised words and phrases used in these terms and conditions have the meaning given:

  • to that word or phrase in the Statement of Work;
  • by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
  • in the definitions in clause 20 of this agreement.
  • ORDER OF PRECEDENCE

Unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and a Statement of Work, these terms and conditions will prevail to the extent of such inconsistency, except for any Special Conditions set out in a Statement of Work, which will prevail over these terms and conditions to the extent of such inconsistency.

  1. DURATION AND RENEWAL OF THIS AGREEMENT
    • This agreement will commence on the Start Date, and continues in effect until the End Date set out in clause 1 (Term), unless earlier terminated in accordance with clause 16, or extended in accordance with clause 3(b).
    • The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
    • If any services are supplied by the Service Provider:
      • not being subject to a Statement of Work, but also not being subject to any other written agreement between the parties; or
      • after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, then

the terms of this agreement will apply for those services.

  • The duration of any Statement of Work is indicated by the dates set out in the Statement of Work.
  1. ORDERING AND PERFORMANCE OF SERVICES
    • ORIGINAL STATEMENT OF WORK

From the Start Date, the Service Provider will perform the Services in accordance with Statements of Work agreed between the parties in accordance with this clause 4.

  • WHAT IS A STATEMENT OF WORK

For the purposes of this agreement, a ‘Statement of Work’ is either:

  • a document agreed and signed by both parties in the form of the Statement of Work template attached at Schedule 1, which addresses the matters contemplated in that form; or
  • an email sent by the Service Provider to the Client, which:
    • addresses the matters contemplated in the form of the Statement of Work template attached at Schedule 1; and
    • is agreed to by the Client before any deadline for agreement specified by the Service Provider.
  • ADDITIONAL STATEMENTS OF WORK
    • The parties may agree to Statements of Work under these terms and conditions during the Term.
    • These terms and conditions will apply to all Statements of Work agreed between the parties.
    • If the Client requests an additional Statement of Work, the Service Provider will provide a quote in accordance with the Statement of Work template.
    • The Client will be taken to have accepted an additional Statement of Work if the Client informs or otherwise indicates to the Service Provider that the Client wishes for the Service Provider to proceed with the performance of the additional Statement of Work.
    • An additional Statement of Work will not limit, terminate or otherwise affect any other current Statements of Work between the parties, including if a particular Statement of Work is terminated.
  • CHANGES TO STATEMENTS OF WORK
    • The Client must pay a ‘change in scope fee’, in an amount reasonably determined by the Service Provider (Change Fee), for changes to Services requested by the Client which alter the scope set out in the relevant Statement of Work and require the Service Provider to perform additional work or incur additional costs (Changes).
    • Unless otherwise agreed in writing, the Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
    • The Service Provider will only be required to perform Changes, if:
      • the Service Provider agrees in writing to perform the Changes;
      • the Client confirms in writing that they wish for the Service Provider to proceed with the Changes and the relevant Change Fee; and
      • the Client pays the Change Fee, in accordance with clause 1 as if it was a Fee.
    • FIXED PRICE VS RETAINER SERVICES

Fixed Price Services

  • Where a Statement of Work indicates that the Service Provider provides Services at a fixed price (Fixed Price Services) the Fixed Price Services commence on the Start Date as specified in the Statement of Work and continue unless and until the Statement of Work is terminated in accordance with its terms or the Fixed Price Services are completed

Retainer Services

  • Where a Statement of Work indicates that the Service Provider provides Services on a retainer or ongoing basis (Retainer Services), the Retainer Services commence on the Start Date as specified in the Statement of Work and continue for the minimum term as specified in the Statement of Work (Minimum Term) unless and until the Statement of Work is terminated in accordance with its terms.
  • Except as otherwise agreed between the parties, following the expiry of the Minimum Term (and each Renewed Term), Retainer Services will automatically continue to renew for a further term equal to the Minimum Term (Renewed Term) unless either party provides the other party with at least 30 days’ written notice prior to the expiry of the then current term that the Retainer Services are to be terminated. Termination under this clause will be effective as at the end of the then current Minimum Term or Renewed Term as the case may be.
  • The Client may terminate Retainer Services at any time by providing the Service Provider written notice, however, the termination will only take effect at the end of the then current Minimum Term or Renewed Term as the case may be.
  • DATES AND TIMES
    • Any dates or times agreed in relation to the Services, including those set out in a Statement of Work, are indicative only and included as a guide for when the Services are expected to be performed.
    • The Service Provider may, due to various reasons beyond its control, need to make reasonable adjustments to any such dates or times.
  • REVIEW OF SERVICES

The Client is ultimately responsible for approving all Services that the Service Provider sends to the Client for review, including proofs and ensuring accuracy and suitability. Whilst every effort will be made for accuracy, the Client’s approval to proceed constitutes acceptance of full responsibility for any errors and omissions within the Services. The Service Provider will not accept liability for errors overlooked at the stage of final proofing.

