Terms & Conditions

Terms and Conditions

Definitions & Interpretation

Definitions

In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions:

ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
Address for Service: a party’s email address or address set out in the Schedule or such other address for service advised by the party to the other parties in writing from time to time.
Agreement: means this Consultancy Agreement consisting of these terms and conditions and the attached Schedule.
Applicable Laws: any laws governing or affecting the arrangements contemplated by this Agreement.
Business Day: a day on which banks are open for business in the capital city of the State, other than a Saturday, Sunday or public holiday in that city.
Background Materials: any and all things, works, items, concepts, designs, inventions, developments, improvements, systems, strategies, materials and information, of whatever nature developed by the Consultant (or licensed to the Consultant) which are general in nature and not created specifically for the Client in supplying the Services, and which the Consultant may use in respect of the Services, including any assets accessible on the Consultant’s Notion library.
Client Data: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client (or on behalf of the Client) to the Consultant in connection with the Services.
Commencement Date: the date set out in the Schedule.
Confidential Information: means any information, whether recorded in writing or otherwise disclosed by one party to the other which any reasonable person would consider to be of a confidential nature, including without limitation any trade secrets, methods, strategies, competitor details, pricing, and other business processes. Confidential Information does not include information that:
1. is or becomes independently developed or known by the other party through no breach of this Agreement by that party; or
2. becomes publicly available without breach of this Agreement.
Contract Materials: all things, works, items, concepts, designs, inventions, developments, improvements, systems, strategies, materials and information, of whatever nature, created, conceived, developed or generated by the Consultant (whether alone or with the Client or its Personnel) specifically for the Client in supplying the Services under this Agreement (but excludes the Background Materials).
Corporations Act: the Corporations Act 2001 (Cth).
Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Insolvency Event:
1. a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
2. a liquidator or provisional liquidator is appointed in respect of a person;
3. any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
4. any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
5. any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
6. a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
Loss: any loss, liability, cost, charge, expense, Tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
Minimum Engagement Period: the period set out in the Schedule (if any).
Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
Pre-existing IP Rights: Intellectual Property Rights in all materials owned by the Client or Consultant (as the case may be) prior to the date of this Agreement or which was developed independently of the Services.
Related Entity: has the meaning given in section 9 of the Corporations Act.
Service Fees: has the meaning given in clause 5.1.
Services: the services set out in the Schedule to be provided by the Consultant to the Client, and as amended from time to time in accordance with this Agreement.
Schedule: the Schedule attached to these terms and conditions.
State: Victoria, Australia.
Tax: any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.
Term: means the term of this Agreement commencing and ending in accordance with clause 2.

Interpretation

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.
References to parties are references to the parties to this Agreement.
References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
Words denoting the singular include the plural and words denoting the plural include the singular.
Words denoting any gender include all genders.
The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.
A reference to a law includes:
1. legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
2. any constitutional provision, treaty or decree;
3. any judgment;
4. any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
A reference to time is a reference to time in the capital city of the State.
A reference to a day is a reference to a day in the capital city of the State.
A reference to a business day is a reference to a day on which banks are open for business in the State, other than Saturday, Sunday or a public holiday in that State.
A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.
A reference to writing or written includes email.
Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

Term

This Agreement will start on the Commencement Date and will continue in the manner set out in the Schedule in accordance with the terms of this Agreement (Term). The terms of the engagement, including, any minimum engagement periods (if any) are as set out in the Schedule.

Engagement of the Consultant

Engagement

The Client engages the Consultant to provide the Services to the Client during the Term in the manner as specified in the Schedule in accordance with the terms of this Agreement.

Nature of engagement

The engagement of the Consultant by the Client is on a non-exclusive basis, and the Consultant may provide services which are the same as or similar to the Services to a third party during the Term.

Services

Scope
1. The scope of the Services is as set out in the Schedule and as otherwise agreed between the parties in writing from time to time.
2. The Consultant may agree to amendments to the scope at its discretion in accordance with clause 7.
Performance of Services
1. During the Term, the Consultant shall provide the Services to the Client in the manner, frequency, quantity and times as set out in the Schedule and as otherwise agreed between the parties in writing.
2. Any milestone, delivery or performance dates relating to the Services which are set out in this Agreement or otherwise agreed to by the parties are estimates only, and time for performance will not be of the essence of this Agreement or binding on the Consultant.

If a minimum engagement period is agreed to in the Schedule, the Client agrees to engage the Consultant for the minimum engagement period as specified in the Schedule.

Unless otherwise agreed, the Consultant will record time for performance of the Services in 15 minute units, and will be rounded up to the nearest unit. For example, if the Consultant is engaged for 22 minutes, this will be recorded as 30 minutes (2 units).

Fees and payment

Service Fees
1. In consideration of the Consultant providing the Services, the Client must pay to the Consultant the fees for the Services in the amount and in the manner as specified in the Schedule (Service Fees).
2. Where the Service Fees indicate that a fixed number of hours or days of Services will be provided per month, then, unless otherwise agreed by the Consultant:
  1. any unused hours or days in any given month will not roll over to the next month and will expire; and
  2. any additional hours or days of Services provided which exceeds that fixed number will be charged to the Client at the Consultant’s then current hourly rate and will be added to the next invoice issued to the Client (unless otherwise agreed).

Where the Service Fees are calculated on a fixed price basis, the amount of those charges will be as set out in a Schedule.

Payment Terms
1. During the Term, the Consultant will provide an invoice in respect of the Service Fees to the Client at the times as set out in the Schedule.
2. The Client must pay each invoice submitted by the Consultant in accordance with the payment terms set out in the Schedule.
Increase due to other reasons
1. Where the Client is on a month to month retainer engagement, then the Consultant reserves the right to increase the Service Fees (for that retainer) to the Consultant’s current list price upon any monthly renewal.
2. If this increase applies to the Client, then the Consultant will give at least 30 days’ written notice of the increase, and the increased Service Fee will apply at the start of the next month following expiry of the notice period. If the Client does not agree to the increase, then they may choose to terminate the retainer by giving notice to the Consultant within 30 days of the Consultant giving notice of the increase.
3. The Consultant otherwise reserves the right to increase Service Fees where there is an increased in the scope, and such increase is agreed mutually between the parties.
Other Expenses

The Client agrees that the payment of the Service Fees does not include payment of any third-party expenses, outlays and disbursements or incidental expenses that relate to the Services in any way (Supplier Costs). The Client must reimburse the Consultant for any pre-approved Supplier Costs incurred by the Consultant.

Default in payment

In the event the Client fails to pay the Service Fees or other amounts payable hereunder when due in full in cleared funds in accordance with this Agreement, the Consultant may at its discretion and in addition to any other rights it has under this Agreement or at law:

cease providing the Services to the Client without notice until all overdue amounts are paid (including any accrued interest in accordance with sub-clause (b)), and the Consultant will not be responsible for any Loss the Client suffers because of this;
charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily until the date of actual payment of the overdue amount and all accrued interest; and/or
terminate this Agreement, whereupon the Service Fees for the Services performed up to the date of termination, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable in addition to any other amounts payable by the Client as at the date of termination.

Default in terms

The Client will also pay to the Consultant, on demand, on a full indemnity basis, all amounts that the Consultant may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Client defaulting on any of the terms of this Agreement.

General
1. The Client must make all payments to the Consultant in cleared funds, without set-off or counterclaim. Payment of the Service Fees is not dependent on receipt of the invoice.
2. All amounts paid to the Consultant under this Agreement are non-refundable to the extent permitted by law.

Client duties and responsibilities

Supply of information, documents and assistance

The Client acknowledges and agrees that it will promptly provide all information, documentation and assistance reasonably required by the Consultant in order for the Consultant to provide the Services as soon as possible on being requested to do so. This includes, without limitation, responding to any queries the Consultant requests during the performance of the Services.

Approvals
1. If the Consultant submits any deliverables, reports, or other materials (Submissions) to the Client for approval, the Client must review and respond to the Consultant within one week from the date of submission.
2. If the Client does not provide any response within the specified one week period, the Submissions shall be deemed to have been approved by the Client.
3. Any requests for amendments or revisions to the Submissions by the Client must be clearly communicated to the Consultant within the same one week period and must be within the original scope as contemplated by the parties. The Consultant shall then have a reasonable time to make the necessary changes and resubmit the amended Submissions for approval. Any requests outside of this period or outside of the original scope will incur additional costs charged at the Consultant’s then current hourly rate.
4. The deemed approval process applies to all Submissions made by the Consultant under this Agreement unless otherwise specifically stated in writing.
Access to systems and accounts
1. The Client must:
  1. ensure that the Consultant and its Personnel have access to the Client’s data and internal systems as necessary to perform the Services;
  2. ensure that the Consultant and its Personnel have access to the Client’s third party social media and software accounts as necessary to perform the Services, and the Client expressly authorises the Consultant to access and use the Client’s accounts and licences where necessary in providing the Services;
  3. ensure that it maintains any third party social media and software account subscriptions as required (at their own cost); and
  4. ensure that the Client’s systems and the above locations are safe and comply with Applicable Laws.
2. The Client acknowledges that in the event that:
  1. any Client systems, accounts or third party social media and software access is experiencing issues or downtime; or
  2. the Client is required to maintain an account and fails to do so,

this may delay or hinder the performance of the Services and the Consultant accepts no responsibility for any Losses or notification in this regard.

Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.

Incorrect information & other matters

The Consultant assumes no responsibility for failure of any third party or the Client to provide any information, or for inaccurate information provided by a third party or the Client, or for any technical malfunction of any communications network. In such circumstances the Consultant will not be responsible for any Loss.

Compliance with Laws

The Client acknowledges and 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.

Delay

If the Consultant’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client or its Personnel for a period of at least 21 days, then, without prejudice to any other right or remedy it may have, the Consultant may:

terminate this Agreement; and/or
invoice the Client for any part or parts of the Services already performed and any Services currently in progress.

Variations

Should the Client require amendments or additions to the scope of the Services specified in the Schedule, then the Client may request the Consultant provide such amendments (Additional Work Request), and the Consultant may accept or reject such request at its sole discretion.
An Additional Work Request may be provided in writing, by email, by text or verbally including by telephone. Each Additional Work Request will not be binding on the Consultant until such time as the Consultant has indicated its acceptance. Once accepted, the Additional Work Request will be binding on the Client.
If the Consultant accepts an Additional Work Request then it will:
1. (for amendments to scope) provide an additional quote (with additional fees if required to be paid as advised by the Consultant at the time of request) and if accepted by the Client, an invoice will be issued to accommodate these scope changes; or
2. (for additional hours or days) provide an additional quote with additional fees charged at the hourly rate set out in the Schedule or as otherwise advised by the Consultant and if accepted by the Client such additional hours will be added to the invoice.
Each Additional Work Request if accepted, will form part of this Agreement and will not form a separate contract to it.
If there is any inconsistency between the terms set out in this Agreement and the terms set out in an Additional Work Request, the terms in the Additional Work Request prevail to the extent of the inconsistency.
The Consultant reserves the right to make changes to the Services which are necessary to comply with Applicable Laws, Government Agency requests or safety requirements.
The Client is solely liable for the payment of any additional Services outside of the scope that is set out in the Schedule.

Relationship

The parties acknowledge that:
1. the Consultant is engaged by the Client as an independent contractor and nothing in this Agreement creates or constitutes a relationship of employer and employee, trustee and beneficiary or of partnership or joint venture between the parties; and
2. the Consultant is free to provide its services to third parties during the Term.

Delegation and subcontracting

The Consultant may subcontract, delegate and/or perform the Services through any other party competent to perform that Service.
The Consultant will use reasonable endeavours to ensure that such persons comply with the provisions of this Agreement, however a breach by such persons of this Agreement will not be deemed a breach by the Consultant.

Confidentiality

Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers) or the terms of this Agreement, except:
1. where the information is in the public domain as at the date of this Agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
2. if the Recipient is required to disclose the information by applicable law or the rules of any recognised securities exchange, provided that the Recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;
3. where the disclosure is expressly permitted under this Agreement;
4. if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under this Agreement or to conduct their business generally, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
5. where the disclosure is required for use in legal proceedings regarding this Agreement; or
6. if the party to whom the information relates has consented in writing before the disclosure.
Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Entities comply in all respects with the Recipient's obligations under this clause.
This clause survives termination or expiry of this Agreement.
The obligations of confidentiality in this clause are not affected by the expiry or termination of this Agreement.

Intellectual property
1. Pre-existing IP
  1. Each party acknowledges that all Pre-existing IP Rights remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this Agreement, other than as expressly set out in this Agreement.
  2. Each party warrants it has the rights to all Pre-existing IP Rights and the grant of licence of such on the terms set out in this Agreement to the other party will not violate or infringe upon the Intellectual Property Rights or any other rights whatsoever of any person, form, corporation or other entity.
  3. If the use of the Client’s Pre-existing IP Rights by the Consultant becomes necessary for the performance of the Services, the Client grants the Consultant a worldwide, fully paid-up, non-exclusive, royalty free, perpetual, transferable, assignable licence (with the right to sub-licence) to exploit the Pre-existing IP Rights owned by the Client for the purpose of providing the Services.
2. Background Materials
  1. The Client acknowledges that the Consultant (or the relevant third-party licensor) shall at all times retain all title, interest and rights (including Intellectual Property Rights) to the Background Materials.
  2. To the extent that the Consultant owns the Background Materials, the Consultant grants, or will procure the grant to the Client of a limited, revocable, non-exclusive, non-transferable, non-sublicensable nor assignable licence to use the Intellectual Property Rights in the Background Materials subject to the following restrictions:
    1. the Client may only use the Background Materials for its own internal business purposes;
    2. the Client must not sub-licence, assign or novate the benefit or burden of the licence granted to the Background Materials hereunder in whole or part to any third party;
    3. the Client is strictly prohibited from distributing the Background Materials to any third party or from dealing commercially with the Background Materials;
    4. the Client must only use the Background Materials for the purposes intended;
    5. the Client must not resell, copy, reproduce, distribute, adapt, alter, modify, translate, publish, share, create derivate works, or publicly display any of the Background Materials anywhere in the world (except where permitted under this Agreement); and
    6. the Client must not to take or permit or omit any action which would or might:
      1. invalidate or put in dispute the Consultant’s title to the Background Materials or any part of it;
      2. oppose any application for registration or invalidate any registration of the Background Materials or any part of it;
      3. support any application to remove or undo the Consultant’s title in the Background Materials or any part of it; or
      4. assist any other person directly or indirectly in any of the above.
  3. Unless otherwise agreed, on termination of the Term, the Client’s licence to use the Intellectual Property Rights in the Background Materials is immediately revoked, and the Client must cease to use such Background Materials.
3. Contract Materials
  1. Unless otherwise agreed by the parties in writing, the Client acknowledges that the Consultant (or the relevant third-party licensor) shall at all times retain all title, interest and rights (including Intellectual Property Rights) to the Contract Materials.
  2. To the extent that the Consultant owns the Contract Materials, the Consultant grants, or will procure the grant to the Client of a limited, revocable, non-exclusive, non-transferable, non-sublicensable nor assignable licence to use the Intellectual Property Rights in the Contract Materials subject to the following restrictions:
    1. the Client may only use the Contract Materials solely to the extent required to benefit from the Services in its business and only for the Term;
    2. the Client must not sub-licence, assign or novate the benefit or burden of the licence granted to the Contract Materials hereunder in whole or part to any third party;
    3. the Client is strictly prohibited from distributing the Contract Materials to any third party or from dealing commercially with the Contract Materials;
    4. the Client must only use the Contract Materials for the purposes intended;
    5. the Client must not resell, copy, reproduce, distribute, adapt, alter, modify, translate, publish, share, create derivate works, or publicly display any of the Contract Materials anywhere in the world (except where permitted under this Agreement); and
    6. the Client must not to take or permit or omit any action which would or might:
      1. invalidate or put in dispute the Consultant’s title to the Contract Materials or any part of it;
      2. oppose any application for registration or invalidate any registration of the Contract Materials or any part of it;
      3. support any application to remove or undo the Consultant’s title in the Contract Materials or any part of it; or
      4. assist any other person directly or indirectly in any of the above.
  3. Unless otherwise agreed, on termination of the Term, the Client’s licence to use the Intellectual Property Rights in the Contract Materials is immediately revoked, and the Client must cease to use such Contract Materials.
4. Acknowledgement

The Client acknowledges and agrees that at all times, the Consultant shall retain ownership of the strategies and know-how used by it to provide the Services.

Client Data

The Client:

will retain ownership of all Intellectual Property Rights in the Client Data; and
grants the Consultant a non-exclusive and irrevocable licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required by the Consultant for the performance of the Consultant’s obligations and exercise of its rights under this Agreement.

Client warranties

The Client:

warrants that the receipt and use in the performance of this Agreement by the Consultant, and its Personnel of the Client Data will not infringe the rights, including any Intellectual Property Rights, of any third party; and
must keep the Consultant indemnified in full against any liabilities, costs, charges, or expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Consultant arising out of or in connection with any claim brought against the Consultant for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Client Data.

Survival

This clause survives termination of Agreement.

Non-disparagement

During the Term, and following expiry of the Term, each party (and its Personnel) must not by any method including on social media anywhere in the world:

make any public or private statement, public or comment, whether oral or in writing, which in the reasonable opinion of the other party, is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark or representation about the other party (and its Personnel); or
make any public or private statement that is false and does or has the tendency to damage the reputation of the other party (and its Personnel).

Representations and warranties
1. Each party represents and warrants to the other that:

it has full authority to enter into this Agreement and is not bound by any agreement with any third party that adversely affects this Agreement; and
it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this Agreement.

Each party will immediately notify the other party if any of the foregoing representations and warranties cease to be true during the term of the Agreement.

Termination

Termination with cause

In addition to such rights set out under this clause 14, either party (the non-defaulting party) may terminate this Agreement with immediate effect by giving written notice to the other party if:

the other party (being the Client) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing that the payment is overdue;
the other party suffers an Insolvency Event; or
the other party commits a breach of any term of this Agreement and either:
1. the breach is irremediable; or
2. the breach is remediable, and the other party fails to remedy that breach within a period of 30 days after the other party has, or is deemed to have, received written notice requesting it to do so.

Additional termination rights

Additional termination rights (if any) may be specified in the Schedule.

Consequences of termination

On termination or expiry of this Agreement:
1. each party must promptly deliver to the other all property belonging to the other that is in its possession or control, including any Confidential Information or intellectual property;
2. the Client must immediately pay to the Consultant all amounts payable to the Consultant (including amounts that are payable but not due);
3. the Consultant may invoice the Client with respect to the Services performed up to the date of termination and such invoice shall be payable immediately on receipt; and
4. to the extent permitted by law, no refunds of amounts paid in respect of the period post termination or expiry will be provided.
Termination or expiry of this Agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

Disclaimer

The Consultant provides the Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services and any information or guidance provided by the Consultant to the Client throughout the provision of the Services (Information) at its own risk.
Without limiting clause 16.1 the Client acknowledges and agrees that:
1. any Information is not and should not be construed as financial and/or legal advice and is not intended to be a substitute for such advice and should not be relied upon as such. Such Information is provided as general guidance only, without representation or warranty;
2. whilst every effort is made to ensure any Information provided by the Consultant is accurate, the Consultant makes no representations about the currency, suitability, reliability, availability, timeliness, and accuracy of any Information for any purpose. The Client should verify the accuracy of any information provided before relying on it;
3. the Consultant does not control any third party that it refers to the Client and takes no responsibility for the actions of third parties. As a result, the Consultant provides no guarantee or warranty or indemnity in respect of such third party’s ability to undertake their respective obligations or otherwise;
4. although the Consultant provides Information to assist the Client, the Consultant is not responsible for decisions that the Client may make nor losses that may arise out of any decision made by the Client at any time. The Client is solely responsible for:
  1. following or not following, or making an assessment of, any Information provided; or
  2. executing any strategy and for any associated costs or expenses of executing such strategy.

The Client should make their own enquiries and obtain their own independent advice in relation to the Information provided before making any decision or taking any action based on their contents;

the Client is solely responsible for assessing the appropriateness of the Services;
the Client is solely liable for ensuring that it complies with Applicable Laws (including all regulatory requirements). For the avoidance of doubt the Consultant will not be liable for ensuring that the Client complies with Applicable Laws;
the Consultant has no ongoing obligations upon termination or completion of the Services to ensure that any deliverables or the Services comply with Applicable Laws. The Client is solely responsible for reviewing any deliverables regularly to ensure that they are compliant with Applicable Laws (this includes relevantly adhering to any regulatory updates);
the Consultant does not provide any guarantee of results or any particular outcome; and
the Consultant makes no warranty that the Services will generate any increase in sales, business activity, profits or any other form of improvement for the Client’s business or any other purpose.

Events outside of the Consultant’s control
1. The effectiveness of the Services may be affected by circumstances outside the Consultant’s control including:
  1. the Client’s account that is used by the Consultant to perform the Services being cancelled or disabled on a temporary or permanent basis;
  2. the platform that is used by the Consultant to perform the Services changes its functionality;
  3. changes in the policies and/or ranking algorithms of search engines;
  4. changes to the Client’s account occasioned by a party other than the Consultant; or
  5. a third party ceasing the assets of the Client, and the Consultant will not be liable for any Loss suffered by the Client arising from such circumstances.

Survival

This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of this Agreement.

Exclusion & limitation of liability

Subject to the other terms of this clause, the Consultant excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services, that are not expressly set out in this Agreement to the maximum extent permitted by law.
Concerning the liability of each party to the other party, each party will not be liable for any Loss to the extent that:
1. it is caused by the other party’s negligent act or omission;
2. it results from the other party failing to take reasonable steps to avoid or minimise the Loss; and
3. it is caused by events outside of that party’s reasonable control.
Subject to the other terms of this clause, the liability of either party for any Loss arising out of or in connection with this Agreement, including any breach by that party of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, will not exceed an amount equal to the amount of the Service Fees payable for the Services most directly related to the claim. The liability of either party for any claim arising out of or in connection with any Service will not exceed an amount equal to the amount of the Service Fees payable for such Service. The total aggregate liability of either party for each and all claims arising out of or in connection with this Agreement will not exceed an amount equal to the aggregate total amount of all Service Fees paid or payable under the Agreement in the 12 month period immediately preceding the date of the event giving rise to the claim.
The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
Without limitation to the other terms of this clause, each party excludes any liability to the other party, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.
Notwithstanding anything else in this clause, each party’s liability will be reduced to the extent the Loss or damage is caused by or contributed to by the other party or its Personnel.
Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Consultant in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
If the Consultant is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Consultant’s total liability to the Client for that failure is limited to, at the option of the Consultant, the resupply of the Services or the payment of the cost of resupply.

Testimonial and publicity rights

In consideration of the Consultant providing the Services, the Client agrees that it may be identified as a client on the Consultant’s website or other marketing materials of the Consultant, and that the Consultant may request and use the Client’s business name and logo for this purpose. The Client also agrees that the Consultant may develop a case study featuring the Client’s use of the Services and that this may be used for publicity purposes, including for display on the Consultant’s website.

Definitions

Words used in this clause that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.

GST
1. Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST.
2. To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this Agreement for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
3. The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply.
4. Whenever an adjustment event occurs in relation to any taxable supply to which clause 19.2(b) applies:
  1. the supplier must determine the amount of the GST component of the consideration payable; and
  2. if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

Notices

All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
The following shall constitute proof of receipt:
1. proof by posting by registered post; or
2. proof of dispatch by email.
Receipt of a notice given under this Agreement will be deemed to occur:
1. in the case of a communication sent by pre-paid registered post, on the third business day after posting;
2. in the case of an email, on the business day immediately following the day of dispatch.
If a notice is sent via post, it must also be sent via email.

General provisions

Variation

An amendment or variation of any term of this Agreement must be in writing and signed by each party.

No Waiver
1. No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
2. Words or conduct referred to in clause 21.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel
Assignment, Novation and Other Dealings
1. The Consultant may assign or novate any rights that arise out of or under this Agreement without the consent of the Client.
2. Any rights of the Client that arise out of or under this Agreement are not assignable or capable of novation by the Client without the prior written consent of the Consultant, whose consent must not be unreasonably withheld.
Counterparts

This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.

Severability
1. If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
2. Clause 21.6(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.
No Merger

On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.

Survival

Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.

Time of the Essence

Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.

Remedies Cumulative

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.

Entire Agreement

This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

Governing Law and Jurisdiction
1. This Agreement is governed by the law in force in the State.
2. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
3. Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 21.12(a) on the basis that:
  1. any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or
  2. the courts described in clause 21.12(a) do not have jurisdiction.