TERMS AND CONDITIONS

1. Definitions and Interpretation
   • In this Agreement, unless the context otherwise requires or permits:

Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in Sydney NSW, Australia, and concludes at 5 pm on that day;

Confidential Information means, in respect of each party (Disclosing Party), all:

• information which is proprietary to, about or created by the Disclosing Party including, without limitation, any business plans, pitches, marketing, branding, forecasts, staffing, recruitment and all other information which is used or created by the Disclosing Party in relation to its business;
• information which relates to any actual or potential business, property or transaction (including this Agreement) in which the Disclosing Party may be or has been concerned or interested or information the disclosure of which could be detrimental to the interests of the Disclosing Party;
• information which is designated as being Confidential Information by the Disclosing Party; and
• information which from all the relevant circumstances could reasonably be assumed by the other party to be confidential and proprietary to the Disclosing Party or to any third party with whose consent or approval the Disclosing Party uses that information;

Fees means any fees, charges or expenses that are due and payable by the Client to the Service Provider under this Agreement;

Force Majeure Event means strikes, lock-outs, or other labour disputes, riots, civil disturbance, actions or inaction of governmental authorities, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, computer downtime, nuclear disasters or default of a common carrier;

GST means the Goods and Services Tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Intellectual Property Rights means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction throughout the world;

Moral Rights has the meaning ascribed to that term by the Copyright Act 1968 (Cth) and includes all rights of a similar nature throughout the world in any jurisdiction;

Services means the Services provided by the Service Provider under this Agreement (as amended from time to time in accordance with this Agreement); and

Works means any and all products, tangible or otherwise, developed, created or procured by the Service Provider in connection with this Agreement, including the Services and shall include any products that were developed, created or procured by the Service Provider prior to this Agreement that has been incorporated into or used to develop the products which the Service Provider is contracted to develop, create or procure to the Client under this Agreement (including products of that nature as agreed to by the parties or that may reasonably be supposed to have been described as such by the parties at the time of entering into this Agreement).

Website means the “Show Pony Graphics” website at https://www.spgraphics.com.au.

• In this Agreement, unless the context otherwise requires or permits:

• the use of headings, underlinings or marginal notes are included for convenience and ease of reference only and do not affect interpretation of this Agreement;
• references to a party will include as the context requires that party’s respective executors, administrators and successors;
• references to any agreement or document are references to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented, varied or replaced from time to time;
• references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions;
• references to a “breach of warranty” includes that warranty not being complete, true or accurate;
• the words “including” and “includes” and similar words are not words of limitation;
• a requirement to do any thing includes a requirement to cause that thing to be done and a requirement not to do any thing includes a requirement to prevent that thing being done;
• a provision of this Agreement is not to be construed adversely against a party solely on the ground that the party or its solicitors were responsible for the preparation of this Agreement or the particular provision thereof; and
• if the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a Business Day, that act, matter or thing may be done on the next Business Day.
  • In the event of and to the extent of any conflict between any provisions stated in this Agreement and it is unclear which provision is to prevail, the following is the order in which they shall have priority in descending order of importance:
    • the Principal Terms and Conditions;
    • any annexures and/or schedules to this Agreement; and
    • these General Terms and Conditions.

