General Terms & Conditions

These Terms and Conditions ("Terms and Conditions”) apply to the Services to be provided by ABL Digital Media Pty Ltd (ACN 676 163 812) of Citigroup Centre, Suite 38B, Level 38, 2 Park Street, Sydney, NSW 2000 (Agency) for the Company.

RECITALS

The Agency is in the business of creating and delivering communications material and services for purposes including advertising, and online and direct marketing.
The Company wishes to engage the Agency, and the Agency has agreed, to provide the Services for the Term under the terms of this Agreement.

AGREED TERMS

Defined terms and interpretation

Definitions

Agency Personnel means Personnel of the Agency (including, for the avoidance of doubt, the Key Personnel), its subcontractors, and its Third Party suppliers;

Agreement means the Terms and Conditions including the recitals and the Order Form;

Business Day means a day on which the Company is open for business in New South Wales, Australia excluding Saturdays, Sundays and public holidays;

Campaign means a strategy designed to promote the goods, services and/or brand of the Company;

Campaign Material means any and all advertising material, brand and marketing communications including without limitation, ideas, designs, concepts, original compositions, printing templates and pro-formas, brochures, artwork, finished advertisements, radio and television commercials and all trade marks and trade names, brand names, trade symbols, logos, slogans or other trade indicia purchased, prepared, produced, created, developed or acquired on behalf of the Company pursuant to this Agreement, but does not include the Company Material or Pre Existing Material;

Campaign Plan means a guideline for the development and execution of a Campaign including key objectives, events, deliverables and relevant dates;

Commencement Date means the date on which the Agency shall commence providing its services as outlined in the Order Form;

Company Material means any material provided to the Agency by or at the direction of the Company for the purposes of this Agreement, including without limitation, documents, equipment, software, advertising or other content and information;

Confidential Information means all confidential information of a party or its Related Bodies Corporate (as defined in the Corporations Act) including without limitation information, in any form or media, relating to the business, systems or affairs of a party or its client, suppliers or affiliates, such as any strategies, concepts, budgets, trading terms, plans, projections, methods, processes, systems, know how, trade secrets, computer software and programs, research data, client lists, intellectual property, business or financial information, employee, customer, financier or supplier information, or any dealings, transactions, affairs, and the fact that the parties are parties to this Agreement or a contract, or any other information in any form which is or has been:

disclosed under or in connection with this Agreement, whether orally, electronically, in writing or otherwise; or
learnt or acquired in the performance of this Agreement,

other than any such information which:

was in the public domain at the time of its provision;
became part of the public domain after its provision, otherwise than through a disclosure by the other party or any person to whom the other party has disclosed that information; or
is or came lawfully into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence;

Corporations Act means the Corporations Act 2001 (Cth) as amended from time to time;

Disbursement means the out of pocket expenses (at cost) properly and reasonably incurred by the Agency in performing the Services;

Dispute Notice has the meaning given to that term in clause 19;

Fee means any fees the Company will pay the Agency as remuneration under this Agreement as set out in the applicable Order Form, including any Monthly Services Fee or Set-Up Fees, but expressly excludes any Disbursements, Media Expenses and/or Third Party Expenses;

Further Term has the meaning given to that term in clause 3(b);

GST means any goods and services tax, value added tax or other like tax;

GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Initial Term has the meaning given to that term in clause 3(a);

Insolvency Event means the occurrence of any one or more of the following events in relation to either party:

an application made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, unless the application is withdrawn, struck out or dismissed within 7 days of it being made;
the appointment of a liquidator or provisional liquidator;
the appointment of an administrator or a controller to any of its assets;
that party or its holding company enters into an arrangement or composition with one or more of its creditors, or enters into an assignment for the benefit of one or more of its creditors;
that party proposes a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors, or its winding up or dissolution;
that party is insolvent as disclosed in its accounts or otherwise states that it is insolvent, or is presumed to be insolvent, under an applicable law;
that party becomes insolvent under administration, or action is taken which could result in such event;
that party is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act;
a notice is issued under section 601AA or 601AB of the Corporations Act;
a writ of execution is levied against that party or its property;
that party ceases to carry on business or threatens to do so; or
anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above clauses of this definition;