  • THIRD PARTY TERMS AND CONDITIONS
    • The Client acknowledges and agrees that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to any part of the Services.
    • The Service Provider will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:
      • the Client must immediately notify the Service Provider if they do not agree to the Third Party Terms; and
      • if the Service Provider does not receive a notice in accordance with clause 8(b)(i) the Client will be taken to have accepted those Third Party Terms, and the Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
    • The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect the Service Provider’s ability to meet Key Dates and / or Times.
  • DISCLAIMER

The Client acknowledges and agrees that:

  • any information provided to the Client as part of or in connection with the Services is general in nature and may not be suitable for the Client’s circumstances; and
  • it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.

 

  1. CLIENT OBLIGATIONS
    • PROVIDE INFORMATION

The Client must promptly provide the Service Provider with all documentation, information and assistance reasonably required by the Service Provider to perform the Services. Any delays may delay the provision of the Services and may incur additional charges. Where the Client fails to supply this information to the Service Provider, and that prevents the progress of the Services, the Service Provider has the right to invoice the Client for any part or parts of the Services already completed as well as any additional fees the Service Provider considers reasonably appropriate in respect of the delay.

  • ACCESS

The Client agrees to provide the Service Provider with access to:

  • the Client’s premises and Personnel;
  • the Client’s CPC Advertising account (including login details and passwords);
  • the Client’s website, where the Service Provider is providing Services that involve making updates or changes to the Client’s website; and
  • any other third party or other accounts used by the Client (including login details and passwords),

as reasonably required by the Service Provider to perform the Services.

  • COMPLIANCE WITH LAWS

The Client agrees that it will not by receiving or requesting the Services:

  • breach any applicable laws, rules and regulations (including any applicable privacy laws); or
  • infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
  1. FEES AND PAYMENT
    • FEES
      • The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in a Statement of Work.
      • To the maximum extent permitted under the Competition and Consumer Act 2010(Cth) any Fees paid in accordance with this agreement are non-refundable.
      • If there is no Due Date set out in a Statement of Work in relation to a Fee, that Fee must be paid at the time set out the relevant invoice issued by the Service Provider. If there is no time set out in an invoice, that Fee must be paid within 14 days of the date the Service Provider provides the Client with an invoice in respect of the Fees.
    • INVOICES

The Service Provider will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.

  • LATE PAYMENT

If the Client fails to pay the Fees in accordance with clause 6.1, or Marketing Spend in accordance with clause 6.4, the Service Provider reserves the right to:

  • suspend the provision of the Services to the Client, and the Service Provider will not be responsible for any Loss suffered by the Client because of this;
  • charge the Client interest calculated at 12% per annum which will accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed; and
  • seek to recover the amount due by referring the matter to a collection agency.
  • EXPENSES

Marketing spend

  • In relation to Marketing Services, the Client must pay the Service Provider the ‘marketing spend’ agreed in a Statement of Work, in the amounts and at the times set out in a Statement of Work, in order for the Service Provider to provide those Services (Marketing Spend).

Other expenses

  • Unless otherwise agreed in a Statement of Work (and not including Marketing Spend expenses), the Service Provider’s expenses will be borne by the Service Provider.
  • If approved by the Client prior to them being incurred, the following expenses will be borne by the Client:
    • travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by the Service Provider in connection with the Services; and
    • any third party costs incurred by the Service Provider in the course of performing the Services.
  • GST

Unless otherwise indicated, amounts stated in a Statement of Work do not include GST. In relation to any GST payable for a taxable supply by the Service Provider, the Client must pay the GST subject to the Service Provider providing a tax invoice.

  • CARD SURCHARGES

The Service Provider reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

  • GENERAL
    • All Fees must be paid into the bank account nominated by the Service Provider or by any other means specified by the Service Provider, in the currency set out in the Statement of Work. If no currency is set out in the Statement of Work, then all amounts specified in that Statement of Work will be Australian Dollars.
    • The Client must pay the Service Provider all Fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.
  • DIRECT DEBIT AUTHORITY

If the parties have agreed that a Fee will be paid via a direct debit arrangement, then the Client irrevocably authorises the Service Provider to debit the Fees during the term from the Client’s nominated bank account/credit card/debit card (“Account”), on or about the due date for payment without notice to the Client. The Client must ensure that the Account details are up to date at all times and the Client must notify the Service Provider in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Service Provider to deduct all other fees and charges payable by the Client to the Service Provider under this Agreement from the Client’s nominated Account. The Client warrants that the Client is the owner or has the right to use any Account details provided to the Service Provider.

  • INTERNATIONAL FEES

The Client acknowledges and agrees that if it is located outside of Australia, then payment of the Fee could incur additional bank fees at the discretion of the Client’s bank and the Service Provider’s bank. The Service Provider is not liable for any additional bank transaction fees that may be charged or for varying currency conversion rates. The Client must ensure that all Fees and other amounts are paid in cleared funds, and that the Service Provider receives the full amount of the Fees payable to it without deduction or charge by any bank or payment provider.

  1. MARKETING SERVICES
    • MARKETING SERVICES

In relation to any Services involving marketing, creative or public relations services (Marketing Services) the Client acknowledges and agrees that:

  • the Service Provider makes no promise or guarantee regarding the effectiveness of any Marketing Services, including as to specific ranking, position in search engine or any other results, but instead by using its professional skills aims to deliver an incremental improvement of the Client’s results;
  • in order to provide the Marketing Services the Service Provider may require access to the accounts of third party platforms owned by the Client (Client Accounts) or the Client’s website and the ability to make changes to those. The Client authorises the Service Provider to access and make modifications to the Client Accounts and the Client’s website for the purposes of supplying Marketing Services;
  • the effectiveness of the Marketing Services may be affected by circumstances outside the Service Provider’s control including:
    • the Client Accounts that are used by the Service Provider to perform the Marketing Services being cancelled or disabled on a temporary or permanent basis; or
    • the platform that is used by the Service Provider to perform the Marketing Services changes its functionality or policies or algorithms; or
    • the Client makes changes to its website or Client Accounts which is the subject of the Marketing Services which adversely affects the ranking of the website or the ability for the Service Provider to provide the Marketing Services;

and the Service Provider will not be liable for any loss or damage suffered by the Client arising from such circumstances.

  • Although the Client may specify a marketing budget, the Service Provider is not liable for any under spend or overspend, within reason, of that budget that ultimately occurs and the Client is solely liable for the payment of all third-party fees incurred in connection with the Services.
  • MARKETING SPEND
    • The Client acknowledges and agrees that, while the Service Provider will use all amounts paid to it as Marketing Spend to provide the Services (and not for another purpose), the Service Provider will not be required to use all the Marketing Spend it receives for a given month in that particular month.
    • The Client acknowledges and agrees that the Service Provider may choose to apportion the Marketing Spend over the term of a Statement of Work so that, in any given month, the amount spent on the Services may be over or under the Marketing Spend paid to the Service Provider for that month.
  1. WEB DESIGN SERVICES

In relation to any Services involving web development services, including building or customising websites or online applications (Web Apps) the following conditions will apply unless otherwise agreed between the parties in writing:

  • the Service Provider reserves the right to determine the choice of programming language(s) used in the Web Apps;
  • the Service Provider will not be responsible for inputting text, images or other content on an ongoing basis, and the Services do not include ongoing management and uploading of content onto the Web Apps; and
  • the Service Provider will not guarantee that any Web Apps will be responsive in relation to all browsers, platforms and devices (including in relation to mobile devices), only the browsers, platforms and devices set out in a Statement of Work, or that may be reasonably expected from time to time.
  1. TIMING
    • As part of a Statement of Work or in the course of the Service Provider performing the Services, the parties may agree a schedule for providing certain Services and Milestones, including estimated dates of completion, deadlines or schedules (Schedules) which may be stated in a Statement of Work or elsewhere.
    • The Service Provider will use its best efforts to meet these Schedules, however whilst the Service Provider always endeavours to meet deadlines, sometimes it is not possible for the Service Provider to meet a deadline and the Client agrees that any deadlines the Service Provider agrees to (including those set out in Schedules) are estimates only and non-binding on the Service Provider.
    • The Service Provider reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to provide:
      • timely feedback;
      • amounts for marketing spend; or
      • other information reasonably requested by the Service Provider in order to perform the Services.
  1. REVIEWS & MODIFICATIONS
    • Where the Service Provider creates something for the Client as part of the Services (Development Services), on completion of any Development Services (or parts thereof) the Client will be notified and have the opportunity to review it.
    • The Client must notify the Service Provider in writing within 7 days of receiving notification of completion as to whether it is satisfied with the Development Services provided, or whether they require any modifications. Unless otherwise stated in a Statement of Work, one round of modifications is included in the Fee for the Development Services (where applicable), provided that the modifications are in respect of matters specifically contemplated in the Statement of Work, and do not constitute an extra service (as determined by the Service Provider acting reasonably).
    • In the event the Client fails to notify the Service Provider that it requires modifications within 7 days, then the Client will be deemed to have accepted the Development Services.
    • In the event that the Client notifies the Service Provider that it requires more than one round of modifications, or any modifications constitute extra services, or that the Client requests modifications after it has accepted the Development Services (whether the acceptance actual or deemed), the Client must pay any fees notified by the Service Provider to the Client for such services, which shall be calculated in accordance with the Service Provider’s then current hourly rates.
  2. CONFIDENTIALITY, PRIVACY AND RESTRAINT
    • PRIVACY
      • The parties must comply with:
        • if applicable, their respective obligations under the Privacy Act 1988(Cth); and
        • the Service Provider’s privacy policy as in force from time to time.
      • The Service Provider will keep the Client informed of any changes to the Service Provider’s Privacy policy during the term.
    • RESTRAINT