2. The Services and Provision of Services
   • General

• The Service Provider must exercise all due care and skill that is reasonably expected of a service provider of its kind and type, and having regard to the Service Provider’s knowledge of the facts, matters and circumstances, in the provision of the Services to the Client under this Agreement.
• In providing the Services or other materials developed by the Service Provider and provided to the Client in satisfaction of any obligations under this Agreement must comply with any requirements and specifications set out in this Agreement, including the Services.
• In providing the Services or other materials developed by the Service Provider and provided to the Client in satisfaction of any obligations under this Agreement must be reasonably fit for the purpose in which it was developed having regard to the Service Provider’s knowledge of the facts, matters and circumstances, including the terms and conditions of this Agreement.
• The parties acknowledge and agree that they must do all things reasonably necessary and appropriate to fulfil their obligations as described in this Agreement, including cooperating with the other party and any named third parties, that is required to facilitate the provision of the Services.
  • Content Provision
• Content shall be provided to the Service Provider on a complete page by page basis which includes text and photos for that page, or all Content provided at once.
• The Services does not include copywriting or professional textual proofing service.
• The Services do not include photography or stock photography purchases, animation, moving images, video, video editing or logo design unless specifically listed as a Service in Annexure A.
• The Services do not include photo editing, apart from re-sizing.
• The Client needs to notify the Service Provider when they provide any Content if they require the items returned.
• The Service Provider does not guarantee to keep copies of any Services created for the Client. It is the responsibility of the Client to ensure they have copies of their content, photos and images and Services created and backed up.
  • Testing
• The Service Provider will do their best to test all components of a Client’s website before going live.
• The Client, within five (5) business days of the website going live, shall notify the Service Provider in writing of any changes required. In the absence of such notice from Client, the Client’s website shall be deemed accepted and completed.
  • Changes and Additional Services
• The Services include up to two (2) content changes to each page listed in the Services in Annexure A.
• The Services include up to two (2) revisions to the overall design.
• The changes referred to in clauses 2.13 and 2.14 above are only available during website development before the website goes live and cannot be claimed after the website goes live.
• The Services does not include ongoing maintenance, unless specifically listed as a Service in Annexure A.
  • Website Programming and Software
• Website programs used are provided under the GP License This means no warranties or guarantees are included with the software and it is used at the Client’s own risk.
• The Service Provider does not guarantee the security of website programs or software used, for example, if they are hackable.
• Changes requested that are not provided with the initial program installation, for example, extra features that require additional custom coding, will be charged additionally.
• The Client cannot on sell, sell, or distribute the computer program or software provided by or developed by the Service Provider.
• The Service Provider will not be held responsible for any loss of Content or errors when using website software or programs.
• Only the Service Provider can make modifications to software developed by the Service Provider.
  • Support
• Basic Email support is included in the Services. Phone support is provided for six (6) months after a Client’s website goes live. After such time, phone support may be charged at an additional cost.
• The Service Provider makes no guarantee on the timing in which emails will be responded to, however the Service Provider will make every effort to reply in a timely manner.
  • Domain Names
• The Client gives the Service Provider permission to register a domain name on their behalf if a domain name is listed as a Service in Annexure A. Domain names are registered in the sole name of the Client. Domain name renewals are emailed, and payment is handled by an online system, unless the Client requests the Service Provider send a manual invoice at the time of their domain name renewal.
  • Webhosting
• The Service Provider provides basic webhosting plans. The Service Provider is not responsible for any server downtime, hacking of websites and any similar occurrences. The server is operated by a third party and is not controlled by the Service Provider.
• Client website’s cannot host streaming videos and/ or movies.
  • Bandwidth
• The Client agrees that bandwidth usage shall not exceed the number of gigabytes (GB) per month for the Services ordered by Client. If the Client exceeds the amount of allocated bandwidth their account automatically disables until the end of the month. Additional bandwidth can be purchased to re-enable the website. Bandwidth is calculated on a monthly basis.

3. Payment of Fees
   • The Client must pay the Fees due to the Service Provider in accordance with the Principal Terms and Conditions and this clause 3.
   • Any invoices issued by the Service Provider to the Client in respect of the Fees must be a valid tax invoice that complies with any applicable laws and regulations.
   • The Client may request the Service Provider to provide to the Client an itemised breakdown of the Fees, including details of the time spent completing any tasks and details of the nature of the tasks completed.
   • The parties acknowledge and agree that:

• the consideration due or payable to the Service Provider for the provision of the Services under this Agreement has been calculated without regard to, and is exclusive of, any GST;
• if any GST is imposed on any supply made under this Agreement, the supplying party may recover from the recipient party, in addition to any consideration payable for the supply, the GST amount provided that the supplying party has provided to the recipient party an Invoice; and
• if the recipient party is required to pay any GST amount in accordance with this clause 5, the recipient will pay the GST amount at the same time as the consideration is due for the supply of goods, service or any other thing under this Agreement.
  • If the Client disputes any Fees, it must provide written notice thereof to the Service Provider within fourteen (14) Business Days of receipt of any invoice relating to those Fees, including an explanation of the dispute.
  • Client’s website cannot go live until the full payment of the Fees is received by the Service Provider.
  • There are no refunds given for unused Services.
  • Payments of Fees must be made via cheque / money order (take 3 business days to clear), credit card (visa or mastercard for payments over $50.00) or direct deposit.
  • All invoices are delivered to the Client by email.
  • In the event of a cancellation the Client shall pay for any of the Services or part of the Services completed up until the cancellation request.
  • Service pricing are subject to change and reviewed annually.

