These terms and conditions are between

The Client

and

N.I Lee & S Tokic t/as Mind Methods (ABN 31 926 173 016) of Suite 6, 12 Rickard Rd, North Narrabeen NSW 2101 (Supplier).

BACKGROUND

A. The Supplier has the skills, background, and experience in providing the Services.

B. The Client wishes to engage the Supplier to provide the Services to the Client.

C. The Supplier is willing to provide the Services and the Client is willing to appoint the Supplier to provide the Services, all in accordance with the provisions of these terms and conditions.

OPERATIVE PROVISIONS

1. Definitions and interpretation

1.1 Definitions

In these terms and conditions unless the context indicates otherwise, the following words have the following meanings:

Background IP means Intellectual Property of the Supplier which was in existence prior to the commencement of these terms and conditions, or which is subsequently developed by the Supplier independently of and for purposes unconnected with these terms and conditions.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks are open for business in New South Wales, Australia.

Claims means all demands, claims, proceedings, penalties, fines, and liability (whether criminal or civil, in contract, tort or otherwise).

Client means the client named in the Quotation.

Commencement Date means the date the Quotation is signed by the Client.

Confidential Information includes any information marked as confidential and any information received or developed by the Supplier during the term of these terms and conditions, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data, and marketing information such as customer lists, financial information, and business plans.

Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into these terms and conditions pursuant to division 1 part 3-2 of the Australian Consumer Law.

Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations under these terms and conditions.
Deliverables means the goods or services to be supplied by the Supplier pursuant to these terms and conditions.

Facilities means working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by the Supplier in order to perform the Services.

Fees means the amounts payable in the Quotation or relevant Order (if applicable).

Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under these terms and conditions and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, pandemic (including COVID 19 or any derivation of it), epidemic, industrial action, and action or inaction by a government agency.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Indirect or Consequential Loss includes any type of incidental or consequential loss, including but not limited to, loss of profit, loss of revenue, loss of production, loss of use any customer(s), damage to equipment, loss of opportunity, loss of opportunity to make profit, loss of goodwill, delay, and/or wasted overheads.

Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.

Key Person means an individual from either party that is in the reasonable opinion of both Parties critical to ensuring the performance of the Services and/or these terms and conditions.

Losses or Loss means all losses including financial losses, damages, legal costs, liability, expense or cost whatsoever and including (without limitation) loss of profits or business opportunity, and damage to equipment or property.

Order means any additional order placed by the Client through counter-signing the Supplier's quotation form.

Parties means the Supplier and the Client, and Party means either one of them.

Performance Partnership means an arrangement whereby the Supplier agrees to provide the Services (or any part of those Services as the case may be) in consideration for a monthly retainer from the Client, the terms of which are set out in the Quotation.

Personal Information has the meaning as defined in any applicable Privacy Law.

Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage, and transmission of Personal Information which is applicable to a Party in the performance of its obligations under these terms and conditions, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.

Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth) (Corporations Act).

Services means the services to be provided by the Supplier under these terms and conditions or otherwise as specified in the Quotation or any subsequent Orders.

Quotation means quotation annexed hereto these terms and conditions.

Supplier’s Personnel means any person or persons that the Supplier designates to perform the Services on the Supplier’s behalf.

Termination Date means the earlier of:

(a) the date of termination of these terms and conditions by the Client or the Supplier; and
(b) the date of expiry of these terms and conditions.

Text Copy and Content Images means content written and images developed for the promotion and marketing of the Client's goods and/or services.

Text Copy Services means content authoring for any marketing or advertising channel.

1.2 Interpretations

In these terms and conditions unless the context otherwise requires:

(a) words importing any gender include every gender;

(b) words importing the singular number include the plural number and vice versa;

(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to these terms and conditions;

(e) reference in any schedule to these terms and conditions to numbered paragraphs relate to the numbered paragraphs of that schedule;

(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

(g) the headings to the clauses and schedules of these terms and conditions are not to affect the interpretation;

(h) all monetary amounts referred to in these terms and conditions are in AUD (Australian Dollars) unless otherwise stated.

(i) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bye-law made under that enactment; and

(j) the word “including” (and related forms including “includes”) means “including without limitation”.

2. Provision of Services

(a) These terms and conditions will commence on the Commencement Date, or if no Commencement Date is provided, then of the date that the Supplier commences providing the Services to the Client and can only be terminated in accordance with clause 12 of these terms and conditions.

(b) The Supplier will provide the Services to the Client in consideration for the Client paying the Fee to the Supplier, subject to the provisions of these terms and conditions.

(d) The Services will be performed by the employees or agents that the Supplier may choose as most appropriate to carry out the Services.

(e) The Services to be performed as agreed by the Parties are set out in the Quotation.

(f) The Parties may, by mutual agreement in writing, agree to expand the Services after the commencement of these terms and conditions, however the Supplier in such instances will be entitled to vary the Fees acting reasonably.

(g) The Client may notify the Supplier of any intention to modify, reject, cancel or stop the Services or any part of the Services, however the Client will remain liable for, and indemnifies the Supplier from, all costs and expenses incurred by the Supplier up to the date of receiving those instructions, including any non-cancellable commitments which the Supplier has made in the performance of those Services to be altered.

(h) The Services, and these terms and conditions, are exclusive of all Text Copy Services, unless it is otherwise mutually agreed between the parties in writing. If the Client requests the Supplier to engage in any Text Copy Services after the commencement of these terms and conditions, the Supplier will provide the Client with a separate quotation for those Text Copy Services, or if no quotation is given, such works are to be conducted at the Supplier's hourly rate set out in clause 4.1(b) of these terms and conditions.

(i) Notwithstanding any other provision of these terms and conditions or the Quotation, the Services do not include technical support for website hosting, email, or other hosting related services (Technical Support). If the Client requires Technical Support may request the Supplier to provide the details of a hosting supplier able to provide Technical Support suitable to the Client's need. The Client acknowledges and agrees that the Supplier gives no warranty in connection with any provider of Technical Support and that the Supplier is not liable in connection with any Technical Support provider engaged by the Client, even where the details of such provider have been provided to the Client by the Supplier.

(j) The Services, unless otherwise stated by the Supplier, are not inclusive of any consultations requested by the Client. The Supplier will disclose the additional cost of any consultation that is requested by the Client in advance, however if such disclosure does not occur than the consultation may be charged at the Supplier's hourly rate disclosed in clause 4.1(b).

3. Delivery of Services, Retention of Title, and Risk

3.1 Delivery of Services

(a) The failure, or delay, of the Supplier to deliver the Services will not entitle either party to treat these terms and conditions as repudiated.

(b) To the maximum extent permitted by law, the Supplier will not be liable for any Loss, including Indirect or Consequential Loss, suffered by the Client due to failure or delay by the Supplier to deliver the Services (or any part thereof) promptly or at all where failure to deliver is due to clause an event under clause 13.1 of these terms and conditions.

3.2 Retention of Title

(a) The Supplier and the Client agree that ownership of the Services will not pass until:

(i) the Client has paid the Supplier all Fees owing for the particular Services; and
(ii) the Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client.

3.3 Risk

(a) All risk for the Services passes to the Client on delivery.

(b) All third-party software is provided at the Client’s own risk and is not in any way warranted by the Supplier.

(c) The Client accepts that domain names, hosting addresses and email addresses may expire and takes responsibility for the renewal of such names with all relevant service providers. The Supplier takes no responsibility for the loss of such names and the Client indemnifies the Supplier against any Claim arising from the loss of, or failure on the part of the Client to renew, such names.

(d) The Client accepts full responsibility for all costs associated with the recovery of lost domain names, hosting addresses or email addresses and accepts that the Supplier is entitled to charge the Client the current market rate for the recovery of those names if so engaged to do so by the Client.

(e) Where the Services provided to the Client by the Supplier allow for the addition, deletion, or alteration of content in any form once the Client has taken delivery of the Services, the Client takes full responsibility for such changes and indemnifies the Supplier against any action whatsoever arising from such alterations.

(f) In respect to any post-live handover and live project alterations, the Supplier accepts no responsibility for any alterations caused by a third party to the Clients pages once installed, live, and operational. Such alterations include, but are not limited to plug-in’s upgrades, template edits, CSS edits, additions, modifications, or deletions.

4. Fees

4.1 Payment of Fees

(a) In consideration of the provision of the Services in accordance with these terms and conditions, the Client will pay the Supplier the Fees.

(b) Where the Supplier’s charges are based on an hourly rate it shall be at a rate of $185.00 per hour, and any time spent which is less than an hour is to be charged on a pro-rata basis. The Supplier reserves the right to vary its hourly rate upon providing notice in writing to the Client.

(c) The Client acknowledges that the Fees are exclusive of any GST that may be charged by the Supplier to the Client, and therefore, the Supplier will be entitled to add on GST.

(d) Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised and until that occurs the Supplier's ownership or rights in respect of the Services will continue.

4.2 Invoicing

(a) The Supplier will provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4.

(b) Payment must be made by the Client to the Supplier within fifteen (15) days after receiving the Supplier’s invoice.

(d) Notwithstanding any other clause of these terms and conditions, the Supplier may in its sole discretion elect to:

(i) Request payment for non-marketing consultancy and graphic design work prior to delivery of those Services; or
(ii) Request payment for certain Services to be made by instalments in accordance with a payment schedule provided by the Supplier to the Client; or
(iii) Request payment be made based on a Performance Partnership agreed between the parties prior to the commencement of these terms and conditions.

4.3 Variation of Fees

(a) The Fees in the Quotation are provided based on the Supplier's reasonable estimate of the length of time required to achieve the anticipated scope of works as at the commencement of these terms and conditions, plus two (2) rounds of revisions by the Client.

(b) If the Client requests more than two (2) rounds of revisions, the Supplier will charge all additional work at its hourly rate disclosed in clause 4.1(b) of these terms and conditions.

(c) For the purposes of this clause, a 'revision' will occur when the Supplier presents to the Client a draft representation, forecast, or version, of the Services to be performed under these terms and conditions, upon which the Client will have ten (10) Business Days to comment and provide feedback on that presentation. Upon receipt by the Supplier of the Client's consolidated feedback from that presentation, the Supplier will proceed to integrate those changes to the Services, thus ending that round of revisions.

4.4 Costs and disbursements

(a) The Supplier is permitted to charge for all costs and expenses incurred in performing the Services, including but not limited to:

(i) Travel expenses outside of Sydney, Australia;
(ii) Costs for any stimulus materials (such as commercials, story boards, samples, commissioned research, advertising space, media costs, photography, printing, photocopying etc.);
(iii) Out-of-pocket expenses or other expenses agreed between the parties in writing; and
(iv) Any additions to the Services requested by the Client not included in the scope of the Services contemplated in the initial Quotation or any Order.

(b) The Client agrees that the Supplier may charge the Client for the costs in clause 4.4(a) prior to incurring those costs.

4.5 Failure to pay

(a) If the Client does not make a payment within fifteen days of receiving a notice or invoice to do so (unless such other date is stated in an invoice or as otherwise as agreed between the parties or writing or provided for in these terms and conditions) the Supplier is entitled to do any or all of the following:

(i) charge interest on the outstanding amount at the rate of 2.5% per month, accruing monthly;
(ii) require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and/or
(iii) not perform any further Services (or any part of the Services).

(b) The Client indemnifies the Supplier from all Losses or costs (including legal fees) it incurs in pursuing the Client for non-payment of its Fees and/or any interest payable on those Fees.

4.6 Disputed invoices

If the Client disputes the whole or any portion of the amount claimed in an invoice submitted by the Supplier, the Client must:

(a) pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in these terms and conditions; and

(b) notify the Supplier in writing (within five days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.

4.7 Deposit

At the Supplier's sole discretion, the Supplier may require that a deposit of a portion of the Fees be paid by the Client on or before the Commencement Date, to minimise the Supplier's risk in the event of the Client's default or breach of these terms and conditions.

In the event of any breach or default by the Client, the Supplier may, in its sole discretion, elect to retain the deposit or any part thereof as damages for its Loss. For the avoidance of doubt, the Supplier retaining the deposit will in no way be construed as in any way limiting any other rights the Supplier may have under these terms and conditions or at law.

5. Use of subcontractors

(a) The Supplier is permitted to use other persons to provide some or all of the Services.

(b) The Supplier is responsible for the work of any of the Supplier’s subcontractors.

(c) Subject to clause 5(d), any work undertaken by any of the Supplier’s subcontractors will be undertaken to the same standard as stated in these terms and conditions.

(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in these terms and conditions (including as to timing or quality), any Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.

6. Client’s obligations

(a) During the performance of the Services the Client will:

(i) cooperate with the Supplier as the Supplier reasonably requires;
(ii) provide the information and documentation that the Supplier reasonably requires;
(iii) make available to the Supplier such Facilities as the Supplier reasonably requires; and
(iv) ensure that the Client’s staff and agents cooperate with and assist the Supplier.

(b) The Client will not charge for the Supplier’s use of the Facilities made available by the Client.

(c) If the Client does not provide the Facilities that the Supplier reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by the Supplier will be paid by the Client.

(d) Any image or photographs requested by the Supplier pursuant to clause 6(a)(ii) must be provided:

(i) In editable, vector, digital format (including .gif, .jpeg, .png, .eps, .psd or.tiff format); and
(ii) In high resolution.

(e) Any text files provided by the Client under this clause 6 must be in electronic format which has been proofread and signed-off by the Client.

(f) All images, photographs and/or text requiring external scanning, retouching, or documents provided in hard copy requiring re-typing will incur further charges at the Supplier's hourly rate stipulated in clause 4.1(b) of these terms and conditions.

(g) If the Supplier requests the Client, during the performance of these terms and conditions, to provide Text Copy and Content Images, the Client must provide that information within four (4) weeks of an official request from the Supplier. If the Client fails to comply with this clause, the Supplier reserves the right to a revision to any of the Fees pursuant to clause 4.1(d).

(h) If the Text Copy and Content Images referred to in clause 6(g) are not provided for a period of eight (8) weeks after the Supplier's initial request, the Client will be considered to be in default of these terms and conditions, and the Supplier reserves the right to terminate these terms and conditions immediately in accordance with clause 12.

(i) The Client acknowledges that any failure to comply with its obligations in this clause 6 will impact the Supplier's ability to deliver the Services in accordance with the Quotation and/or any timeframe represented by the Supplier under these terms and conditions.

7. No partnership or employment relationship

(a) Nothing in these terms and conditions constitutes the relationship of employer and employee between the Client and the Supplier or between the Client and the Supplier’s Personnel.

(b) It is the express intention of the Parties that any such relationships are denied.

8. Disclosure and ownership of Intellectual Property

(a) The Parties agree that other than as expressly provided in this clause, nothing in these terms and conditions transfers or grants to any party any right, title, or interest in or to any Intellectual Property in any Background IP. The Supplier grants to the Client a worldwide, royalty free, perpetual, irrevocable, transferable, non-exclusive licence to use the Background IP to the extent necessary for the Client to derive full benefit from its acquisition of the Deliverables.

(b) The Client acknowledges that ownership of the Contract IP remains vested in the Supplier. The Supplier grants to the Client an exclusive, fully paid-up, irrevocable, worldwide licence to use the Contract IP for the sole purpose of enabling the Client to derive full benefit from the Deliverables during the term of these terms and conditions.

(c) The Supplier agrees to indemnify the Client fully against all liabilities, costs and expenses which the Client may incur if the Contract IP or Background IP infringes the rights of a third party, save that the Supplier will have no indemnity obligation if any infringement, suspected infringement or alleged infringement of the Contract IP or Background IP arises from:

(i) use of the Deliverables in combination by any means and in any form with other goods not specifically approved by the Supplier;
(ii) use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by the Supplier;
(iii) modification or alteration of the Deliverables without prior consent in writing of the Supplier; or
(iv) any transaction entered by the Supplier relating to the Deliverables without the Supplier's prior consent in writing.

(d) The obligations accepted by the Parties under this clause 8 survive termination or expiry of these terms and conditions.

9. Confidentiality

(a) A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

(b) The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.

(i) all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
(ii) the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.

(d) The Confidential Information does not include information which:

(i) is generally available in the public domain otherwise than as a result of a breach of clause 9(a) by the Supplier; or
(ii) was known by the Recipient prior to the Discloser disclosing the information to the Supplier.

(e) The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.

(f) The Recipient agrees to indemnify the Discloser fully against all liabilities, costs, and expenses which the Discloser may incur as a result of any breach of this clause 9 by the Recipient.

(g) The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 9.

(h) The obligations accepted by the Recipient under this clause 9 survive termination or expiry of these terms and conditions.

(i) Notwithstanding any other provision of this clause 9, the Client agrees that the Supplier may from time to time disclose certain Confidential Information and documentation of the Client relating to the Services solely for the purposes of marketing, maintenance, to obtain their technical specifications, or for any other purpose which is agreed between the Parties in writing.

10. Privacy

(a) The Client is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by the Client to the Supplier in connection with these terms and conditions so as to ensure that the Supplier's dealings with that information pursuant to these terms and conditions comply with the Supplier's obligations under any Privacy Laws.

(b) The Client must indemnify the Supplier against and must pay the Supplier on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 11(a).

(i) immediately notify the Supplier if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of these terms and conditions, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
(ii) comply with any directive from the Supplier as to which Party will discharge any statutory reporting obligation arising from the incident;
(iii) conduct or assist the Supplier in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
(iv) ensure compliance with all mandatory data breach reporting obligations arising out if the breach or suspected breach.

(d) The Client upon entering these terms and conditions provides its consent for the Supplier to:

(i) Obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to any credit provided by the Supplier; and
(ii) Exchange any information about the Client with a credit provider listed in a credit report retained under clause 10(d)(i) of these terms and conditions to:

(A) Assess a credit application by the Client;
(B) Notify other credit providers of a default by the Client; or
(C) To obtain information on whether the Client is in default with other credit providers.

(e) The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Client and Supplier in writing, or as required by law from time to time:

(i) provision of Services; and/or
(ii) marketing of Services by the Supplier, its agents, or distributors; and/or
(iii) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(iv) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(v) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services

(f) The Supplier may give information about the Client to a credit reporting agency for the following purposes:

(i) to obtain a consumer credit report about the Client; and/or
(ii) allow the credit reporting agency to create or maintain a credit information file containing information about the Client; and/or
(iii) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

11. Warranties, liability, and indemnities

11.1 Warranties

(a) The Supplier warrants that it will use reasonable care and skill in performing the Services.

(b) If the Supplier performs the Services (or any part of the Services) negligently or in breach of these terms and conditions , then, if requested by the Client, the Supplier will re-perform the relevant part of the Services, subject to clauses 11.5(a) and 11.5(b) below.

(c) The Client’s request referred to in clause 11.1(b) must be made within three (3) months of the date the Supplier completed performing the Services or termination of these terms and conditions (whichever occurs first).

11.2 Employees and subcontractors

(a) The Supplier covenants that the Supplier is solely responsible for the payment to the Supplier’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Supplier’s employees or agents.

(b) The Supplier must otherwise comply with legislation applicable to the Supplier’s employees and agents.

11.3 Compliance with all laws

Throughout these terms and conditions the Supplier must comply at the Supplier’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to the Supplier or to the Services.

The Supplier must indemnify the Client from and against all actions, costs, charges, claims, and demands in respect of such action, cost, charge, claim and demand.

11.4 No warranties

(a) The Supplier provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in these terms and conditions or elsewhere.

11.5 Limitation on liability

(a) Except in the case of death or personal injury caused by the Supplier’s negligence, and to the maximum extent permitted by law, the liability of the Supplier under or in connection with these terms and conditions whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Client to the Supplier under these terms and conditions.

(b) To the maximum extent permitted by law, the Supplier is not liable to the Client for any Indirect or Consequential Loss howsoever occurring in connection with these terms and conditions.

(i) in the case of goods supplied to the Client, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the Client of the replacement or supply), or the repair of the goods (or the payment of the cost to the Client of the repair); and
(ii) in the case of Services supplied to the Client, the supply of the Services again or the payment of the cost to the Client of having the Services supplied again.

11.6 Client's warranties

(a) The Client warrants that all materials supplied to the Supplier to be used for the provision of the Services:

(i) Are true and correct in every particular;
(ii) Will not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
(iii) Will not breach any advertising industry standards or guidelines; and
(iv) Will not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Australian Consumer Law.

(b) The Supplier reserves the right to refuse to accept any material submitted by the Client that does comply with this clause.

(c) The Client acknowledges that the Supplier has relied on the warranties provided by the Client under clause 11.6(a) upon entering these terms and conditions and continuously during the provision of the Services.

11.7 No reliance

Each of the Parties acknowledges that, in entering into these terms and conditions, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in these terms and conditions. Any conditions, warranties or other terms implied by statute or common law are excluded from these terms and conditions to the fullest extent permitted by law.

11.8 Survival of obligations

The obligations accepted by the Supplier and the Client under this clause 11 survive termination or expiry of these terms and conditions.

12. Termination

(a) Either Party may terminate these terms and conditions without cause by providing sixty (60) days' notice in writing to the other if the Party.
The Parties may elect to waive the sixty (60) day notice period in clause 12(a) if it is mutually agreed between the Parties in writing.

(b) Either Party may terminate these terms and conditions immediately upon the happening of any of the following events:

(i) the other party breaches a material term of his Agreement and fails to remedy such breach within twenty eight (28) days of receiving written notice of the breach from the non breaching Party;
(ii) if the other Party enters into a deed of arrangement, or an order is made for it to be wound up;
(iii) if an administrator, receiver or receiver/manager or a liquidator is appointed to the other Party pursuant to the Corporations Act;
(iv) if the other Party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act; or
(v) if a Key Person of the other Party is unavailable for a period exceeding thirty (30) consecutive days due to a Force Majeure Event.

(c) Upon termination of these terms and conditions any fees, expenses, or reimbursements payable by the Client to the Supplier in respect of any period prior to the Termination Date must be paid by the Client within five (5) days after the Termination Date. This includes any non-cancelable materials or services which the Supplier has committed itself to purchase on behalf of the Client pursuant to these terms and conditions up to the Termination Date.

(d) After the Termination Date, provided that there is no outstanding Fees or obligations owing by the Client to the Supplier, the Supplier will transfer, assign, and make available to the Client all property and materials in its possession or control belonging to the Client, however such transfer or assignment will occur at the Client's sole expense.

(e) The obligations of the Supplier under these terms and conditions will cease from the Termination Date.

13. General

13.1 Force Majeure

(a) Neither Party has any liability under or may be deemed to be in breach of these terms and conditions for any delays or failures in performance of these terms and conditions which result from a Force Majeure Event.

(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

(c) If such circumstances continue for a continuous period of more than sixty (60), either Party may terminate these terms and conditions upon written notice to the other Party.

13.2 Amendment

These terms and conditions may only be amended in writing signed by duly authorised representatives of the Parties.

13.3 Assignment

(a) Subject to clause 13.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under these terms and conditions without the prior written agreement of the other Party.

(b) A Party may assign and transfer all its rights and obligations under these terms and conditions to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under these terms and conditions.

13.4 Entire agreement

(a) These terms and conditions contain the whole agreement between the Parties in respect of the subject matter of these terms and conditions

(b) The Parties confirm that they have not entered into these terms and conditions on the basis of any representation that is not expressly incorporated into these terms and conditions.

13.5 Waiver

(a) No failure or delay by the Supplier in exercising any right, power or privilege under these terms and conditions will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power, or privilege.

(b) The rights and remedies provided in these terms and conditions are cumulative and not exclusive of any rights and remedies provided by law.

13.6 Agency, partnership etc.

(a) These terms and conditions will not constitute or imply any partnership, joint venture, agency, fiduciary relationship, or other relationship between the Parties other than the contractual relationship expressly provided for in these terms and conditions.

(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

13.7 Further assurance

Each Party to these terms and conditions must at the request and expense of the other do all things reasonably necessary to carry out the provisions of these terms and conditions or to make it easier to enforce.

13.8 Severance

If any provision of these terms and conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from these terms and conditions and rendered ineffective as far as possible without modifying the remaining provisions of these terms and conditions, and will not in any way affect any other circumstances of or the validity or enforcement of these terms and conditions.

13.9 Notices

A notice or other communication connected with these terms and conditions have no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in these terms and conditions or sent by email to the email address of the addressee.

13.10 Work, health, and safety

The Supplier must comply with all relevant work, health, safety and welfare standards and regulations determined by the Client or as prescribed by legislation.

13.11 Law and jurisdiction

These terms and conditions take effect, are governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

13.12 Joint and Several Liability

Where the Client consists of more than one person and/or entity, each of those persons or entities will be liable to Supplier under these terms and conditions both jointly and severally.

13.13 Client's duty to notify Supplier

(a) The Client must provide the Supplier with fourteen (14) days prior written notice of any proposed change to the Client's details, including but not limited to:

(i) Any change in the ownership of the Client's business;
(ii) If the Client is a corporate entity, then any change in the shareholder or directorship of the Client;
(iii) Any change in the Client's name; or
(iv) Any change in the Client's address, facsimile number, or business practice.

(b) If the Client fails to comply with clause 13.13(b), the Client will be liable for any Loss and Indirect or Consequential Loss incurred by the Supplier as a result of the Client's failure to comply with that clause.