Intellectual Property Rights means all existing and future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing or come to exist in Australia or otherwise;

Key Personnel means Agency Personnel involved in the Agreement;

Laws means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory mandatory codes of conduct, writs, orders, injunctions, judgements, and Australian generally accepted accounting principles;

Losses means all losses, liabilities, damages and claims, and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgement, appeal, interest and penalties);

Media Expenses means any costs payable to a media vendor in respect of media space and time booked on the Company’s behalf in relation to a media booking and as set out in the applicable Media Expense Authority Form.

Media Expense Authority Form means the document setting out any Media Expenses in respect of a media booking submitted by the Agency to the Company in the form determined by the Agency from time to time.

Monthly Services Fee means the fixed monthly fee payable by the Company for the provision of the Services as set out in the Order Form;

Order Form means the Advertising Order Form and/or Media Expense Authority Form detailing the campaign information, services and its related campaign plan and schedule;

Personnel means all persons acting on behalf of a party or for whom a party is responsible, including employees, consultants, sub-contractors and agents;

Pre Existing Material means materials that are already owned or used by the Agency prior to providing the Services for the Company, or are subsequently created, developed, owned or used by the Agency other than in the course of providing the Services, that are then used by the Agency in providing the Services, including any proprietary software, tools, templates, systems, property, know how, business processes and methodologies and any Intellectual Property Rights vested therein;

Services has the meaning given to that term in clause 4(a);

Set-Up Fee means a one-time fee for the set-up of a Campaign or other Services;

Taxes means any taxes or fees with respect to Services provided under this Agreement assessed, imposed, levied or charged by any government entity;

Term means the aggregate of the Initial Term and any Further Term(s), where applicable;

Third Party Expenses means the fees and charges of third-party suppliers engaged by the Agency to supply products and services in connection with the performance of the Services subject to clause 7.5; and

Third Party Material has the meaning given to that term in clause 9.3.

Interpretation

In this Agreement the following rules of interpretation apply unless the contrary intention appears:

Headings are for convenience only and do not affect the interpretation of this Agreement.
The singular includes the plural and vice versa.
Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
The words "such as", "including", "particularly" and similar expressions are not used as nor are intended to be interpreted as words of limitation.

A reference to:

a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
a thing (including but not limited to a chose in action or other right) includes a part of that thing;
a party includes its successors and permitted assigns;
a document includes all amendments or supplements to that document;
a clause, term, party, or attachment is a reference to a clause or term of, or party, or attachment to this Agreement;
this Agreement includes all Order Forms, Media Expense Authority Forms and attachments to each;
a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgement, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and
a monetary amount is in Australian dollars.

When the day on which something must be done is not a Business Day, that thing must be done on the following Business Day.

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.

Appointment and exclusivity

On and from the Commencement Date:

the Company appoints the Agency to be the non-exclusive provider of the Services to the Company during the Term; and the Agency accepts the appointment referred to in clause 2(a)(i).

The Agency acknowledges that:

the Company is not obliged to purchase any Services from the Agency except as provided in this Agreement;
the volume of Services which the Company requires the Agency to provide under this Agreement may vary from time to time.

Term

This Agreement commences on the Commencement Date and continues for an initial period of 6 months (Initial Term) unless terminated in accordance with any express right of termination set out in this Agreement.

Following the expiry of the Initial Term, this Agreement will automatically renew for further terms each of 6 months (Further Term), on the same terms and conditions as set out in this Agreement, unless:

either party gives written notice to the other party advising that it does not wish to renew the Agreement for a Further Term at least 45 days prior to the end of the Initial Term; or
this Agreement otherwise terminates in accordance with any other express right of termination set out in this Agreement.

Agency obligations

The Agency must provide:

the services described in the Order Form; and

any related or incidental services, functions or responsibilities not specifically described in the Agreement which are required for the proper performance and provision of the services referred to in clause 4(a)(i), (together, the Services).

The Agency must perform the Services:

in accordance with any detailed Order Form;
with due skill, care, competence and diligence; and
otherwise in accordance with the reasonable directions of the Company from time to time.

The Agency must:

- consult with the Company regarding the performance of the Services;

- comply with, and ensure that the Services comply with, all applicable Laws;

- obtain and maintain all consents, approvals, licences or authorisations which are necessary for the Company to proceed with a Campaign and which are necessary for the Agency to provide the Services; and

- ensure that third-party suppliers properly execute their commitments and use best endeavours to minimise loss to the Company if such suppliers fail

to do so.

All equipment, materials, workmanship, methods and products used or supplied by the Agency in the performance of the Services must:

comply with the requirements of the Agreement (including any specific requirements set out in the Order Form); and

otherwise be of a kind acceptable to the Company for the satisfactory performance of the Services.

Approvals and authority

Prior to commencing any Campaign, the Agency must provide to the Company a Campaign Plan as set out in clause 6 and the Company must approve the Campaign Plan in writing.

After the Company has approved a Campaign Plan in accordance with clause 6, the Agency must submit to the Company for prior approval all copy, media plan, budget, artwork, storyboards, recordings and/or script with an updated services cost estimate, which approval authorises the Agency to proceed with the Services in the following manner:

the Company's written approval of an updated services cost estimate and associated copy, layouts and/or artwork authorises the Agency to purchase or contract for the preparation of the approved Campaign and prepare proofs, which must be submitted to the Company for prior approval;
the Company's written approval of proofs authorises the Agency to publish the approved proofs;
the Company's written approval of digital, television, cinema and radio scripts and/or storyboard authorises the Agency to enter production contracts in respect of them;
the Company's written approval of films or recording authorises the Agency to broadcast the approved film or recording; and
the Company's written approval of media schedules and associated expenses authorises the Agency to make reservations and contracts for advertising space, time and other facilities in relation to the approved schedules and expenses under the terms and conditions required by media or suppliers.
At any time upon reasonable notice from the Company, the Company may request the Agency to cancel or amend any Services, provided that: (a) the Agency can do so within its contractual obligations to third parties; and (b) the Company pays the Agency any remuneration for work performed up to the date of such notice and any charges or expenses to which the Agency is committed including any non cancellable third party charges.

Campaign Plan

The Campaign Plan must be prepared by the Agency and provided to the Company prior to the commencement of each Campaign and contain the following:

informed estimates of the costs which the Agency reasonably anticipates will be payable by the Company in completing the Campaign including, but not limited to, all Fees, Third Party Expenses and all Disbursements;

an outline of the creative concept and requirements (if necessary);
an outline of the anticipated production schedule;
a Campaign timeline, which is to be aligned with the associated media plan provided by the Company to the Agency from time to time; and
any other information requested by the Company in writing.

The Company may, in its discretion, reject or accept a Campaign Plan in whole or in part. In the event the Company rejects a Campaign Plan in whole or in part, the Company must provide written notice to the Agency setting out the reasons for rejecting the Campaign Plan.

Without limiting any other term of this Agreement, the Company may request changes to a Campaign Plan after it has been agreed between the parties by submitting to the Agency a written request containing the details of the change(s).

The Agency must consider the request and notify the Company within 2 Business Days after receiving such request, whether it agrees with the requested change. The Company and the Agency must negotiate in good faith to reach an agreement about the nature of the change and its impact on all aspects of the current agreed Campaign Plan, including the Campaign budget.

Payment

Monthly Services Fee

The Monthly Services Fee is payable at the time, and in the manner, set out in the Order Form.

For the avoidance of doubt, the Agency acknowledges that:

With the exception of any Set-Up Fees, all services, functions, activities and responsibilities performed by the Agency under or in connection with this Agreement are included within the Monthly Services Fee; and

the only additional fees and charges payable by the Company for the performance of services, functions, activities and responsibilities by the Agency are Disbursements, Third Party Expenses and Media Expenses, which are only payable in accordance with the provisions of this Agreement.

Third Party Expenses

The Agency may only invoice the Company for Third Party Expenses incurred in connection with the Agency's performance of the Services, and the Company will be liable to pay such Third Party Expenses, provided that:

the Agency has obtained the Company's prior written approval for the appointment of the relevant Third Party supplier; and
the Agency has provided the Company with an estimate of the Third Party Expenses prior to incurring same.

Media Expenses

The Company shall pay all Media Expenses as approved by the Company.

Invoicing and Payment

Once an Order Form and Media Expense Authority Form has been accepted by the Agency, the Company will be responsible for payment in full of all amounts payable, except as may otherwise be stated in the Order Form. The Monthly Services Fee, as noted on the Order Form is generally divided into items (e.g. Search Engine Marketing, Campaign Management & Optimisation). This Monthly Service Fee is generally a recurring fee that the Company will be charged for the specific service the Company has purchased as shown on the Order Form.

If there are Set-Up Fees (as set forth on the Order Form) that are payable for Services provided for a Campaign, such Set-Up Fees shall be paid in advance.

The Agency must issue a properly rendered invoice in arrears on or about the first day of each month and in accordance with any other billing arrangements set out in the Order Form.
Each properly rendered invoice will be due and payable within 30 days of the invoice being received by the Company.
Each invoice must:
separately state the relevant amounts which apply to the Services;
be a tax invoice in Australian dollars;
include the name of the Campaign to which any Services are related;
specify the names of any of the Company-approved Third Party suppliers that have provided any goods or services in connection with a Campaign, or otherwise in connection with the Agency's performance of the Services, and attach all relevant invoices for such suppliers;
otherwise be in such detail as the Company may require for its internal accounting needs, as specified by the Company from time to time.

Manner of Payment:

(a)The Company must pay all amounts payable under this Agreement either by credit card, direct debit or electronic funds transfer.

(b)The Company will be required to agree to the applicable payment authorisation form(s) which also permit the Agency to recover any outstanding amount(s) in an authorised manner.

(c)In the case of payment through direct debit, no amounts owing is considered paid until the electronic direct debit has been cleared and received by the Agency’s bank, which can take up to 2 to 3 business days.

(d)If full payment of any amount payable is not received on or before the date that such payment is due, the Agency may (without limiting any other right hereunder) at its sole election and discretion do one or more of the following:

(i)cancel any payment terms provided to the Company and require immediate payment in full of all outstanding amounts;

(ii)immediately and without notice, suspend the broadcast or publishing of any advertising or suspend or cancel all advertising orders of the Company and terminate the Agreement in relation to advertising not yet broadcast, published or communicated not yet provided;

(iii)require cash pre-payment for any further Services;

(iv)impose interest at the rate of 2 per cent (two percent) above the Reserve Bank’s 90 day Bill Rate on all sums that remain unpaid until full payment is received;

(v)commence legal proceedings against the Company for recovery of any outstanding amounts;

(vi)recover from the Company all costs incurred by the Agency in the recovery of any amount owed by the Company including any debt recovery or legal costs on a full indemnity basis; and

(vii)take any such other steps as the Agency considers appropriate or necessary to recover any amount.

(e)Without limiting any other right or obligation of a party hereunder, the Company must notify the Agency as soon as practicable of any change, event, fact or circumstance affecting the Company which may impact its ability to pay any amount.

(f)At any time requested during the Term, the Company agrees to provide all information as is reasonably requested by the Agency to determine the creditworthiness of the Company and its suitability and ability or otherwise to meet payment of any amount.

Taxes

Any consideration or amount payable under this Agreement, including any non-monetary consideration (as reduced in accordance with clause 8(c) if required) (Consideration) is exclusive of GST.

If GST is or becomes payable on a Supply (as defined in the GST Law) made under or in connection with this Agreement, an additional amount is payable by the party providing Consideration (as defined in the GST Law) for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.

Despite any other provision in this Agreement, if an amount payable under or in connection with this Agreement (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise, the amount payable must be reduced by the amount of any Input Tax Credit (as defined in the GST Law) to which that party, or a related party, is entitled in respect of that amount incurred.

Intellectual Property Rights

Company Material

All legal and beneficial ownership of all Intellectual Property Rights in the Company Material will remain or be vested in the Company.
Nothing in this Agreement will be taken to constitute a transfer, assignment or grant of any ownership rights in any of the Company Material.
The Company grants to the Agency a non-exclusive licence for the Term to use the Company Material solely for the purpose, and to the extent necessary, to perform the Services in accordance with the Agreement.

Campaign Material

The Agency:

absolutely and unconditionally assigns, and must procure from all subcontractors and, where possible Third Party suppliers, the assignment of, all right, title and interest in all Intellectual Property Rights in any Campaign Material to the Company upon the payment of all applicable Fees;
must, upon request by the Company, execute all documents and perform all acts necessary to vest all Intellectual Property Rights in the Campaign Material in the Company; and
may only use the Campaign Material for the sole purpose of providing the Services.

The Company acknowledges that in respect of any presentations, submissions, and creative concepts presented to the Company by the Agency and not accepted or adopted by the Company in the development of a Campaign, all Intellectual Property Rights subsisting in such material will remain owned by the Agency, and any original ideas or concepts relating to such material will remain the Confidential Information of the Agency.

Third Party Materials

In the case of material commissioned by the Agency from a Third Party or licensed by the Agency from a Third Party for the purpose of providing the Services (Third Party Material), the Agency must:

notify the Company that it intends to use the Third Party Material; and
obtain an assignment or a licence of all necessary rights (including any or all Intellectual Property Rights), as appropriate, on such reasonable terms that can be negotiated in respect of the Third Party Material, including an indemnity from the assignor or licensor, as the case may be, against any claims or proceedings which may be issued or threatened by any Third Party against the Agency and/or the Company for infringement of rights (including Intellectual Property Rights) in respect of the Agency's and/or the Company's use of the Third Party Materials in the agreed territories, term and media.

If the Agency is unable to secure the rights as set out in clause 9.3(a) to Third Party Materials (including the indemnity referred to in that clause), the Agency must:

immediately notify the Company;
not use the relevant Third Party Materials without the Company's express written approval; and
assist the Company, at the Agency's expense, to procure a licence of the Third Party Materials directly.

Any Fees associated with a license for any Third Party Material will be borne by the Company, subject to prior written approval and the Company will comply with any limitations on use as notified to it by the Agency.

If the Company directly commissions the Third Party to provide the Third Party Materials, the Company will be responsible for obtaining any requisite licence from the copyright owners, be responsible and accept all risk and liability for the use of those Third Party Materials and be responsible for the payment of any relevant fees to third parties.

Confidentiality

Each party acknowledges that the Confidential Information of the other party is valuable to the other party and, subject to clause 10(b), undertakes to keep the Confidential Information of the other party secret and to protect and preserve the

confidential nature and secrecy of the Confidential Information of the other party.

A party may disclose Confidential Information of the other party:

to its legal and professional advisers in order to advise that party in connection with the exercise of rights and performance of obligation under this Agreement;
to any representative of that party, provided that the disclosure is made for the purpose of this Agreement and the party imposes an obligation upon the representative to maintain the confidentiality of that material; and
to the extent disclosure is required by an applicable law or court order, provided that the disclosing party gives reasonable advance notice of such disclosure to the other party in order that the other party has an opportunity to attempt to preclude or limit such disclosure.

Personnel

The Agency must:

ensure that the Agency Personnel, including the Key Personnel:
are skilled, competent, proficient and experienced in performing the Services to be performed by them;
have appropriate qualifications and all necessary authorisations or permits to perform the Services in the relevant jurisdiction; and
meet the Company's reasonable requirements as notified from time to time; and
use reasonable endeavours to ensure the continuity of the Agency Personnel.

Subcontracting

The Agency may from time to time sub-contract any of its rights or obligations under this Agreement.

In the event that the Agency sub-contracts any of its obligations under this Agreement, the Agency:

will remain fully responsible for the performance of its obligations under this Agreement;

must procure that the sub-contractor complies with the obligations of the Agency under this Agreement as if it were a party to this Agreement; and

is responsible for all acts or omissions of such sub-contractors as if they were the Agency's acts or omissions.

Force Majeure

The Agency or the Company shall not be liable or responsible to each other, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make previously owed payments to the Agency hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the Agency and the Company’s reasonable control, including, without limitation, the following force majeure events

For the purpose of this Agreement (“Force Majeure Event(s)”) are but are not limited to:
1. Inclement weather, flood, fire, earthquake or explosion;
2. war, invasion, hostilities (whether war is declared or not),
3. terrorist threats or acts, riot or other civil unrest;
4. government order or law;
5. actions, embargoes or blockades in effect on or after the date of this Agreement;
6. action by any governmental authority;
7. national or regional emergency;
8. strikes, labour stoppages or slowdowns or other industrial disturbances;
9. epidemic, pandemic or similar influenza or bacterial infection;
10. national emergency state; or
11. shortage of power or transportation facilities; and other similar events beyond the reasonable control of the Agency and the Company.

Warranties

Each party warrants and represents that:

it has full power and authority to enter the Agreement by executing the Order Form and to perform and observe all of the terms and provisions of the Agreement; and
the Order Form has been duly executed by each party and is a legal and binding agreement of each party enforceable against it in accordance with the terms of the Agreement.

The Agency warrants and represents to the Company, on an ongoing basis, that:

it will comply with all Laws and the requirements of any relevant authority or regulator relating to the Services;
it has and will continue during the Term to have all licences, authorisations, consents, approval and permits required by all applicable Laws in order to perform its obligations under this Agreement, and otherwise comply and will continue to comply with all Laws applicable to the performance of those obligations;
it will perform the Services with due care and skill, and has knowledge of best industry practices and procedures necessary to undertake the Services;
the provision of the Services by the Agency, and their use by the Company, will not infringe the rights (including Intellectual Property Rights) of any Third Party; and
it will not do anything or omit to do anything which, in the Company's reasonable opinion, may adversely affect the Company business or brand or the reputation of the Company.

The Company warrants and represents to the Agency that:

the Company Materials do not infringe the rights (including Intellectual Property Rights) of any Third Party, and that the information contained in the Company Materials is true, accurate, not misleading or deceptive, or likely to mislead or deceive, can be substantiated and complies with any applicable Laws;
it will comply with all Laws and the requirements of any relevant authority or regulator; and
it has and will continue during the Term to have all licences, authorisations, consents, approvals and permits required by all applicable Laws in order to perform its obligations under this Agreement, and otherwise comply and will continue to comply with all Laws applicable to the performance of those obligations.

Indemnities

Subject to the terms of clause 16 but without limiting any other indemnity obligation specified in this Agreement, the Company indemnifies, and releases, the Agency and its Personnel, from and against all Losses arising from or relating to:

the death of, or personal injury to, any person, to the extent caused by any act or omission of the Company or any of its Personnel;
any damage to, or loss or destruction of, any real or tangible personal property, to the extent caused by any act or omission of the Company or any of its Personnel;
any breach by the Company of its obligations under clause 10;
the Agency complying with or acting in accordance with express directions or instructions provided by the Company in connection with the provision of the Services;
the Company Materials;
any third party claim arising directly or indirectly from:
a breach by the Company of any of its obligations or warranties under this Agreement; or
a negligent, wilful or otherwise wrongful act or omission of the Company or any of its subcontractors, or any of the Company's Personnel;
fraudulent or dishonest acts or omissions of any of the Company's Personnel; and
any breach by the Company of its obligations or warranties under this Agreement.

Subject to the terms of clause 16 but without limiting any other indemnity obligation specified in this Agreement, the Agency indemnifies, and releases, the Company and its Personnel, from and against all Losses arising from or relating to:
1. a breach of this Agreement by the Agency; or
2. a negligent act or omission by the Agency in providing the Services under this Agreement.

Liability

The Agency is not liable under this Agreement for a failure to perform any Services, or any missed media opportunities, deadlines, any delay or omission of media placement, or any error in any advertisement, which arise directly or indirectly in connection with any delay (including a failure to provide timely approval) or act or omission of the Company.

The Agency shall have no liability under this Agreement which arises as a result of:

modification of the Campaign Material without the Agency's consent;
combination of the Campaign Material with items not approved by the Agency;
use of the Campaign Material other than their intended use under this Agreement; or
changes to a third party platform or specification during the course of a Campaign, to the extent any portion of the Services rely on same.

To the extent permitted by law the Agency's maximum aggregate liability arising out of or in connection with this Agreement is limited to the total amount of Fees payable in the applicable Order Form.

Without limitation and to the extent permitted by law, neither party shall be liable in any circumstances for any indirect, special, economic or consequential loss or damage, including without limitation loss of income, profits, business, goodwill or data, or loss of anticipated savings.

Termination

Either party may terminate this Agreement at any time by giving the other party 60 calendar days prior written notice.

Without limiting any other right of termination at law or otherwise, the Company may terminate this Agreement immediately by giving written notice if:

the Agency materially breaches a provision of this Agreement and does not cure that breach within 30 days of the date on which the Company provided the Agency with a written notice identifying the breach and requesting that it be cured;

the Agency breaches a provision of this Agreement and the breach cannot, in the Company's reasonable opinion, be cured;

it is exercising an express right to terminate accrued elsewhere under this Agreement;

the Agency is subject to an Insolvency Event.

Without limiting any other right of termination at law or otherwise, the Agency may terminate this Agreement immediately by giving written notice if:

the Company breaches a provision of this Agreement and does not cure that breach within 30 days of the date on which the Agency provided the Company with a written notice identifying the breach and requesting that it

be cured;

the Company breaches a provision of this Agreement and the breach cannot, in the Agency's reasonable opinion, be cured;

it is exercising an express right to terminate accrued elsewhere under this Agreement; or

the Company is subject to an Insolvency Event.

Termination, completion or expiry of this Agreement for any reason does not extinguish or otherwise affect:

any rights of either party against the other which accrued prior to termination or out of the events causing such termination including damages or other remedies to which a party may be entitled; or

the provisions of this Agreement which by their nature survive termination.

If the Agreement is terminated by the Company:

the Agency's sole right and remedy is to receive payment of any Fee due to the Agency for Services performed or expenses incurred (including any Disbursements or Third Party Expenses) up to the date of termination; and

Without limiting any other provision of this Agreement, if this Agreement is terminated for any reason, the Agency must:

deliver to the Company all of the Company's Confidential Information, and all data and other materials, property, equipment or items which are the property of the Company;

to the extent possible, assign those third party contracts to the company that the Company notifies the Agency that it wishes to be assigned; and

provide to the Company details of all work in progress including the supplier involved, any payments outstanding in connection with those works and the estimated costs for the completion of all works.

Insurance

The Agency must, at its cost, effect and maintain the following appropriate insurances:

public and products liability insurance appropriate to the Agency's activities,
workers' compensation insurance in accordance with applicable awards or legislation and insurance against common law liability to any person employed by the Agency in connection with the Services and this Agreement; and professional indemnity insurance.

Dispute resolution procedures

It is the Agency’s goal that the Services meet your expectations. However, there may be instances when you feel that the Agency may not be fulfilling its obligations. In those instances, the Agency is committed to working with you to reach a reasonable resolution that satisfies you. Therefore, for any problem or dispute that you may have with the Agency, you acknowledge and agree that you will first give the Agency an opportunity to resolve your problem or dispute.

Subject to clause 19(d), the parties must at first instance attempt to settle by negotiation any dispute arising in relation to this Agreement in accordance with this clause 19.

If a party considers that a dispute has arisen, that party must promptly send a notice to the other party (Dispute Notice) setting out a full description of the matters in dispute.

Any dispute which is not resolved within 5 Business Days of the Dispute Notice must be referred to a senior manager of each party with authority to resolve the dispute.

If the dispute is not resolved by the parties referred to in clause 19(c) within 14 days of being referred to them, or within such period as the parties may otherwise agree, either party may commence or initiate legal proceedings.

A party may commence court proceedings relating to any dispute at any time if that party seeks urgent interlocutory relief.

Notices

A notice, consent or other communication under this Agreement is only effective if it is:

in writing and in legible English, signed by or on behalf of the party giving it;

addressed to the party to whom it is to be given; and

either:

sent by post mail or delivered to that party's address; or

sent by email, to that party's email address.

Subject to clause 20(c) a notice, consent or other communication under this Agreement is, in the absence of earlier receipt, regarded as given and received:

if it is delivered, on delivery at the address of the relevant party;

if it is sent by email at the time and on the day it was successfully sent; or

if it is sent by mail, on the third Business Day after the day of posting, or if to or from a place outside Australia, on the seventh Business Day after the day of posting.

If a notice, consent or other communication under this Agreement is given and received on a day that is not a Business Day or after 5.00 pm (local time in the place of receipt) on a Business Day, it is regarded as being given and received at 9.00 am on the next Business Day.

Appointed Agency

In the event the Company requests to purchase advertising on behalf of its own client, the Company represents and warrants that the Company has been authorised by such client to act as its “Appointed Agency" in all respects relating to the Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, the Company agrees on behalf of such client that such client has been made aware of and agrees to be bound by the Agreement. The Company and each such client shall be jointly and severally liable for the fulfilment of obligations under this Agreement, including all payment obligations.

An “Appointed Agency” for the purpose of this Agreement is an agency that has been appointed by its client to provide marketing services including, but not limited to, marketing spend buying and strategy.

(a)The Appointed Agency has obtained written client’s consent and is required to provide it to the Agency before the Campaign’s Commencement Date;

(b)acts as the client’s media agency and has the authority to approve the Order Form;

(c)accepts all liability for payment of all advertising booked related to the Order Form and this Agreement.

If acting as an Appointed Agency, the Company must advise the Agency immediately in writing of any change to its status or circumstances, including but not limited to any change to the ownership or control, directors or senior management, revenue or asset backing, or the existence of actual or threatened litigation or other events which may compromise its ability to pay any amounts or otherwise meet its obligations under this Agreement.

General

Entire agreement

This Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations, and warranties about that subject matter.

Variation

The Agency may vary this Agreement at any time in its sole discretion, provided that:

such amended terms will not affect prior agreed Order Forms; and
if the Company does not agree with a variation the Company may prospectively cease its advertising under the termination clause 17 (a).
Relationship of the parties

Except as expressly provided in this Agreement:

nothing in this Agreement is intended to constitute a fiduciary relationship or an agency, partnership, or trust; and

no party has the authority to bind any other party.

Further assurances

Except as expressly provided in this Agreement, each party must, at its own expense, do all things reasonably necessary to give full effect to this Agreement and the matters contemplated by it.

Consents and approvals

Except as expressly provided in this Agreement, a party may conditionally or unconditionally in its absolute discretion give or withhold any consent or approval under this Agreement.

Publicity

The Agency must not make press or other announcements or releases relating to the Company, this Agreement, or the Services without the Company's prior written approval, unless the announcement or release is required by law.

Severability

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

Waiver

No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.

A single or partial exercise of a right or remedy under this Agreement does

not prevent a further exercise of that or any other right or remedy. Failure to exercise or delay in exercising a right or remedy under this Agreement does not operate as a waiver or prevent further exercise of that or any other right or remedy.

Cumulative rights

Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law.

Governing law and jurisdiction

This Agreement is governed by the laws of New South Wales.

Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and legitimate courts of appeal from such courts.

General Terms & Conditions

​