4. Third Party Agents
   • Subject always to obtaining the prior written consent of the Client, the Service Provider may from time to time commission and engage Third Party Agents to assist the Service Provider to provide the Services.
   • In relation to all Third Party Agents that are commissioned and engaged by the Service Provider (if any) under this Agreement, the Service Provider acknowledges and agrees as follows:
     • all costs, fees, charges and expenses incurred in relation to the commissioning and engagement of the Third Party Agents are to be borne solely by the Service Provider;
     • that it is responsible for, and will supervise, the conduct of the Third Party Agents, including ensuring that the Third Party Agents comply with any matters in this Agreement regarding the provision of the Services or otherwise;
     • that the Third Party Agents have the requisite skill and expertise to provide whatever services or assistance to the Service Provider they have been commissioned and engaged to provide;
     • the Client will treat all services provided by any Third Party Agents in connection with this Agreement as being part of the Services being provided by the Service Provider under this Agreement;
     • any delays in the provision of the Services caused by the failure of the Third Party Agents for whatever reason, including the failure of the Third Party Agents to do work that is required to be done before the Services or any part thereof can be provided, will be treated as a delay by the Service Provider;
     • any defects, errors or faults in the provision or the nature of the Services caused by the Third Party Agents for whatever reason, including the failure of the Third Party Agents to do work in accordance with any instructions, will be treated as a defect, error or fault caused by the Service Provider;
     • to the extent the Service Provider is required to provide the Third Party Agents with any Confidential Information of the Client to provide the Services, the Service Provider must ensure that the Third Party Agents are bound by obligations which are no less restrictive than those in clause 7 below (Confidentiality and Privacy) in respect of dealings with such Confidential Information, and the Third Party Agents’ breach of such obligations shall be treated as a breach by the Service Provider;
     • to do all things necessary, at its own costs and expenses, to obtain all right, title and interest in and to any products, articles, materials, items or works of the Third Party Agents to ensure the compliance with the obligations under clause 5 (Intellectual Property) below;
     • to do all things necessary, at its own costs and expenses, to ensure that any services provided by the Third Party Agents will not otherwise be in violation of this Agreement or any other law applicable;
     • all acts and omissions committed by the Third Party Agents in respect of the provision of any services pursuant to this Agreement shall be treated as the acts and omissions of the Service Provider under this Agreement;
     • it is liable to the Client in respect of all loss or damage which the Client suffers as a direct or indirect result of the act or omission of a Third Party Agent committed in connection with this Agreement, and the Service Provider must indemnify the Client in respect of such loss or damage; and
     • notwithstanding any of the matters in this Agreement, the Service Provider is liable to the Client in respect of its obligations under this Agreement, including the provision of the Services, even if the Client permits the commission and engagement of the Third Party Agents pursuant to the terms and conditions of this Agreement.

5. Intellectual Property
   • In exchange for the entry into this Agreement by the Client, the Service Provider hereby acknowledges and agrees that the Service Provider irrevocably and unconditionally assigns (as a present and future assignment) and transfers to the Client, to the fullest extent of its respective rights and interests therein:

• all right, title and interest in and to the Works; and
• all Intellectual Property Rights which subsist in any and all of the Works,

throughout the world for the full period thereof (including without limitation any revisions, reversions, renewals and revivals) and thereafter in perpetuity or for so long as otherwise permitted by law, without reversion of any kind, all such assignments and transfers being effective from the Date of this Agreement (see Principal Terms and Conditions), free from any restriction, mortgage, encumbrance or other security interests, on the terms and subject to the conditions contained in this Agreement.

• The title and property in the Works shall pass to the Client, in accordance with clause 5.1 above, on and from the time such Works are developed, created or procured by the Service Provider.
• The Service Provider must, as soon as reasonably practical at the request of the Client, sign and execute any documents and do any acts and things, at its own costs and expenses, so requested by the Client that may be necessary to assign or transfer the Works and Intellectual Property Rights to the Client pursuant to clause 5.1 above.
• The Service Provider further acknowledges and agrees that:
  • it is entirely its responsibility to ensure that it has acquired all necessary rights, titles and interests in the Works from any third parties, including the Third Party Agents (if any), for the purpose of complying with its obligations under clause 5.1 above;
  • compliance with the matters in this clause 5 is independent of any other matters in this Agreement; and
  • the matters in this clause 5 shall apply notwithstanding the termination, expiration, suspension or cessation of this Agreement for any reason whatsoever, including, insofar as permitted by law, a finding by a court of competent jurisdiction that this Agreement (whether in whole or in part) is unenforceable or otherwise void, and the Service Provider will not rely on or raise any facts, matters or circumstances (including any claims, defences or demands) that would otherwise invalidate, impede or circumvent the operation of this clause 5 in the context of this Agreement to the detriment or prejudice of the Client.
• The Service Provider agrees that, to the extent that there are vested in it or any third party (Third Party) any Moral Rights in relation to any of the Works, the Service Provider respectively, irrevocably and unconditionally:

• to the extent permissible by law, waive such rights throughout the universe;
• if such Moral Rights are held by a Third Party, to do all things within the Service Provider’s ability to procure a full waiver and release from the Third Party, in favour of the Client, in respect of such Moral Rights; and
• consent to the Client and its successors, administrators, transferees, assigns and licensees doing, authorising, permitting or suffering to be done, any and all of the following acts:
  • the Works being changed, copied, edited, added to, taken from, adapted and/or translated, in any manner or context, by the Client, and any person authorised by the Client to do so, for any purpose;
  • failing to attribute the Service Provider or a Third Party as an author/creator/maker of any or all of the Works;
  • attributing any person or persons other than the Service Provider or a Third Party as an author/creator/maker of all or any of the Works; and
  • subjecting any or all of the Works to treatment of any kind where, including treatment of the kind canvassed in sections 195AI to 195AL of the Copyright Act 1968 (Cth).
  • For the avoidance of doubt, the Service Provider acknowledges that the matters in this clause 5 are critical to the Client’s legitimate commercial interests, such that each and every provision in this clause 5 shall be treated to be an essential term of this Agreement, a breach of which shall entitle the Client to damages for loss of bargain and any other damages consequential or incidental to the loss of the ability to exercise the full rights, titles and interests to the Works as contemplated by this clause 5 (for the avoidance of doubt, clause 10.1 (Limitation of Liability) in these General Terms and Conditions shall not apply in respect of the Service Provider’s liability to the Client for a breach of any provisions in this clause 5).
  • The Client guarantees that any content they provide to us, they own or have permission to use. The Service Provider excludes all liability in relation to infringement of Intellectual Property Rights caused as a result of the Client.
  • The Client does not own any third party software used by the Service Provider, which is primarily wordpress.
  • Intellectual Property Rights not designed by the Service Provider remain the property of their respective owners.
  • Working Files are not included as part of the Services and must be purchased additionally.
  • The credit to the Service Provider “Designed by Show Pony Graphics” and a link to the “Show Pony Graphics” website at https://www.spgraphics.com.au (Website) must remain at the bottom of the website. This must not be removed without the prior written consent from the Service Provider.

6. Warranties and Indemnities
   • The Service Provider hereby warrants, represents, undertakes and agrees that:
     • the Service Provider has the full right, power and authority to enter into and perform this Agreement and to assign and transfer all rights and benefits hereby granted to the Client free from all encumbrances;
     • it must comply with the Privacy Act 1988 (Cth) (including the Australian Privacy Principles thereunder as if it were an “APP entity” as defined in that legislation) when handling the Client’s data and will not disclose or deal with the Client’s data, including by way of sale, lease, disposal, publication, transmission to a third party or to otherwise use it in any other way, for any purpose without the Client’s prior permission; and
     • it must comply with all applicable laws when providing the Services.