For the duration of any Statement of Work, and for one year thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any Personnel of the Service Provider with which the Client had contact during the course of the Services.

  • CONFIDENTIAL INFORMATION

The parties will not, during, or at any time after, the Term, disclose Confidential Information directly or indirectly to any third party, except:

  • with the other party’s prior written consent;
  • as required by Law; or
  • to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
  • BREACH

If either party becomes aware of a suspected or actual breach of clause 11.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of clause 11.2.

  • PERMITTED USE

A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.

  • RETURN

On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.

  • ADDITIONAL DISCLOSEES

Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 6.1. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.

 

  1. INTELLECTUAL PROPERTY
    • DEFINITIONS

In this clause and any Statement of Work, the following terms have the following meanings in relation to Intellectual Property Rights:

(a)               Existing Material means Material, other than New Material;

(b)               New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and

  • Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
  • EXISTING MATERIAL
    • Except to the extent otherwise stated in a Statement of Work or in this clause 12:
      • each party retains ownership of the Intellectual Property Rights in its Existing Material; and
      • nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
    • The Client grants to the Service Provider (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
    • The Client warrants that the Service Provider’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify the Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
    • The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
      • such Existing Material is incorporated into the New Material; and
      • such use is reasonably required for the Client to enjoy the benefit of the Services.
    • NEW MATERIAL
      • Unless otherwise stated in a Statement of Work, Intellectual Property Rights in New Material will be assigned to the Client (and will become the Client’s property), on and from the latest of the following dates:
        • the date all Fees payable by the Client under this agreement are paid to the Service Provider in cleared funds;
        • the date the Client starts using the New Material; and
        • the date the Services under the relevant Statement of Work are completed in their entirety.
      • In the event that this agreement is terminated prior to the completion of the relevant Services, the Service Provider will retain ownership of such New Material and is not obliged to provide it to the Client, unless the entire Fee specified in a Statement of Work has been paid.
      • The Client grants to the Service Provider a perpetual, irrevocable, transferable, worldwide and royalty free licence (including the right to sublicense) to use, copy, modify and adapt the New Material.
    • GENERAL

The Client acknowledges and agree that:

  • the Service Provider may develop other websites, marketing materials, applications, software and pages (Marketing Materials) that have a similar look and feel to any Marketing Materials the Service Provider develops for the Client, and that the Service Provider may provide others with services that are similar to the Services that are provided to the Client, and the Client must not object to this;
  • the Service Provider may incorporate images and other representations of the Services that the Service Provider has provided to the Client in advertising, marketing, or competition materials at any time, including following completion of the Services; and
  • the Service Provider retains its right to be credited with authorship of the Services.
  • OPEN SOURCE

The Client acknowledges and agrees that:

  • the Service Provider may use templates, other third party intellectual property and open source code in providing the Client with the Services, and the owner of such other property (which may be the Service Provider or a third party) retains all copyright and ownership in that property. In that case, the Client will have a non-exclusive licence to use such property to obtain the full benefit of the Services;
  • the Service Provider may incorporate images into the Services which are the property of third parties and which are subject to licence terms, which may include the payment on ongoing licence fees. Where the Service Provider incorporates these images, the Client agrees to be bound by and comply with all such licence terms and the Client is solely liable for all obligations thereunder; and
  • although to the best of the Service Provider’s knowledge, the use of any text, images or other content provided by the Service Provider in the Services will not infringe on any third party, the Service Provider cannot guarantee this and the Service Provider provides no warranty in this regard.
  1. WARRANTIES
    • To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
    • Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010(Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
  2. LIABILITY
    • (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of the Service Provider to the Client in respect of loss or damage sustained by the Client under or in connection with this agreement is limited to the total Fees paid to the Service Provider by the Client in the 1 month preceding the first event giving rise to the relevant liability.
    • (Indemnity) The Client agrees at all times to indemnify and hold harmless the Service Provider and its officers, employees and agents (“those indemnified“) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’ or agents’:
      • breach of any term of this agreement; or
      • negligent, fraudulent or criminal act or omission.
    • (Client content) The Service Provider:
      • is not responsible for providing any data backup services and the Service Provider makes no guarantees that there will be no loss or corruption of the Client’s Existing Material (Client Content) at any time. Unfortunately, data loss happens and the Client holds harmless and releases the Service Provider for any Loss the Client suffers in the event that the Client Content is lost;
      • may remove or delete the Client Content following the termination or expiry of this agreement; and
      • will maintain appropriate technical and organisational measures to protect the security of the Client Content. The Service Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Content for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Content. Accordingly, any Client Content that is transmitted by the Client is transmitted solely at the Client’s risk.
    • (Consequential loss) The Service Provider will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by the Service Provider, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010(Cth) or any other applicable law.
  3. DISPUTE RESOLUTION
    • The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
    • If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party.
    • The parties acknowledge and agree that compliance with this clause 15 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
      • in the case of applications for urgent interlocutory relief; or
      • a breach by another party of this clause 15.
  1. TERMINATION
    • TERMINATION BY THE SERVICE PROVIDER

The Service Provider may terminate this agreement or any Statement of Work in whole or in part immediately by written notice to the Client if:

  • the Client is in breach of any term of these terms or any part of a Proposal and:
    • fails to rectify the breach upon being given 7 days’ written notice to do so; or
    • the breach is unable to be rectified; or
  • the Client becomes subject to any form of insolvency or bankruptcy administration.
  • TERMINATION BY THE CLIENT

The Client may terminate this agreement if:

  • the Service Provider has committed a material breach of this agreement or a Statement of Work and has failed to remedy the breach within 30 days written notice by the Client;
  • the Service Provider consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees); or
  • the Service Provider becomes subject to any form of insolvency or bankruptcy administration.

 

  • ACCRUED RIGHTS AND LIABILITIES

The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.

 

  • CONSEQUENCES OF EXPIRATION OR TERMINATION

Upon expiration or termination of this agreement:

  • the Client must pay all amounts owed for Services already provided as at the date of termination, including:
    • expenses owed to the Service Provider;
    • payments required by the Service Provider’s suppliers to discontinue their work;
    • usual time charges for the work of the Service Provider’s staff to date;
    • the Service Provider’s standard fees in relation to work already performed; and/or
    • an equitable amount by way of profit margin on the preceding items;
  • each party must return all property of the other party to that other party; and
  • each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party.
  • SURVIVAL

Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.

  1. FORCE MAJEURE
    • If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
      • reasonable details of the Force Majeure Event; and
      • so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
    • Subject to compliance with clause 17(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
    • The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
    • For the purposes of this agreement, a ‘Force Majeure Event’ means any:
      • act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
      • strikes or other industrial action outside of the control of the Affected Party; or
      • war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
      • any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
  1. NOTICES
    • A notice or other communication to a party under this agreement must be:
      • in writing and in English; and
      • delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
    • Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
      • 24 hours after the email was sent; or
      • when replied to by the other party,

whichever is earlier.

  1. GENERAL
    • GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

  • BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

  • AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

  • WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

  • SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

  • JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

  • ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

  • COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

  • COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

  • ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

  • INTERPRETATION
    • (singular and plural) words in the singular includes the plural (and vice versa);
    • (gender) words indicating a gender includes the corresponding words of any other gender;
    • (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
    • (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
    • (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
    • (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
    • (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
    • (headings) headings and words in bold type are for convenience only and do not affect interpretation;
    • (includes) the word “includes” and similar words in any form is not a word of limitation; and
    • (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
  1. DEFINITIONS

In these terms and conditions, the following words and phrases have the following meaning:

Term

Meaning

Business Day

A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Melbourne, Victoria.

Confidential Information

Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.

Fees

The fees set out in a Statement of Work

Intellectual Property Rights

All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.

Personnel

Employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.

Statement of Work

A document agreed and signed by both parties in the form of the attached Statement of Work template and which addresses the matters contemplated in that form.

Services

The services to be provided by the Service Provider to the Client in accordance with a Statement of Work.

Term

Has the meaning given in clause 3(a).