Terms and Conditions

Services Agreement

Parties

Site Marketing Group Pty Ltd as trustee for the Site Marketing Group Trust trading as About Today ABN 97 507 738 371 of 161 Collins St, Melbourne. VIC. 3000. (Us, We, Our)
Your Name, as set out in the Particulars (You, Your, Yours)

Background

We carry on the business of providing the Services.
You wish to engage Us to provide the Services, and We agree to provide the Services on the terms of this Agreement.

Agreed terms

1. Definitions and interpretation

1.1 Definitions

In this Agreement unless the context indicates a contrary intention:

Affected Obligations has the meaning given to that term in the definition of Force Majeure Event.

Affected Party has the meaning given to that term in the definition of Force Majeure Event.

Agreement means this agreement, its recitals, schedules (if any) and annexures (if any), and includes the Particulars and the Order Form.

Australian Consumer Law or ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Background Material means any material in which Intellectual Property Rights are owned by, licensed to or developed by or on behalf of a party which are pre-existing or created independently of this Agreement and includes any improvements, modifications or enhancements to the Background Material.

Business Day means a day that is not a Saturday, Sunday or public holiday in the Jurisdiction.

Commencement Date means the commencement date set out in an Order Form.

Confidential Information means:

(a) the terms of this Agreement including Information submitted or disclosed by either party during negotiations, discussions and meetings relating to this Agreement;

(b) Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and

(c) all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party,

but does not include Information which:

(d) prior to the execution of this Agreement is in the public domain;

(e) hereafter becomes part of the public domain other than has a result of an unauthorised disclosure by either party to this Agreement;

(f) is or becomes available to a party to this Agreement from a third party lawfully in possession of such Information and who has the lawful power to disclose such Information to the party on a non-confidential basis; or

(g) is rightfully known by a party to this Agreement (as shown by written record) prior to the date of disclosure under this Agreement.

Deliverables means a task to be completed or an item to be supplied by Us to You in the course of providing the Services as described in an Order Form.

Developed Material means any material, technology, software, reports, results, processes, plans, discoveries, inventions, Intellectual Property Rights or other material (whether in electronic or material form) developed by or on behalf of Us in connection with the performance of the Services and excludes Our Background Material.

Disclosing Party means the party to whom Information belongs or relates.

Effective Date means the date this Agreement is executed by the parties.

Fees means the fees for the Services as set out in an Order Form.

Force Majeure Event means an event beyond the reasonable control of a party including any act, event or cause being:

(a) an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, insurrection, civil commotion, national emergency (whether in fact or Law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, epidemic, quarantine, radiation or radioactive contamination;

(b) an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or

(c) termination or withdrawal by third party providers of any of the products, facilities or services used to provide the Services, or other service disruptions involving hardware, software of power systems within such party's possession or reasonable control and denial of service attacks,

to the extent that the act, event or cause directly results in a party (Affected Party) being prevented from or delayed in performing one or more of its material obligations under this Agreement (Affected Obligations).

Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction.

Hosting Services means the hosting services (if any) to be provided by Us to You, as further described in an applicable Order Form.

Information means any information, whether oral, graphic, electronic, written or in any other form, including:

(a) forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;

(b) copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and

Insolvency Event means any one or more of the following events occurring in respect of a person:

(a) a resolution is passed for the winding up of that person (other than for the purposes of reconstruction or amalgamation, which, in the case of a party, is on terms which have been previously approved in writing by the other party);

(b) a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement is appointed to all or any part of the property of that person;

(c) a receiver, receiver and manager, voluntary administrator or an administrator of a deed of company arrangement, is appointed to, or a mortgagee takes possession of, all or any part of the business or assets of that person;

(d) that person makes any composition or arrangement or assignment with or for the benefit of its creditors;

(e) that person or any creditor appoints a voluntary administrator or a resolution is passed for that person to execute a deed of company arrangement;

(f) that person ceases, or threatens to cease to carry on its business;

(g) that person becomes unable to pay its debts as and when they become due; or

any event analogous or equivalent to the events described in paragraphs (a) to (g) occurs in respect of that person.