7. Confidentiality and Privacy
   • Each party (Recipient) agrees at all times during and for so long as is legally permissible after the termination, expiration or cessation of this Agreement to keep confidential the Confidential Information of the other party and will not disclose or discuss the same without the prior written approval of that other party, except:
     • as specifically provided by this Agreement or as permitted or required by law;
     • to the extent required to perform any of the Recipient’s obligations under this Agreement;
     • to the extent required to instruct the Recipient’s professional advisers in relation to the preparation, completion and performance of this Agreement;
     • where the information is or becomes public knowledge, but not if it is because the Recipient has contravened a confidentiality obligation under this clause 7, and such public knowledge is notified and agreed in writing by the parties; or
     • where the information becomes known to the Recipient after the date of this Agreement other than as the result of a breach of duty of confidentiality to the other party and such subsequent knowledge is notified and agreed in writing between the parties.
   • The Recipient must not sell, transfer, assign or otherwise dispose of or grant any licence in relation to any Confidential Information or make available copies (whether by photocopying, photographic reproduction or by electronically recorded data) of any Confidential Information to any person other than with the prior written consent of the other party.
8. Dispute Resolution
   • In the event of a dispute, controversy or claim (Dispute), arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, the party raising such Dispute must immediately notify the other party of the existence and nature of the Dispute by serving a notice on the other party setting out detailed particulars of the Dispute including, if appropriate, references to documents and provisions which relate to the Dispute, and the parties shall use their best endeavours to immediately resolve the Dispute amicably.
   • The parties agree that in the event of a Dispute, a party must not commence any court or arbitration proceedings relating to the Dispute until it has made reasonable attempts to resolve the Dispute with the other party as per clause 8.1 above, and not, in any case, before the expiration of twenty-one (21) Business Days after the Dispute was notified to the other party.
   • Nothing in this clause 8 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with a Dispute without first having to attempt to resolve the Dispute in accordance with this clause 8.
9. Termination
   • Either party to this Agreement may, for any reason whatsoever, terminate this Agreement by serving fourteen (14) days’ written notice to the other party (Notice of Termination), and such termination shall be effective on the lapse of the seven (7) days from the date the Notice of Termination was served on the other party. The Service Provider will be paid for work already completed.
   • An “Event of Default” occurs:
     • in relation to a party (the “Defaulting Party”) if:
       • the Defaulting Party has a liquidator or provisional liquidator appointed to it, if such appointment is not removed within three (3) months of the initial appointment;
       • the Defaulting Party resolves to wind up or is subject to an order to wind up (other than for voluntary reconstruction);
       • the Defaulting Party has a receiver, receiver and manager or official manager properly appointed to it or in respect of a substantial proportion of its assets or undertakings, if such appointment is not removed within three (3) months of the initial appointment;
       • a court or tribunal makes an order that the Defaulting Party be wound up in insolvency, unless that party successfully appeals such order;
       • a Client’s website provide links to, display or make reference to, over 18+ sexual material, nudity, pornography, content that is threatening, harassing, controversial, obscene, objective about other people, discusses or displays illegal activities, illegal content and any content that could violate state or national laws;
       • the Client uses email Services provided to them to send emails that contain material that is offensive to others, contains over 18+ rated material or offensive statements; t
       • the Client sends bulk emails or posts to news groups that in way that do not conform with the rules of that group that can be traced back to the Service Provider.
     • Where an Event of Default occurs in relation to a party, the other party may terminate this Agreement by notice in writing to the party in respect of whom an Event of Default has occurred, and such termination becomes effective on the date that it is given to or served on the relevant party.
     • Where the Client has caused the Default Event, the Service Provider can, at its sole discretion, have the website content immediately removed and/ or disable the Client’s website until the content is removed. Where possible the Service Provider will give the Client five (5) Business Days notice to remove the offending material, however the Client automatically grants the Service Provider access and permission to remove offending material from the Client’s website that the Service Provider deems to constitute an Event of Default.
     • Upon termination or expiration of this Agreement for whatever reason, the provisions in clauses 5 (Intellectual Property), 6.3 (Indemnities) and 7 (Confidential Information) of these General Terms and Conditions shall continue to apply. In addition, any Fees that are due and outstanding or that have accrued up to the date of termination of this Agreement shall remain payable by the Client to the Service Provider insofar as it can be demonstrated that the Fees are referable to that part of the Services which have been successfully completed or provided in accordance with this Agreement.

10. Limitation of Liability
    • Unless otherwise expressly stated to the contrary in this Agreement, in no event will either party have any liability to the other in contract, tort (including negligence) or otherwise, arising under or in connection with this Agreement, in respect of any of the following kinds of losses or damages:

• loss of revenue, loss of profit, loss of goodwill, loss of reputation, loss of anticipated savings, loss of business, loss of contracts; and
• any indirect, special or consequential loss or damage,
  • even if the party on whose part liability is alleged has been advised of the possibility of such losses or damages, and both parties shall use their reasonable endeavours to mitigate any loss, damage, liability, expenses and costs suffered by them under or arising out of this Agreement.
  • The Service Provider is not liable for non-provision or delay in the provision of any Services by the Service Provider to the extent such non-provision or delay is attributable solely to the acts or omissions of the Client within the Client’s reasonable control (excluding the exercise by the Client of any lawful rights or rights under this Agreement that may have the effect of delaying the provision of the Services).
  • Each party acknowledges that the allocation of risk in this Agreement (including the exclusions and limitations set out in this clause 10) has been freely negotiated at arm’s length and is regarded by it as reasonable.
  • All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to this Agreement, that are not contained herein, are excluded to the fullest extent permitted by law.
  • Nothing in this Agreement shall operate to limit or exclude either party’s liability to the other for:
• death or personal injury caused by that party’s negligence;
• any breach of clauses 4 (Third Party Agents), 5 (Intellectual Property), 6 (Warranties and Indemnities) or 7 (Confidentiality) of this Agreement;
• any breach of this Agreement by a party arising from fraudulent or reckless conduct by that party; or
• any other liability which cannot be limited or excluded by law.

