General Terms and Conditions
1. Definition and Interpretation
In this agreement, unless the contrary intention appears, the following words have the following meanings:
has the meaning given to that term in clause 3.2(a).
Amazon Web Services.
the board of directors of Bulletproof, including its authorised representatives (as required), from time to time.
all Intellectual Property of Bulletproof including, for the avoidance of doubt, all Intellectual Property in relation to the Provision of the Services.
a day which is not a Saturday, Sunday, public or bank holiday in Sydney, New South Wales.
between the hours of 9:00am to 5.00pm on a Business Day.
includes any allegation, action, demand, cause of action, suit or proceeding, howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at Law, in equity, under statute or otherwise.
(a) the physical site providing, within the requirements of the Hosting Environment (as specified by Bulletproof), physical access and security, electrical power, air-conditioning and fire prevention and retardation for the provision of the Services; and
(b) rack space sufficient to house the Hosting Environment.
as specified in Part 3 of Schedule 2
(a) the terms of this agreement; and
(b) all information (whether in written, electronic or other form) concerning or in any way connected with Bulletproof or the Customer, and their respective businesses, services, products (including without limitation the Services), customers, property or affairs and which is disclosed to either Bulletproof or the Customer (or their respective Related Bodies Corporate) by the other party, or by any person on behalf of such party, or which otherwise comes to the knowledge of Bulletproof or the Customer (as applicable),
but does not include information which is generally publicly available (other than as a result of a breach of this agreement).
Corporations Act 2001 (Cth).
all data and material that is provided by the Customer and:
(a) uploaded to the Hosting Environment; or
(b) otherwise used in respect of the receipt of the Services by the Customer.
all Intellectual Property of the Customer including, for the avoidance of doubt, the Customer Data.
Customer Support Services
the Customer support services set out in Part 1 of Schedule 3.
those amounts set out in Part 1 of Schedule 2.
Force Majeure Event
(a) in respect of obligations other than any obligation to pay money, any act of God, act of public enemy, war, blockade, revolution, riot, insurrection, civil commotion, Denial of Service (DOS) or Distributed Denial of Service (DDOS) attack, third party provider outages, cable cuts, lightning, storm, flood, fire, earthquake, explosion, industrial strike, disputes, actions or other matters, frustration or hindrance by a Governmental Agency or embargo, in each case to the extent beyond the reasonable control of a party, and any other event beyond the reasonable control of a party; and
(b) in respect of obligations to pay money, a general, specific or local failure of systems or networks involved in the transmission of money in a banking system, to the extent beyond the reasonable control of a party.
a government or governmental, semi-governmental or judicial entity or authority.
any tax, levy, charge or impost generally imposed pursuant to the New Tax System (Goods and Services Tax) Act 1999, or any other Act of Parliament of the Commonwealth of Australia, which the parties are obliged to pay in respect of the supply of the Services under this agreement.
the platform that Bulletproof will use to provide the Hosting Services (if any), including hardware (servers, routers, firewalls, switches and storage), operating systems, middleware, database software, networking and procedures that are in Bulletproof’s exclusive control.
the hosting services (if any) provided as part of the Services (Schedule 1)
has the meaning given to that term in clause 8.1(a).
has the meaning given to that term in clause 3.1.
in relation to a party:
(a) a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed over any of the assets or undertakings of the party;
(b) a party suspends payment of its debts generally;
(c) a party is unable to pay its debts as and when they fall due or is presumed to be insolvent within the meaning of the Corporations Act;
(d) a party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors, or any class of them;
(e) a party ceases to carry on business or threatens to cease to carry on business;
(f) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; or
(g) an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, otherwise than for the purpose of an amalgamation or restructuring that has the prior written consent of the other party.
all other intellectual property rights conferred by Law (whether registered or unregistered) including:
(a) business names;
(b) trade or service marks;
(c) patents, patent applications, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, data bases, know how, production methodologies, logos, designs, design rights, copyright or similar industrial or intellectual property rights;
(d) Moral Rights;
(e) all proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967); and
any improvements, developments, modifications or inventions in relation to such Intellectual Property.
any law, regulation, authorisation, ruling, judgment, order or decree of any government agency and any statute, regulation, proclamation, ordinance or by-law.
includes any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at Law, in equity, under statute or otherwise.
(a) the right of integrity of authorship;
(b) the right of attribution of authorship of a work;
(c) the right not to have authorship of a work falsely attributed; and
(d) any other similar right capable of protection under the Laws of any relevant jurisdiction.
any professional or consulting services provided by Bulletproof to the Customer from time to time that do not form part of the Services.
Related Body Corporate
has the meaning given to that term in the Corporations Act.
the services described in Schedule 1.
Statement of Work
a statement of work agreement that has been agreed and executed by the parties for the provision of Services and which is subject to the terms of this agreement.
the Initial Term and any Additional Terms.
Terms of Service
Bulletproof’s terms of service located at http://www.bulletproof.net.au/Legals/, as it may be amended and updated from time to time.
1.2 Definitions Interpretation
In this agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(d) a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure;
(e) a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(f) a reference to A$, $A, dollar or $ is to Australian currency;
(g) a reference to time is to New South Wales time unless otherwise specified;
(h) a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(i) a reference to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;
(k) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
(l) headings are for ease of reference only and do not affect interpretation.
2. Supply of Services
The Customer agrees to accept and pay for and Bulletproof agree to provide the Services during the Term, subject to the terms and conditions set out in this agreement.
3. Term of Agreement
3.1 Initial Term
This agreement commences on the Commencement Date as specified in Part 3 of Schedule 2 and continues in effect for the period specified in Part 4 of Schedule 2 (Initial Term), unless terminated earlier in accordance with its terms.
3.2 Additional Terms
(a) This agreement will be automatically renewed beyond the Initial Term for subsequent terms of the lesser of:
(i) 90 days; or
(ii) the period specified in Part 4 of Schedule 2 (if any),
(each an Additional Term) unless the Customer notifies Bulletproof prior to the end of the Initial Term or the current Additional Term (as applicable) that it wishes to terminate the agreement at the end of such Term.
(b) For the avoidance of doubt:
(i) there may be unlimited Additional Terms; and
(ii) the Fees will continue to be payable in respect of any Additional Term unless otherwise agreed by the parties.
4. Fees and Payment
4.1 Customer to Pay Fees
In consideration for the provision of the Services by Bulletproof, the Customer must pay the Fees to Bulletproof.
Unless otherwise specified in Schedule 2, Bulletproof will invoice the Customer as follows:
(a) if the Fees are for ongoing Services, invoiced monthly in advance;
(b) if the Fees are calculated on a time and materials basis, invoiced monthly in arrears; and
(c) if the Fees are calculated in accordance with a fixed price agreed between the parties, then in accordance with the agreed payment schedule.
The parties acknowledge and agree that:
(a) Bulletproof will provide a tax invoice for each required payment before payment of the relevant Fee amount is required. Each tax invoice will be accompanied by supporting information and details of the Fees;
(b) all Fees are exclusive of GST unless otherwise stated; and
(c) subject to the provisions of Schedule 2, the due date for payment of any Fees is 14 days after the date of the relevant tax invoice.
4.4 Invoice Dispute Procedure
(a) If the Customer disagrees with a tax invoice provided by Bulletproof pursuant to this agreement (Invoice Dispute):
(i) the Customer must notify Bulletproof in writing no later than 10 Business Days following receipt of the invoice, setting out in reasonable detail the nature of the Invoice Dispute and the reasons for non-payment;
(ii) Bulletproof will acknowledge receipt of such Invoice Dispute notice and both parties’ responsible managers, or if necessary both parties’ chief executives, will endeavour to promptly settle the Invoice Dispute by agreement in accordance with clause 15; and
(iii) if, on resolution of the Invoice Dispute, an amount is due to Bulletproof, the Customer will pay that amount to Bulletproof within five Business Days of resolution of the dispute.
(b) Where only a portion of an amount claimed in a tax invoice is the subject of an Invoice Dispute (Disputed Portion), this clause 4.4will only apply to the Disputed Portion and the balance of the amount payable in respect of that tax invoice must be paid by the Customer to Bulletproof no later than the due date of the invoice.
(c) If an Invoice Dispute cannot be settled by agreement in accordance with clauses 15.1and 15.2, the Disputed Portion will be paid immediately into an escrow account administered by the Customer’s solicitor, pending resolution of the Invoice Dispute by way of mediation pursuant to clause 15.3. The Customer must provide written confirmation of such payment to Bulletproof.
4.5 Unpaid Monies
If the Customer fails to pay any monies due to Bulletproof under this agreement on or before their due date:
(a) Bulletproof may charge, and the Customer must pay interest on the outstanding sum at the then current General interest charge (GIC) rate as prescribed by the Australian Taxation Office, calculated daily from the due date until the date of payment; and
(b) Bulletproof reserves the right to suspend any or all of the Services.
(c) Where discounts have been offered to the Customer as part of a prepayment of the service, those discounts will be removed and the discounted fees invoiced separately.
Any credits or other adjustments to the Fees which have been expressly agreed by the parties will be detailed and offset in the next tax invoice due from Bulletproof to the Customer however no earlier than one month after the adjustment amounts are determined.
4.7 Professional Services
Subject to the terms of any express agreement between the parties, the terms of this agreement, including Part 2 of Schedule 2, will otherwise apply to the provision of any Professional Services.
(a) The Customer must pay and indemnifies Bulletproof against all taxes and duties paid or payable (including, for the avoidance of doubt, any additional taxes and duties, and any amounts paid or payable pursuant to the Clean Energy Act 2012 (Cth)) in respect of this agreement, any supply made under this agreement and the Fees (excluding any income tax payable by Bulletproof).
(b) If GST is imposed on any supply made by Bulletproof pursuant to this agreement, subject to Bulletproof providing a valid tax invoice the Customer must pay, in addition to any fees for such supply (unless those fees already include GST), an additional amount equivalent to the GST payable.
5. Customer’s Obligations
5.1 Limitation of Services
The Customer acknowledges the:
(a) Customer Support Services (as set out in Part 1 of Schedule 3);
(b) Service Specifications set out in Part 2 of Schedule 3; and
(c) Responsibility Matrix set out in Schedule 4,
and agrees and acknowledges that the Services (including any related support and maintenance) are provided subject to the provisions of Schedules 3 and 4.
5.2 Control of Content
(a) The Customer acknowledges that Bulletproof does not:
(i) actively monitor any customer or subscriber activity under normal circumstances; or
(ii) exercise editorial control over the content of any website, email transmission, newsgroups, or other material created or accessible over or through the Services, except for certain proprietary websites.
(b) Notwithstanding clause 5.2(a), in accordance with its Terms of Service, Bulletproof may remove any materials which in its sole discretion it determines may be illegal, may subject it to liability, or which may violate its Terms of Service.
(c) Bulletproof may co-operate with third parties in the investigation of any suspected or alleged crime or civil wrongdoing in relation to any Customer or the Services and will in any event comply with any Lawful directions of a Governmental Agency.
5.3 Compliance with Directions
The Customer agrees to comply with all reasonable directions issued by Bulletproof in relation to the Services.
(a) The Customer must not use the Services, or let them be used:
(i) In a manner that is likely to bring Bulletproof into disrepute;
(ii) in a manner which may be prejudicial to Bulletproof or its goodwill, reputation or business;
(iii) to commit any offence or breach any applicable Laws;
(iv) in a manner that is excessive or unusual or creates an unfair burden on the provision of the Services, or similar services, to others (as judged in Bulletproof’s absolute discretion);
(v) in a way that interferes (or threatens to interfere) with the efficiency and security of the Services or another person’s services;
(vi) to accept, transmit or distribute unsolicited bulk email;
(vii) to send email that hides or obscures the source of the email;
(viii) to distribute trojan horses, worms, malicious or destructive code or any instructions activating such code;
(ix) to menace, harass or stalk any person;
(x) to distribute material that is defamatory, obscene or could cause offence or harm;
(xi) in a manner that infringes any other person’s Intellectual Property rights, confidential information or other rights; or
(xii) to enable a minor to access material inappropriate for a minor or to establish (or try to establish) contact with a minor not otherwise known to the Customer.
(b) Any breach of the provisions of clause 5.4(a)will entitle Bulletproof to suspend or terminate the Services with immediate effect in accordance with clause 13.2.
5.5 Security of Information and Access
(a) The Customer must keep all identification and log-in information that is used as part of the Hosting Services secret and secure. The Customer agrees not to disclose to any other person any identification or log-in information, whether in use or not, nor any other confidential information relating to Bulletproof which the Customer obtains through the use of the Hosting Services. All such information will be regarded as Confidential Information in accordance with clause 11.
(b) The Customer must ensure that remote access by Bulletproof engineers to its managed systems, as may be required from time to time, is not prevented by the Customer.
(a) Bulletproof must use reasonable endeavours to:
(i) provide the Customer Support Services in accordance with the Response and Resolution Times set out in Schedule 5; and
(ii) ensure the Customer Support Services are provided in a professional manner.
(b) If the Customer requests training or support beyond the Customer Support Services, the specific terms of such training and support must be agreed by the parties prior to it taking place and the Customer will be required to bear all associated reasonable costs of Bulletproof for the provision of such training and support.
7.1 Mutual warranties
Each party represents and warrants to the other that each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:
(a) it has and will at all times during the Term have the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement;
(b) all information provided to the other party in relation to the subject matter of this agreement is true and correct;
(c) there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement; and
(d) it holds any and all necessary licences required under, and has otherwise complied in all material respects with the requirements of, all Laws applicable to the arrangements contemplated by this agreement and any third party licences or authorities granted to it to enable it to enter into and perform its obligations under this agreement.
7.2 Inaccurate warranties
If a warranty given by a party to this agreement ceases to be accurate, that party must immediately advise the other party in writing.
(a) Subject to clause 8.3(d), each party (Indemnifying Party) agrees to indemnify and will keep indemnified the other party and its directors, officers, employees and agents (together, Indemnified Persons) against any Losses incurred or suffered by an Indemnified Person, or Claims brought against an Indemnified Person, arising directly or indirectly from:
(i) a breach of this agreement by the Indemnifying Party;
(ii) the Indemnifying Party breaching any of the warranties set out in clause 7.1; and
(iii) the Indemnifying Party’s own negligence, fraud or wilful misconduct, or that of its employees, agents or sub-contractors or of any other person for which the party is vicariously liable,
provided that the Indemnifying Party will not be liable under this clause 8.1(a)to the extent that the Losses arise from the negligence, fraud or wilful misconduct of the Indemnified Person.
(b) The parties acknowledge and agree that each party is entering into this agreement and obtaining the benefit of this clause 8.1both on its own behalf and on behalf of each other Indemnified Person (as applicable).
8.2 Claims and breach
Notwithstanding clause 8.1, Bulletproof has no liability in respect of any Claim or any Losses arising out of:
(a) the use of the Services by the Customer otherwise than in accordance with this agreement; or
(b) the Customer’s breach of this agreement.
8.3 Conduct of Claims
In respect of a Claim pursuant to which an Indemnifying Party may be liable under clause 8.1:
(a) the Indemnified Personmust notify the Indemnifying Party of the Claim in writing as soon as is reasonably practicable;
(b) the Indemnifying Party may, at its own cost, conduct the defence of, or settle, the Claim;
(c) the Indemnified Person must not concede, settle or compromise the Claim without the Indemnifying Party’s prior written consent; and
(d) the Indemnified Person must provide all reasonable information and assistance requested by the Indemnifying Party in relation to the defence or settlement of the Claim.
9. Limitation of Liability
9.1 Exclusion of warranties
Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by Law, Bulletproof expressly excludes all warranties, conditions and representations in whatever form, whether express or implied, relating to the Services, including any warranties or representations relating to performance, quality, merchantability, fitness for use and/or security and operation of the Services. Bulletproof makes no representation that the Services will be uninterrupted or free from defects and errors.
9.2 Bulletproof’s limitation of liability
Notwithstanding any other provision of this agreement, Bulletproof’s maximum liability under or in relation to this agreement for all cumulative Loss incurred by the Customer and its Indemnified Persons is limited, to the fullest extent permitted by Law, to the greater of:
(a) the amount that is twice the Fees payable to Bulletproof during the current length of the Term (as set out in Schedule 2), whether or not yet invoiced by Bulletproof; and
(b) where Bulletproof is indemnified for such liability under the professional indemnity insurance policy required to be taken out and maintained by Bulletproof in accordance with clause 10, then the amount Bulletproof actually receives indemnification for under that policy.
9.3 No consequential loss
Notwithstanding any other provision of this agreement and to the fullest extent permitted by Law, Bulletproof is not liable:
(a) for any consequential, indirect or special Losses of any kind (including, without limitation, loss of profit, loss or corruption of data, business interruption or indirect costs) suffered by the Customer or any third party; and
(b) in connection with any Customer or third party provided content or software that the Customer may upload, transmit, place, add or otherwise use in relation to the Services.
9.4 Other limitations
Notwithstanding any other clause in this agreement, a party’s liability will be reduced to the extent that:
(a) the relevant Loss is caused or contributed to by the other party;
(b) the Loss giving rise to the Claim is recovered by the other party under another Claim or is made good or otherwise compensated for without cost to the other party;
(c) the circumstances giving rise to the Claim are remedied to the reasonable satisfaction of the other party within five Business Days after receiving notice of the Claim;
(d) the other party does not use its reasonable efforts to mitigate any Loss; and
(e) the Claim arises from a change in any legislation or regulation, or any judicial or administrative interpretation of the Law.
(a) Bulletproof must at all times during the Term take out and maintain with a reputable insurer such insurances as are reasonable and appropriate for an organisation such as Bulletproof, including without limitation a professional indemnity insurance policy covering liability in respect of any Professional Services undertaken by Bulletproof, for a sum of not less than five million dollars.
(b) Bulletproof must upon request by the Customer provide evidence of the currency of the insurance policy referred to in clause 10(a)above.
11. Confidential Information
Each party (Recipient) acknowledges that the other party (Disclosing Party) may disclose to it Confidential Information during the Term. All such information will remain the exclusive property of the Disclosing Party.
11.2 Confidential Information
(a) Subject to clause 11.2(b), a Recipient must keep confidential any Confidential Information disclosed to it by the Disclosing Party.
(b) A Recipient may disclose Confidential Information disclosed to it by the Disclosing Party:
(i) to its officers or employees or financial, legal or other advisers who have a need to know for the purposes of this agreement and who undertake to the Disclosing Party a corresponding obligation of confidentiality to that undertaken by a Recipient under this clause 11;
(ii) only as is absolutely necessary in order to fulfil its obligations pursuant to this agreement; or
(iii) if required by Law, provided that the Recipient must:
(A) to the extent possible, notify the Disclosing Party in writing immediately when it anticipates that it may be required to disclose any Confidential Information disclosed to it by the Disclosing Party; and
(B) if disclosure cannot be avoided:
(I) only disclose Confidential Information to the extent reasonably required by Law; and
(II) follow any reasonable directions of the Disclosing Party concerning the disclosure.
11.3 Avoiding disclosure
A Recipient will take all necessary precautions to prevent the disclosure to third parties of any Confidential Information disclosed to it by the Disclosing Party.
11.4 Return of Confidential Information
(a) Subject to any other obligations of the parties under this agreement:
(i) any Confidential Information received by a Recipient must be returned on demand by the Disclosing Party (Return Request); and
(ii) each party must immediately comply with any Return Request and must certify in writing to the Disclosing Party that it has fully complied with the request.
(b) The obligations under this clause 11extend to all copies, summaries, notes or reproductions of Confidential Information which are a Recipient’s possession or control or in the possession or control of any person to whom disclosure has been made in accordance with the terms of this agreement.
12. Intellectual Property Rights
12.1 Customer Data
(a) Except as may otherwise be specified in this agreement, all Intellectual Property rights in the Customer Data are and will remain the property of the Customer.
(b) The Customer grants Bulletproof a royalty-free, non-exclusive, revocable licence to use the Customer Data to the extent necessary to perform its obligations under this agreement.
12.2 Intellectual Property Rights
Except as may be expressly provided otherwise in Schedule 1, or in any head licensor’s terms (as notified by Bulletproof to the Customer):
(a) all Bulletproof IP is and remains the property of Bulletproof or its licensor (as applicable), and the Customer obtains no rights or interests in the Bulletproof IP or any component thereof; and
(b) all Customer IP is and remains the property of the Customer or its licensor (as applicable), and Bulletproof obtains no rights or interests in the Customer IP or any component thereof.
Subject to the terms of any Statement of Work:
(a) any developments or improvements made by Bulletproof to the Customer IP, or any developments or improvements made by the Customer, immediately become the property of the Customer and Bulletproof acknowledges and agrees that it does not acquire any rights or entitlements of any kind in respect of such developments and improvements during or after the Term; and
(b) any developments or improvements made by the Customer to the Bulletproof IP immediately become the property of Bulletproof and the Customer acknowledges and agrees that it does not acquire any rights or entitlements of any kind in respect of such developments and improvements during or after the Term.
13.1 Termination for convenience
(a) During the Term, either party may terminate this agreement for convenience with 90 days’ prior written notice.
13.2 Termination for breach
Either party may terminate this agreement with immediate effect upon notice if the other party:
(a) commits any serious or persistent breach of any of the provisions of this agreement and:
(i) where the breach is capable of remedy, does not remedy the breach within 21 days of receipt of written notice to remedy the breach; or
(ii) where the breach is not capable of remedy, has previously committed a breach of similar nature and has received written warning that this agreement will be terminated on a repetition of the such breach;
(b) does not pay any amount due under the terms of this agreement within 30 days of the date such payment was due; or
(c) is, becomes, or is in jeopardy of becoming subject to any form of insolvency administration (including receivership, administration or liquidation).
13.3 Rights on termination
Upon the termination of this agreement for any reason:
(a) the Customer must cease using the Services;
(b) except for any Claims arising before termination or as may be specified otherwise in this agreement, neither party will have any Claim against the other for indemnification or compensation as a result of the termination (unless the termination was in breach of this agreement);
(c) subject to clause 18.5, all other obligations of the parties under this agreement will immediately cease to be of further force and effect without further liability of any party to the other provided that nothing in this clause 13.3will release any party from liability arising from any pre-termination breach of any provisions of this agreement;
(d) unless otherwise specified in Schedule 2 or where the agreement is terminated pursuant to a breach of clause 13.2by Bulletproof, the Customer must pay to Bulletproof in full, on the date of termination, all Fees outstanding and all Fees that would have otherwise been payable to Bulletproof for the full length of the Term specified in Schedule 2;
(e) the Customer must return to Bulletproof or destroy (at Bulletproof’s discretion) all Confidential Information in accordance with clause 11; and
(f) Bulletproof will use reasonable endeavours to effect the assignment of any rental agreements that it maintains in order to provide the Services to the Customer or the Customer’s nominee provided that:
(i) Bulletproof’s financier approves any such assignment; and
(ii) the Customer bears all costs incurred in obtaining such consent and carrying out the assignment.
A notice, demand, consent, approval or communication under this agreement (Notice) must be:
(a) in writing, in English; and
(b) hand delivered or sent by post or email to the recipient’s address for Notices specified in the Parties section of this agreement, as varied by any Notice given by the recipient to the sender;
A Notice given in accordance with clause 14.1takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
(c) if sent by email, when sent, provided that the sender does not receive any notice that the email was not sent successfully,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
15. Dispute Resolution
15.1 Good Faith
The parties undertake to use all reasonable efforts to resolve in good faith any disputes which arise between them in connection with this agreement (Disputes).
15.2 Internal Dispute Resolution
(a) Any Dispute will, in the first instance, be referred to the party managers responsible under the relevant Statement of Work and, failing resolution within 10 Business Days, to the parties’ respective chief executives or their delegates.
(b) Each party’s chief executive or delegate will endeavour to resolve the Dispute within 10 Business Days of the Dispute first being referred to them.
(a) Failing resolution of the Dispute under clause 15.2, a party to the Dispute may submit it to mediation in Sydney in accordance with the ACDC Guidelines for Commercial Mediation (except that no further period of negotiation is necessary before commencing mediation).
(b) The parties must agree on the appointment of the mediator.
(c) If the parties do not agree on the mediator to be appointed within 10 Business Days of a party referring the Dispute to mediation, then the mediator will be appointed in accordance with the ACDC Guidelines for Commercial Mediation.
(d) The mediation process above will terminate within two months of the appointment of the mediator.
15.4 Judicial Proceedings
No formal proceedings for the judicial resolution of any Dispute between the parties may be commenced until the Dispute has gone through the internal Dispute resolution process under clauses 15.2and 15.3.
15.5 Continued Performance
Pending resolution of any Dispute under clauses under clauses 15.2and 15.3, without prejudice to their respective rights and remedies under this agreement or at Law, the parties will continue to perform their respective obligations under this agreement that are not in dispute.
16. Relief from obligations
16.1 Force Majeure
(a) If a party is unable, wholly or in part, by reason of a Force Majeure Event, to perform an obligation under this agreement, the affected party will not be liable to the other party for a failure to perform that obligation and that obligation will be suspended to the extent and for the duration of the Force Majeure Event provided that the affected party gives the other party prompt notice with sufficient details of the relevant Force Majeure Event, including, to the extent known:
(i) details of the obligation the affected party cannot perform;
(ii) a full description of the Force Majeure Event;
(iii) an estimate of the time during which the effects of the Force Majeure Event will continue; and
(iv) any measures proposed to be adopted to remedy or abate the Force Majeure Event.
(b) If a Force Majeure Event prevents a party from substantially performing its material obligations under this agreement for longer than 60 days, then the other party may at the expiry of that period, provided the effects of the event of Force Majeure are still subsisting, give notice in writing to the affected party immediately terminating this agreement.
Despite clauses 16.1, the party affected by the Force Majeure Event must:
(a) use reasonable endeavours to mitigate the effect of the Force Majeure Event upon its performance of this agreement and to fulfil its obligations under this agreement (but without prejudice to any party’s right to terminate this agreement);
(b) keep the other party informed of the steps being taken to mitigate the effect upon that party’s performance of this agreement; and
(c) when the period for which its obligations are affected by the Force Majeure Event ceases, recommence performance of all its affected obligations under this agreement the subject of its original notice under clause 16.1.
Clause 16.1 does not apply to the extent that any Force Majeure Event is caused or contributed to by a breach of this agreement by the party claiming to be affected by the Force Majeure Event.
The parties acknowledge and agree that:
(a) nothing in this agreement constitutes a relationship of employer and employee, principal and agent, franchisor and franchisee, joint venturers or partnership between the parties; and
(b) neither party will have any authority to bind the other party or to accept any order binding on the other party or to enter into an agreement in the name of the other party.
18.1 Entire agreement
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
18.2 No merger
The provisions of this agreement will not merge on completion of any transaction contemplated in this agreement and, to the extent any provision has not been fulfilled, will remain in force.
This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of each other party, which must not be unreasonably withheld.
Any indemnity or obligation of confidence under this agreement is independent and survives termination of this agreement together with any other provision of this agreement that by its nature is intended to survive termination.
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
Waiver of any power or right under this agreement:
(a) must be in writing signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in that written waiver.
18.8 Rights, remedies additional
Any rights and remedies that a person may have under this agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
18.9 Further assurances
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
18.11 Governing Law and jurisdiction
This agreement is governed by and must be construed in accordance with the Laws of the State of New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts of that State and the Commonwealth of Australia in respect of all matters or things arising out of this agreement.