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:

(a) patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder's rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;

(b) any application or right to apply for registration of any of these rights;

(d) all renewals, divisions and extensions of these rights.

Jurisdiction means Victoria, Australia.

Key Personnel means the particular Personnel which are specified in an Order Form as being a "Key Person" or one of the "Key Personnel".

Law means

(a) principles of law or equity established by decisions of courts;

(b) statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Government Agency; and

(c) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Agency that has the force of law.

Loss means any loss, damage, cost or expense.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth).

Order Form means an order agreed by You and Us in writing for the provision of Services substantially in the form set out following the Particulars at the front of this Agreement.

Particulars means the particulars provided at the front of this Agreement.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws.

Personnel means any of Our employees, agents or subcontractors and includes Key Personnel.

Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or Personal Information.

Privacy Policy has the meaning given in the Particulars.

Receiving Party means the party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party.

Related Entity has the meaning given to that term in the Corporations Act 2001 (Cth).

Schedule means a schedule to this Agreement.

Service Levels means any minimum levels of performance or quality with respect to the Services specified in an Order Form.

Services means the services supplied by Us or on Our behalf to You as described in an Order Form, including any Hosting Services and Trade Mark Services (if applicable).

Site means a location or locations where the Services will be provided as specified in an Order Form.

Term means the term set out in an Order Form.

Trade Mark Dealings has the meaning given to that term in clause 4.3(d).

Trade Mark Services means the trade mark services (if any) to be provided on Our behalf to You, as further described in an applicable Order Form.

User means any individual You authorise to access and use the Hosting Services.

Your Data means Your data or data supplied by or on behalf of You that is hosted on the Hosting Services.

1.2 Interpretation

In this Agreement, unless the context requires otherwise:

(a) the singular includes the plural and vice versa;

(b) a gender includes the other genders;

(d) other grammatical forms of defined words or expressions have corresponding meanings;

(e) a reference to a document includes the document as modified from time to time and any document replacing it;

(f) a reference to a party is to a party to this Agreement and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

(g) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;

(h) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;

(i) the word "month" means calendar month and the word "year" means 12 months;

(j) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;

(k) a reference to a thing includes a part of that thing;

(l) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;

(m) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";

(n) money amounts are stated in Australian currency unless otherwise specified;

(o) a reference to time is to the time in the capital city of the Jurisdiction;

(p) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body;

(q) any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and

(r) any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally.

1.3 Order of priority

In the event of a conflict between any of the following documents, the priority of the documents will be as follows (listed in descending order of precedence):

(a) the terms and conditions in the body of this Agreement;

(b) the Schedules and annexures to this Agreement;

(d) any other documents referred to in, or incorporated by reference in, this Agreement or any of its schedules or annexures.

2. Commencement

This Agreement commences on the Effective Date and continues until the date which is 12 months following termination or expiry of the last Order Form entered into by the parties, unless the Agreement is otherwise terminated under clause 14.

3. Orders

(a) The parties may from time to time agree to Order Forms. Each Order Form creates a separate and binding agreement between the parties which incorporates the terms of this Agreement (other than to the extent the terms of this Agreement are expressly amended or excluded by an Order Form).

(b) An Order Form will be an effective and binding Order Form under this Agreement once it is agreed and signed by the parties' authorised representatives.

4. Services

4.1 Generally

Subject to the terms and conditions of this Agreement (including clauses 4.2, 4.3 and 5), We will provide the Services to You, including the supply of any Deliverables. We will use reasonable endeavours to perform the Services in accordance with each Order Form in all material respects including using reasonable endeavours to meet the Service Levels set out therein.

4.2 Hosting Services

(a) To the extent You receive the Hosting Services, this clause 4.2 will apply.

(b) In receiving the Hosting Services, You agree and acknowledge that You:

(i) are responsible for the content of all of Your Data for complying with all applicable Laws in respect of Your Data;

(ii) are responsible for the accuracy, quality and legality of all of Your Data;

(iii) are responsible for all acts and omissions of Users as if they were Your acts and omissions;

(iv) must take all reasonable steps to mitigate the risk inherent in the use of the Hosting Services (such as loss of Your Data) including performing regular backups of all of Your Data and having business continuity plans in place in accordance with standard industry practice;

(v) must use the Hosting Services only in accordance with this Agreement and applicable Laws;

(vi) must not interfere with or disrupt the integrity or performance of the Hosting Services;

(vii) must not attempt to gain unauthorised access to the Hosting Services or its related systems or networks;

(viii) must comply with all reasonable directions provided by Us with respect to the Hosting Services; and

(ix) upon Our request, provide reasonable assistance in the investigation of any outage or security issue relevant to the Hosting Services.

(c) To the extent You provide any of Your Data in connection with the Hosting Services, it is hereby agreed that We shall have no rights in connection with Your Data, except as expressly permitted in this Agreement. You hereby grant Us a non-exclusive, non-transferable, royalty free licence (including the right to sub-license) to use, copy, edit, adapt and communicate Your Data during the Term for the sole purpose of providing the Hosting Services in accordance with this Agreement (including any Order Form thereunder). Additionally, You warrant that You have the requisite authorisations to provide Us such licence to Your Data.

(d) In providing the Hosting Services, we will:

(i) maintain reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data; and

(ii) not access Your Data other than in accordance with this Agreement.

(e) We will use commercially reasonable endeavours when providing the Hosting Services to ensure that Your Data is not corrupted, deleted or subjected to unauthorised use, and that no errors are introduced to Your Data.

(f) At any time prior to, or on expiry or termination of this Agreement, You may request in writing, and We will provide, or allow You to download, a copy of Your Data in an industry standard format, within 21 days of the relevant request.

4.3 Trade Mark Services

(a) To the extent You receive the Trade Mark Services, the remainder of this clause 4.3 will apply.

(b) Without limiting clause 5, You agree and acknowledge that the Trade Mark Services will be provided on Our behalf by third party Personnel engaged by Us.

(i) the Trade Mark Services are not guaranteed to result in the registration of the relevant trade mark, due to circumstances beyond Our and Our Personnel's control. For example, the relevant trade marks office may refuse registration of a trade mark or a third party may oppose registration of a trade mark;

(ii) to the extent that additional Trade Mark Services are required, such as the prosecution of trademarks with the relevant trade mark office, We and You must agree to the additional services and to any associated Fees before such additional Trade Mark Services are performed; and

(iii) in receiving the Trade Mark Services, You will provide our Personnel with all assistance necessary to facilitate the registration of the relevant trade mark(s) in a timely manner.

(d) All applications for trade mark registration, the trade mark registrations themselves, any applications for renewal of trade mark registration and any other related application made in the course of performing the Trade Mark Services (collectively, the Trade Mark Dealings) will be filed or registered (as the case may be) in Your name and will vest in You. We agree and acknowledge that We have no right, title or interest in the Trade Mark Dealings.

(e) To the extent applicable, We agree to perform any acts, and execute any document necessary or desirable to give effect to clause 4.3(d).

4.4 Delays

(a) In the event there is a delay in providing the Services by Us that is caused or contributed to by You, We will not be in breach of the terms of this Agreement, including clause 4.1.

(b) You must meet all reasonable costs incurred by Us as a result of a delay referred to in clause 4.4(a) and agree to any reasonable extensions of time for the completion and delivery of any Deliverables and the Services impacted by the delay.

4.5 Your obligations

(a) In receiving the Services, You agree that You will:

(i) pay all Fees in accordance with clause 6 of this Agreement and each Order Form; and

(ii) provide all necessary assistance, access to the Sites and Background Material required by Us to enable Us to deliver the Services to You.

(b) Where You fail to provide Background Material required by Us to complete the Services in accordance with clause 4.5(a)(ii) above, where such failure causes a delay in the provision of Services by more than 90 days, we reserve the right to request full payment of Fees applicable to such Services.

5. Personnel

(a) We may engage or employ any Personnel to provide all or part of the Services, in our discretion.

(b) We will use reasonable endeavours to appoint and maintain a sufficient number of appropriately trained, experienced and qualified Personnel to provide the Services to You in a competent and professional manner and as otherwise specified in each Order Form.

(c) If the Order Form specifies that particular Services will be performed by Key Personnel, those particular Services will be performed by the Key Personnel nominated in that Order Form.

6. Fees and invoicing

6.1 Fees

In receiving the Services, You agree to pay all Fees in accordance with this clause 6 of this Agreement and each Order Form.

6.2 Invoicing

(a) We will invoice You for the Fees in accordance with the payment terms set out in an Order Form.

(b) You must pay all invoices no later than 7 days of receipt of an invoice, unless otherwise agreed by Us and You in an Order Form.

(c) If You fail to pay an invoice in accordance with clause 6.2(b), We may, without limiting any other rights under this Agreement, do one or both of the following:

(i) suspend Our supply of the Services at any time after 60 days from the date the relevant payment was due until You pay the invoice in full; and/or

(ii) charge interest on the amount overdue at a rate of 10% (or the maximum amount permitted by Law) per annum calculated daily from the date the relevant payment was due until the date on which it is paid in full.

(d) If You dispute any item on any invoice in whole or in part, You will notify Us within 14 days, and the parties will use all reasonable endeavours to settle the dispute at their earliest possible convenience in accordance with clause 17.

7. GST

7.1 Definitions

In this clause 7 only:

(a) the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act); and

(b) the Supplier means any party treated by the GST Act as making a Supply under this Agreement.

7.2 Consideration is GST exclusive

Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.

7.3 Payment of GST

(a) If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.

(b) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.

7.4 Reimbursement of expenses

If this Agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any Loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:

(a) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and

(b) if the Other Party's recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,

such that after the Other Party meets the GST liability, it retains the Net Amount.

8. Intellectual property

8.1 Background Material

(a) The parties acknowledge and agree that all Intellectual Property Rights in the Background Material are and shall remain the property of the relevant party. Nothing in this Agreement should be construed as transferring any aspects of such rights to the other party.

(b) You grant Us a non-exclusive, non-transferable, royalty-free licence to use, reproduce and modify Your Background Material for the sole purpose of, and to the extent necessary, for Us to provide the Services to You and otherwise perform Our obligations under this Agreement.

(c) We grant You a non-exclusive, non-transferable, royalty-free licence to use Our Background Material incorporated into the Developed Material, or that is required for Your use to obtain the benefit of the Services.

8.2 Developed Material

(a) We will deliver the Developed Material to You in accordance with the terms and timetable for delivery specified in an Order Form.

(b) We hereby assign to You absolutely and beneficially, the whole of the right, title and interest in and to any Developed Material including any Intellectual Property Rights subsisting in the Developed Material (excluding, for the avoidance of doubt, any of Our Background Material subsisting therein) with effect on and from the date of creation of the Developed Material.

(c) You grant Us a non-exclusive, non-transferable, perpetual, irrevocable, world-wide and royalty-free licence (including a right to sub-license) to use, copy, reproduce, modify, adapt, distribute and communicate the Developed Material for any purpose.

9. Confidentiality

9.1 Obligations of confidentiality

Subject to clauses 9.2 and 9.3, the Receiving Party must:

(a) keep the Confidential Information confidential and not directly or indirectly disclose, divulge or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

(b) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;

(c) only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under this Agreement;

(d) not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement; and

(e) take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 9.3 complies at all times with the terms of this clause 9.1 as if that person were a Receiving Party.

9.2 Disclosure required by Law

The obligations of confidentiality under clause 9.1 do not apply to any disclosure of Confidential Information by the Receiving Party that is necessary to comply with any court order or applicable Law if, to the extent practicable and as soon as reasonably possible, the Receiving Party:

(a) notifies the Disclosing Party of the proposed disclosure;

(b) consults with the Disclosing Party as to its content; and

(c) uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure.

9.3 Authorised disclosure

(a) A Receiving Party may disclose Confidential Information to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a "need to know basis" and, prior to the disclosure:

(i) the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed; and

(ii) the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations in this clause 9 as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.

(b) The Receiving Party is liable for any breach of this clause 9 by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.

9.4 Breach of Confidence

Each party must promptly notify the other party if it becomes aware of any unauthorised access, use or disclosure of all or any part of the Confidential Information and must give that other party all reasonable assistance in connection with any claim which it may institute in connection with that unauthorised access, use or disclosure.

9.5 Return or destruction of Confidential Information

Immediately on the written request of the Disclosing Party or on the termination of this Agreement for any reason, a Receiving Party must:

(a) cease the use of all Confidential Information of or relating to the Disclosing Party (or any Related Entity of the Disclosing Party);

(b) deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording or constituting that Confidential Information or, at the option of the Disclosing Party, destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials; and

(c) upon delivery of the Confidential Information under clause 9.5(b), permanently delete that Confidential Information from all electronic media on which it is stored, so that it cannot be restored.

9.6 Publicity

Notwithstanding any provision of this Agreement or any other agreement between You and Us, We may during and after the Term communicate in any media (including press releases, general announcements, annual reports and print and online marketing materials), the following Information:

(a) Your name; and

(b) a description of the Services provided to You under this Agreement and any other agreement between You and Us.

10. Privacy

(a) We will comply with the Privacy Laws in respect of any Personal Information We collect and handle on Your behalf in the course of providing the Services to You, to the extent that the Privacy Laws apply to Us in Our role as service provider to You under this Agreement, and except to the extent such obligation is inconsistent with Our obligations under any other Law.

(b) Any Personal Information provided by You (whether Personal Information belonging to You or another individual, which You have the necessary consents to provide) may be collected, used and disclosed by Us for the purposes contemplated by this Agreement and Our Privacy Policy. You Agree that by entering into this Agreement, You have read the Privacy Policy and understood its contents and consented to the requirements.

(i) that We may from time to time collect Personal Information about them in order to perform Our obligations under this Agreement; and

(ii) of Our Privacy Policy.

(d) You must ensure that you have provided the appropriate notifications and procured the necessary consents to allow us to collect any Personal Information and to use such Personal Information as contemplated by this Agreement and Our Privacy Policy and in accordance with Privacy Laws.

(e) You also undertake not to do or omit to do anything with Personal Information that will cause Us to breach any Privacy Law.

(f) You must notify Us immediately upon becoming aware of any breach of any Privacy Laws that may be related to the operation of the Services or the Personal Information.

11. Warranties

(a) Each party warrants that:

(i) it has full legal capacity and power to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and

(ii) it has obtained or will obtain all licences, permits and third party authorisations necessary for it to perform its obligations under this Agreement.

(b) We warrant that We will provide the Services using all due skill, care and diligence, and otherwise in accordance with this Agreement.

(c) You warrant that You have not relied on any representation made by Us which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Us.

(d) Any representation, warranty, condition, guarantee, indemnity or undertaking that would be implied in, or affect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage is excluded to the maximum extent permitted by Law.

(e) Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable Law that cannot be excluded, restricted or modified by agreement.

(f) To the fullest extent permitted by Law, Our liability for a breach of a non-excludable guarantee referred to in clause 11(e) is limited, at Our option, to:

(i) the supplying of the Services again; or

(ii) the payment of the cost of having the Services supplied again.

12. Liability

12.1 Liability

To the extent permitted by Law, and subject to clauses 12.2 and 12.3, a party's maximum aggregate liability to the other under or in connection with this Agreement or its subject matter, however arising (including breach of contract, negligence, misrepresentation or other claim), is limited to the Fees paid by You to Us for the Services in the 12 months prior to the event giving rise to the liability under this Agreement.

12.2 Exclusion of Consequential Loss

Subject to clause 12.3, neither party shall be liable to the other party for any loss of business, goodwill, contracts, profits, anticipated savings, loss or corruption of data, or for any indirect, special, consequential, incidental, exemplary or punitive damages or Loss (and even if that party has been advised of the possibility of such damages or Loss) which may be suffered or incurred or which may arise directly or indirectly under or in relation to this Agreement.

12.3 Exclusions

Nothing in this Agreement operates to limit or exclude:

(a) either party's liability to the other in respect of direct Losses arising out of or in connection with:

(i) damages for bodily injury (including death) and damage to real property and tangible personal property;

(ii) any fraudulent or unlawful acts or omissions; or

(iii) the indemnities set out in clause 13;

(b) Your liability for any Fees payable under this Agreement.

12.4 Contribution

The liability of a party for any cause of action (including under an indemnity) will be reduced proportionally to the extent that the liability arises as a result of a breach of this Agreement by the other party.

13. Indemnity

(a) You will indemnify, defend and hold Us harmless against any and all claims and Losses (including reasonable legal fees) whatsoever and howsoever incurred by Us in connection with or arising out of any claim made by a third party (including a claim made by Your customers) that Our use of Your Background Material infringes the Intellectual Property Rights of the third party.

(b) We will indemnify, defend and hold You harmless against any and all claims and Losses (including reasonable legal fees) whatsoever and howsoever incurred by You in connection with or arising out of any claim made by a third party that Your use Our Background Material or Developed Material infringes the Intellectual Property Rights of the third party.

(c) The indemnities in this clause 13 are continuing obligations, separate and independent from the other obligations of the parties, and survive termination, completion or expiration of this Agreement.

(d) It is not necessary for a party to incur expense or to make any payment before enforcing a right of indemnity conferred by this clause 13.

(e) A party must pay on demand any amount owing to the other party under the indemnities in clauses 13(a) or 13(b).

14. Termination

14.1 Termination

(a) We may by notice in writing immediately terminate this Agreement or an Order Form (in whole or in part) if You become unable to pay amounts owed to Us under this Agreement.

(b) Either party may terminate this Agreement or an Order Form immediately upon written notice to the other party if the other party is in material breach of this Agreement and:

(i) the breach is incapable of remedy; or

(ii) where the other party fails to remedy the breach within 10 Business Days of receiving written notice of the breach from the first party; or

(iii) the other party is the subject of an Insolvency Event.

14.2 Consequences of Termination

(a) Any termination under this clause 14 will be without prejudice to any right, action or remedy which has accrued or which may accrue in favour of either party.

(b) Upon termination of this Agreement or an Order Form by either party:

(i) We will cease supply of the Services and deliver to You any Deliverables existing at the date of termination;

(ii) each party must immediately cease using the other party's Confidential Information, and comply with the provisions set out in clause 9.5;

(iii) We will provide You with a final invoice for all Services performed, including any Deliverables supplied, up to and including the date of termination under this Agreement;

(iv) We may retain any moneys paid by You; and

(v) You shall promptly pay to Us any outstanding sums due to Us pursuant to this Agreement and any Order Form.

(c) This clause 14 and clauses 4.2(f), 8, 9, 10, 11, 12, 13, 15, 17 and 18 inclusive will survive expiration or termination of this Agreement or an Order Form.

15. Insurance

We agree to take out and maintain during the Term and for at least 1 year following the termination or expiration of this Agreement, the insurance policies specified in an Order Form, if any.

16. Force Majeure

Where any failure or delay in the performance of obligations under this Agreement is caused, directly or indirectly, by a Force Majeure Event:

(a) the Affected Party must as soon as practicable give the other party written notice of that fact;

(b) the Affected Party is not liable for that failure or delay;

(c) Affected Obligations under this Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event; and

(d) if the Force Majeure Event continues for more than 90 consecutive days and while it continues, any party other than the Affected Party may, at its sole discretion, terminate this Agreement by giving written notice to the Affected Party and all other parties (if any).

17. Dispute resolution

17.1 Delivering a dispute notice

If any dispute, controversy or claim arises between the parties arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, a party may deliver to the other party a written notice which sets out:

(a) the nature of the dispute; and

(b) the relief or remedy that the party seeks.

17.2 Acknowledgments

The parties agree that if a dispute arises out of or relates to this Agreement, a party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 17 except to seek urgent equitable or interlocutory relief. The procedures in this clause 17 will be completed within 40 Business Days from the giving of notice referred to in clause 17.1. After expiry of this time, a party may commence legal proceedings relating to the dispute.

17.3 Process

When a dispute arises between the parties in relation to this Agreement, then:

(a) all amounts payable by You to Us which are not in dispute must be paid in accordance with this Agreement;

(b) if the parties cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each party (jointly referred to in the remainder of this clause 17 as Chief Executive Officers) for resolution;

(c) if the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral, then the parties must submit the dispute to a mediator for consideration in accordance with the Mediation Rules of the Resolution Institute, which Rules are taken to be incorporated into this Agreement.

17.4 Costs

Each party must pay its own internal and legal costs in relation to complying with this clause 17. The mediator's costs are to be shared equally between the parties.

18. General

18.1 Entire understanding

This Agreement contains the entire understanding between the parties concerning the subject matter of this Agreement and supersedes, terminates and replaces all prior agreements and communications between the parties concerning that subject matter.

18.2 No adverse construction

This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for its preparation.

18.3 No waiver

(a) A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right.

(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.

18.4 Severability

Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:

(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and

(b) be severed from this Agreement in any other case,

without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

18.5 Successors and assigns

This Agreement binds and benefits the parties and their respective successors and permitted assigns under clause 18.6.

18.6 No assignment

(a) You cannot assign, novate or otherwise transfer the benefit of this Agreement without Our prior written consent.

(b) We may assign, novate or otherwise transfer the whole or part of this Agreement without Your prior written consent. You agree to execute any document necessary or desirable to give effect to this clause 18.6.

18.7 No variation

This Agreement cannot be amended or varied except in writing signed by the parties.

18.8 Governing law and jurisdiction

This Agreement is governed by and must be construed in accordance with the laws in force in the Jurisdiction. The parties submit to the exclusive jurisdiction of the courts of that Jurisdiction and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.

18.9 Notices

Any notice or other communication to or by a party under this Agreement:

(a) may be given by personal service, post or email;

(b) must be in writing, legible and in English addressed (depending on the manner in which it is given) as shown in the Particulars, or to any other address last notified by the party to the sender by notice given in accordance with this clause;

(i) if delivered in person, when delivered to the addressee;

(ii) if posted, at 9.00 am on the second Business Day after the date of posting to the addressee whether delivered or not; or

(iii) if sent by email transmission,

but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time), it is deemed to have been received at 9.00 am on the next Business Day.

18.10 Counterparts

If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document. A party may sign a counterpart by executing a signature page and electronically transmitting a copy of the signed page to each other party or their authorised representative.

18.11 Operation of indemnities

Unless this Agreement expressly provides otherwise:

(a) each indemnity in this Agreement survives the expiry or termination of this Agreement; and

(b) a party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.

18.12 Further assurances

A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.

18.13 Relationship of parties

Unless this Agreement expressly provides otherwise, nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.

18.14 Costs

Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.