Backups

• Backing up is performed as a courtesy only and a backup copy or recent copy may not always be
• The Client agrees to hold the Service Provider harmless and not responsible for any damage or loss of business or any cost arising from our backup systems failing in any way for whatever reason.
• The Service Provider reserves the right to charge a fee should the Client require restoration of a previous backup version of the Client’s website from the server.
• It is the Clients responsibility to maintain backups of their website. The Client can backup their account via their hosting control panel.
• The Service Provider sends out renewal notices by email thirty (30) days before the hosting account is due to expire. It is the Client’s responsibility to make sure the Service Provider has their current email address.
• Webhosting services will be disabled if they exceed ten (10) Business Days after the payment due date. Webhosting services will be completely removed if they exceed thirty (30) Business Days after the payment is due. This means that any files and/ or content that remains on the hosting will be removed and will be irretrievable. It is the responsibility of the Client to ensure they have backed up the entire account and downloaded a copy to their local computer.

Loss of service

• The Service Provider will endeavour to maintain network stability and satisfactory service levels, however:
  • this Service may not always be available at all times. The Service Provider will do everything it can to maintain the availability of the Service however a certain amount of downtime can be expected; and
  • the Client releases the Service Provider from any claim or potential claim with relation to outages and any loss of business or damage suffered by the Client or any third party.
• The Client is solely responsible for the content stored their webhosting account.

11. Relationship of Parties
    • The Service Provider’s relationship with Client will be that of independent contractors. Neither the Service Provider nor Client will have (and will not represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name.
12. Force Majeure
    • Notwithstanding any other provision in this Agreement, no default, delay or failure to perform on the part of any party will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with such default, including, but not limited to a Force Majeure Event.
    • In the case of the happening of any such Force Majeure Event, the time for performance required by a party under this Agreement will be extended for any period during which performance is prevented by the event.
    • Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds thirty (30) Business Days, any party may immediately terminate this Agreement on providing notice to the other parties, such notice to take effect ten (10) Business Days after the date of such notice.
13. General
    • This Agreement may only be amended, supplemented or replaced by a document in writing signed by the parties.
    • Neither party may assign or otherwise transfer this Agreement or any rights or obligations under this Agreement without prior written consent of the other party, such consent not to be unreasonably withheld. This Agreement, including without limitation the rights, consents and waivers granted in this Agreement, will enure to the benefit each party and the successors, Clients and permitted Clients of each party.
    • Any failure or delay by one party to compel performance by another party of any of the terms and conditions of this Agreement does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the first party to enforce them against the other party at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.
    • A waiver by a party of a provision or of a right under this Agreement is only binding on the party granting the waiver if it is given in writing signed by that party and is only effective in the specific instance and for the specific purpose for which it is given.
    • A party may give its approval or consent conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise.
    • All notices and consents required or permitted to be given under this Agreement must be in writing and given by personal service, mail (postage prepaid) or email to the parties at their address as set out in the Principal Terms and Conditions or to such other address as either party may designate to the other by written notice.
    • Each party must promptly at its own cost do all things (including executing and delivering any and all deeds, agreements and other documents) necessary or desirable to give full effect to the terms of this Agreement and the transactions contemplated by this Agreement.
    • All representations and warranties in this Agreement will survive the execution and delivery of this Agreement and the completion of the transactions contemplated by it.
    • This Agreement constitutes the full and complete agreement between the parties relating to the subject matter contained in this Agreement and supersedes any and all previous agreements, understandings, negotiations and representations between the parties in respect of all matters dealt with in this Agreement.
    • Any provision of this Agreement which is prohibited, unenforceable or invalid in whole or in part is only ineffective to the extent of the prohibition, unenforceability or invalidity and this does not affect the remaining part of that provision or the other provisions of this Agreement, which will continue in full force and effect.
    • This Agreement may be executed in counterparts and exchanged by email or facsimile.
    • The terms of this Agreement are governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia.