Terms And Conditions
This Services Agreement (Agreement) comprises the Terms Summary below and the Terms and Conditions that follow.
DEFINITIONS AND INTERPRETATION
In this Agreement, the following definitions apply:
Business Day means between 8.30am and 5.00pm on weekdays other than a Saturday, Sunday or public holiday in Western Australia, unless specified otherwise in this Agreement;
Client means the entity described in the Schedule;
- Commencement Date has the meaning as specified in the Terms Summary;
Confidential Information means any information (whether in writing or otherwise) disclosed, directly or indirectly, to a Recipient or its Representative by a Discloser, whether before or after the date of this Agreement, including information relating in any way to the Technology and information concerning the business and affairs (financial or otherwise) of a party, but does not include information which, in the absence of a breach of any obligation of confidentiality:
(a) is or comes to be part of the public domain or readily available in the public domain, by reason of general publication or similar;
(b) was known by the Recipient prior to its disclosure by the Discloser;
(c) was independently developed by the Recipient without reference to information disclosed by the Discloser; or
(d) was obtained by the Recipient from a source other than the Discloser, in circumstances which did not involve a breach of confidentiality.
Discloser means a party disclosing or enabling disclosure of Confidential Information to the other party under this Agreement.
Expiry Date has the meaning specified in the Terms Summary.
Force Majeure means an event or circumstance beyond the reasonable control of a Party, which results in that Party being unable to perform an obligation on time, and is limited to natural events like fire, flood or earthquake, national emergency, terrorist act, or war.
GST means goods and services tax, or a similar value added tax levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Initial Term means the minimum term of the Agreement as specified in the Terms Summary, and as may be extended in accordance with clause 2.2.
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Recipient means a party receiving or accessing Confidential Information from the other party under this Agreement.
Services means the services specified in the Terms Summary to be supplied by Ponderlust to the Client under this Agreement;
Third Parties means those parties recommended and/or engaged by Ponderlust and/or selected by the Client from time to time.
In this Agreement, unless the context requires otherwise:
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them, whether or not it is incorporated or has a separate legal identity, and any executor, administrator and successor in law of the person and permitted assigns;
- the Schedules to this Agreement form part of it;
- a reference to a clause or Schedule is a reference to a clause of, or a Schedule to, this Agreement;
- a reference to any agreement or document (including, without limitation, a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
- a reference to any party to this Agreement or another agreement or document includes the party's permitted successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives); and
- the word “includes” in any form is not a word of limitation.
TERMS OF AGREEMENT
- The Agreement will commence on the Commencement Date and continue for its term unless otherwise stipulated or terminated in accordance with the terms of this Agreement.
- The work detailed in this agreement does not commence until a remittance is made.
- Following expiry of the Initial Term, subject to the parties entering into a new agreement for alternative or additional services to the Package, this Agreement will automatically renew for subsequent periods equal to the length of the Initial Term (each a Subsequent Term).
- The renewal will occur unless the Client notifies Ponderlust in writing at least 30 days’ prior to the expiry of the Initial Term of its intention to allow the Agreement to expire.
- Delivery of services
- Ponderlust will provide the Services to the Client in consideration of the Fee, subject to the terms of this Agreement.
- In addition to any other obligations under this Agreement, Ponderlust will perform the Services in a professional manner using due care and skill.
- Ponderlust will use reasonable endeavours to complete the Services by any dates agreed between the parties.
- The Services will be performed by the employees, contractors or agents that Ponderlust may choose as most appropriate to carry out the Services.
- The Client consents to Ponderlust outsourcing specific services to Third Parties in order to comply with its obligations under this Agreement.
- The method of delivering the Services will be determined at the sole discretion of Ponderlust and can be delivered remotely or by onsite attendance.
- The Client acknowledges that the provision of the Services is not subject to any performance guarantees or promises including but not limited to ranking positions on internet search engines or the number of searches, visitors or click-throughs.
- The Client must:
- make available free of charge and within a reasonable time all information, facilities and services reasonably required to enable Ponderlust to provide the Services;
- be responsible for providing clear instructions and information as requested in an expeditious manner. If the Client does not provide information or feedback within seven days of any such request, the Client acknowledges that this may affect Ponderlust’s ability to provide the Services and the Client shall not be entitled to any refund or credit against fees in the event that Ponderlust are prevented from providing the Services;
- diligently act upon recommendations detailed to the Client by Ponderlust, complying with the terms of Third Parties as applicable, and completing tasks in a timely manner;
- provide assistance and technical information to Ponderlust, as reasonably required by Ponderlust in sufficient time to facilitate the execution of the Services in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to Ponderlust and warrants and undertakes to Ponderlust that the Client’s employees assisting in the execution of an Order have the necessary skills and authority;
- as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by Ponderlust. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by Ponderlust;
- inform Ponderlust immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by Ponderlust. The Client acknowledges that it is are solely responsible if any such changes affect the provision or performance of the Services and the Client shall not be entitled to any refund or credit against fees in this event; and
- sign any PPSR form or notice and do all things necessary to allow for lodgement of such notice or form as necessary to protect Ponderlust’s interests created by this Agreement under the Personal Property Securities Act.
- In the event that the Client fails to undertake those acts or provide those materials required under this clause 3 within any agreed deadline (and at least within 15 Business Days of the date requested by Ponderlust) Ponderlust shall be entitled to invoice for the Services that it has supplied and the remaining Services whether or not Ponderlust has been able to deliver them.
- As notified by Ponderlust, in certain cases for amendments to existing optimisations, the Client shall allow Ponderlust use of its website or content management system’s username and password in order to gain access to carry out optimisation.
- Ponderlust require that prior notice be given for any alterations relating to the Client’s website(s) that may affect the services supplied by Ponderlust. If alterations are made by the Client or a third party to the Client’s site(s) search engine placements may be affected and Ponderlust cannot be held responsible.
- In addition to the obligations set out in clause 7.6, the Client agrees to provide a link, whether in the footer or dedicated page to the Ponderlust website crediting them for SEO or other creative services. Ponderlust agrees to provide the same to the Client for website authority building purposes, and portfolio purposes.
- Ponderlust advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines and the Client understands that regular, unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO services.
- Interruptions and errors
Ponderlust will use best endeavours to supply the Services without warranting that supply will be interruption or error free.
- Out of scope
- No services other than the Services are covered by this Agreement.
- Any changes to the Services requested by the Client either verbally or in writing during the term of this Agreement (Out of Scope Services) may result in an additional fee being charged to the Client in accordance with Ponderlust’s rate card applicable from time to time, or the rate specified in the Terms Summary.
- In some situations, if the Client makes a request in advance, Ponderlust may agree to substitute certain activities within the Services with other activities that are equivalent to the original Services. Any substitution requests will be accepted by Ponderlust at their sole discretion.
- Ponderlust operates during normal business hours (9:00am-5pm Monday to Friday), but offers service outside of these business hours for ‘urgent’ or ‘emergency’ activity. Urgent or emergency requests are any request that is received outside of normal business hours that requires, or calls for, an immediate action or response. This work is charged separately and additionally from the agreed fee detailed in this contract. This fee is set at the discretion of the account manager for the work requested but set at a minimum of $150 AUD per hour and a minimum threshold of 2 hours. This holds true unless the contract explicitly agrees to work outside of business hours without additional remuneration.
- The Client acknowledges that while Ponderlust provides the digital marketing tools, strategies and guidance to grow the Client’s business and improve lead conversion, the successful application of these tools and strategies are dependent on many factors such as the nature of the industry within which the Client operates, the Client’s ability to quickly implement any recommendations, as well as other market variables.
- The Client acknowledges and agrees that Ponderlust, its directors, principals, employees and representatives are not responsible for the growth of the Client’s business, nor any consequences, undesired or otherwise, that may flow from their implementation of the tools and strategies.
- Ponderlust are unable to ensure or guarantee the security of information transmitted over the internet. Any information or data transmitted through the use of or in connection or relation to the Services is at the Client’s risk.
DELAYS AND COMPLAINTS
- In the event that the Client proves that the Services are delayed or not in accordance with this Agreement, Ponderlust shall be obliged to remedy or redeliver, at its own discretion, without undue delay.
- Complaints concerning delays or breach of Contract must be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of Ponderlust within 48 hours, the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of contract.
- The Client acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that Ponderlust cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
- Ponderlust’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
- The Client’s exclusive remedies for late delivery or Services not conforming with the Package are as specified in this clause 4 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of this Agreement and Ponderlust’s sole liability is to refund any payments for Services not conforming with the this Agreement, subject to the limitations set out in this Agreement.
SUSPENSION OF SERVICES
- Ponderlust may temporarily suspend the Services for the purpose of carrying out work at its premises or maintaining or upgrading its systems. Ponderlust will endeavour to give The Client prior notice of such suspension but sometimes may be unable to do so.
- Ponderlust may immediately and without notice suspend the provision of the Services to The Client without compensation or recourse in the event that:
- Ponderlust are required to do so in order to comply with a legal order or request from a governmental or other competent authority; or
- Ponderlust are reasonably aware or suspect that the Client is in breach of clause 11.
- Ponderlust may immediately and without notice suspend the provision of the Services to the Client in the event that Ponderlust are taking action for non-payment of any Fees. Any suspension of the Services pursuant to this clause will extend the Initial Term of the Agreement by the number of months during which the Services were suspended. In the event that it is necessary to suspend the provision of the Services by three months or more pursuant to this clause, Ponderlust reserves the right to cancel the Agreement without notice and the provisions of Section 4 will apply.
PAYMENT AND INVOICING
- The Fees are payable monthly in advance and are due and payable within 14 days of the date of a tax invoice supplied (Due Date). The Client acknowledges and agrees that Ponderlust will not commence the Services until payment for the first month of the Term has been received by Ponderlust.
- Fees which do not appear on a tax invoice for a particular period may appear on future Tax Invoices. The Client will not be invoiced for Services that in Ponderlust’s sole determination have not been rendered.
- The Client will pay all tax invoices by the Due Date or, if the Client elects to pay by credit card or by direct debit, Ponderlust will debit the credit card or nominated direct debit account for the amount of the Tax Invoice and any other Fees by the Due Date.
- Unless a credit application has been completed by the Client and approved by Ponderlust, Ponderlust may require the Client to pay a negotiated security deposit on Fees before entering into the Agreement. The security deposit will be held in escrow and the Client is deemed to have provided express consent for Ponderlust to deduct any amounts owed under the Agreement from the security deposit.
- Late payment shall be considered as constituting a material breach of this Agreement entitling Ponderlust (at its discretion) to cancel this Agreement or to affirm this Agreement and assert the usual remedies for breach.
- If the Client does not pay an invoice by the Due Date, Ponderlust may charge daily interest from the Due Date until the date on which payment is received.
- The Client will be liable for all reasonable and necessary collection costs (including legal fees charged on a solicitor/client basis and indemnify Ponderlust for such costs) Ponderlust incurs to collect an amount outstanding.
- If the Client in good faith disputes an amount in an invoice, the Client must notify Ponderlust in writing within 14 days of the date of invoice. This notice must set out reasons for the dispute and the amount in dispute (Disputed Amount). Ponderlust will within 14 days of the date of receipt of the notice review the invoice for the purposes of resolving such dispute.
- If a Fee is disputed, the Client is not entitled to withhold payment of the undisputed amount of the invoice.
- Subject to due performance by Ponderlust of its obligations under this Agreement and to the terms of this Agreement, except where an interruption, unavailability or impaired quality of the Service has been caused or contributed to by Ponderlust, the Client remains liable for all Fees.
- Accounts remaining in debit 30 days past the Due Date will be placed on credit hold without notice.
- Fees may be adjusted on the expiry of the Initial Term by an agreed amount.
- In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the provision of the Services, Ponderlust shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with this Agreement. Ponderlust shall be entitled to payment on the basis of Ponderlust’s rate card applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
- If the Client subsequently requires Ponderlust to complete the work within a shorter time frame than specified in the Order Ponderlust reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
- Except as set out in clause 7.1, all work performed by Ponderlust connected with the Services is the copyrighted works of Ponderlust. All Intellectual Property Rights in and in relation to the Services and any other materials, documents and analyses developed or to be developed by Ponderlust shall remain vested in and be the exclusive property of Ponderlust.
- All Intellectual Property Rights in any materials, articles or documents supplied by the Client shall remain vested in the Client. It is the Client’s responsibility to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to Ponderlust for incorporation into the Services. The Client grants or agrees to procure the grant of (as applicable) an irrevocable licence to Ponderlust to use the materials for the purpose of providing the Services for the duration of this Agreement, as well as for promotional purposes of a positive nature thereafter.
- If The Client becomes aware of any infringement or threatened infringement of any of Ponderlust’s Intellectual Property Rights or of any action detrimental to any of such rights, the Client shall immediately notify Ponderlust giving full particulars of such matters and the Client shall make no comment or admission to any third party in respect of such matter.
- Ponderlust will have the sole conduct of any proceedings relating to any of the Ponderlust Intellectual Property Rights and shall in Ponderlust’s sole discretion decide what action (including litigation, arbitration or compromise), if any, to take in respect of any infringement or alleged infringement of any of such rights or any other claim brought or threatened in respect of the use of any of such rights.
- The Client shall indemnify Ponderlust against all damages, losses and expenses suffered or incurred by Ponderlust as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
- The Client irrevocably licenses Ponderlust to use and display the Client’s name, figure and logo as a reference on Ponderlust’s website, other marketing materials or types of media whilst they are a Client of Ponderlust and for 18 months after this Agreement terminates. The Client agrees to send Ponderlust its most recent logo or figure as and when it is amended from time to time.
- Each Party must not, and must ensure that its officers, employees, agents and subcontractors do not, use or disclose any Confidential Information without the other Party’s consent, other than for the purposes of performing this Agreement.
- Each Party may disclose Confidential Information to its officers, employees, agents and subcontractors to the extent necessary for the performance of this Agreement, provided that the disclosing Party makes such persons aware that the information is confidential and must be kept confidential.
- The Client acknowledges that Ponderlust may recommend aspects of the Services be performed by Third Parties who will be required to comply with this clause 10, and any such work performed by Third Parties will be managed directly by Client in accordance with such separate agreement entered into between the Client and the Third Parties respectively.
- The obligations under this clause 8 do not apply to the extent that:
- any information is publicly available (other than as a result of a Party’s breach of this Agreement);
- any information is lawfully provided to a Party by a third party;
- a Party is required by law to disclose the information (and prior notice of the disclosure is given to the other Party); or
- a Party is required by this Agreement to disclose the information to a third party.
- The Party must, upon the earlier of the:
- receipt of a written request by the other Party; and/or
- termination of this Agreement,
- promptly return any Confidential Information supplied by the other Party. The Party may keep one copy of such Confidential Information for its audit and record keeping purposes.
- Ponderlust will comply with the Privacy Act 1988 (Cth) (“Privacy Act”).
- If Ponderlust collects or has access to Personal Information in order to provide the Services, Ponderlust will:
- ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
- not use Personal Information other than for the purposes of performance of the Services, unless required or authorised by law;
- not disclose Personal Information without the consent of the Client, unless required or authorised by law;
- immediately notify the Client if Ponderlust becomes aware that a disclosure of Personal Information is or may be required or authorised by law;
- make its officers, employees and subcontractors aware of Ponderlust obligations under this clause 9;
- comply with any request or direction of the Client arising from or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Act, and any guideline or regime on privacy as provided by the Client; and
- comply with such other privacy and security measures as the Client reasonably advises Ponderlust in writing from time to time.
- Ponderlust must immediately notify the Client upon becoming aware of any breach of this clause 9.
- The Client acknowledges that many online software packages and Ponderlust’s including, but not limited to, Google and Xero, store data in facilities which may not be wholly or in part based on Australian shores, and therefore may not fall under the jurisdiction of the Australian Privacy Principles. Ponderlust and Third Parties will take all reasonable steps to provide for the security of such stored data to the extent possible and act in accordance with the terms as provided by those Ponderlust and software packages. The Client may refuse to work with offshore Ponderlust or use software packages where data is not stored in Australia, where the Client deems the risk of data breach to be greater than the convenience and cost effectiveness of the solution provided.
Ponderlust will maintain, and will ensure that its personnel and engaged third party contractors, maintain such:
- secrecy and security measures as are reasonably necessary and within Ponderlust’s control, to ensure the physical security of and prevent unauthorised access to the back end of the Client’s website or social media platforms; and
- other secrecy and security measures as are specified in this Agreement or as reasonably notified by the Client to Ponderlust from time to time.
WARRANTIES AND INDEMNITIES
Each party warrants to the other that it has full power and authority to grant the rights to the other party as provided in the Agreement.
- The Client represents and warrants Ponderlust that:
- any materials delivered to Ponderlust under the Agreement shall be the Client’s property or the Client shall have licensed or obtained copyright permission to use such materials and none of the materials shall infringe copyright or patent laws, or involve the unauthorised use of the rights of any third party and do not contain any matter which is injurious or which is illegal, scandalous, obscene, libellous, defamatory or which would constitute a contempt of court; and
- as at the Commencement Date, there is no litigation, proceeding or claim pending or threatened against the Client or any other party relating to any material to be utilised in performance of the Agreement.
- Except as expressly set out herein and to the fullest extent permitted by law, Ponderlust exclude all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services or materials supplied pursuant to the Agreement, whether imposed by statute or by operation of law or otherwise, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose.
- Except to the extent caused by any fraud or dishonesty by Ponderlust, the Client agree to indemnify Ponderlust to the fullest extent permitted by law from and against all liabilities, losses, damages, and reasonable expenses, including but not limited to legal fees and expenses, arising from or in connection with any claim or action as a result of the use of or possession of material or information provided by the Client under the Agreement.
- The obligations set out in this clause shall survive variation, renewal, termination or expiry of the Agreement.
- The Client indemnifies Ponderlust and its officers, employees and agents (those indemnified) from and against any claim, action, demand, damage, loss, liability, cost, charge, expense, outgoing, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with:
- any breach of this Agreement by Ponderlust;
- any breach of law or infringement of a third party’s rights (including Intellectual Property Rights); and
- any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation,
to the extent caused or contributed to by any act or omission of the Client.
- Notwithstanding any other provision of this Agreement, the liability of a Party arising under and/or in connection with this Agreement will exclude any liability for indirect or consequential loss.
- To the maximum extent permitted by Law, the aggregate liability of the Client in respect of any causes of action arising under or in connection with this Agreement, whether in contract, tort (including negligence), statute, equity or otherwise, is limited to an amount equal to the cumulative total Fee paid or payable by the Client to Ponderlust under this Agreement or in connection with which the liability of the Client arises.
OTHER LIMITATIONS OF LIABILITY
- Ponderlust shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. Ponderlust shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at Ponderlust’s discretion) Ponderlust’s price list applicable from time to time.
- Ponderlust shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup and affecting the Services delivered by Ponderlust. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of Ponderlust’s rate card applicable from time to time at Ponderlust’s discretion.
- Ponderlust shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, Ponderlust shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond Ponderlust’s control and reserves the right to make changes to Services as a result of the same. In addition, Ponderlust shall not be liable for other changes or discontinuation of search engines.
- Ponderlust shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, Ponderlust shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
- Ponderlust shall not be responsible for URLs dropped or excluded by a search engine for any reason.
- The parties agree that any dispute arising between them during the course of this Agreement will be dealt with as follows:
- the party claiming that there is a dispute will send to the other a notice setting out the nature of the dispute (Dispute Notice);
- the parties will try to resolve the dispute by direct negotiation, including by referring the matter to persons who may have authority to intervene and direct some form or resolution;
- the parties have 30 days (or such other time as agreed by the Parties in writing) from the sending of the Dispute Notice to reach a resolution or to agree that the dispute will be submitted to mediation or some other form of alternative dispute resolution procedure; and
if the dispute is not resolved either:
- within the 30 day period contemplated in clause 14(c); or
- (if applicable) within 21 days after the making of a submission of the kind contemplated under clause 15.1(c), or such extended time as the parties may agree in writing,
- then either party may commence legal proceedings without further notice to the other party.
- Nothing in clause 15.1 or otherwise in this Agreement restricts or prevents a party from seeking urgent interlocutory or injunctive relief.
- Either party may terminate the Agreement by immediate written notice to the other in the event that the other party:
- ceases or threatens to cease to carry on business; or
- is subject to bankruptcy or liquidation proceedings (other than a voluntary liquidation for the purpose of reconstruction or amalgamation), is determined to be insolvent or otherwise is unable to meet its financial obligations, or has a receiver or administrator appointed over all or any material part of its assets; or
- commits a material breach of any provision of the Agreement, provided that in the case of any such material breach that is capable of remedy, termination shall only occur if the breach shall not have been remedied within thirty days of the other party having been given notice in writing specifying the nature of the breach and requiring it to be remedied. Any restriction or suspension of the Services by Ponderlust in accordance with Clause 3.3 shall not constitute a breach of this Agreement; or
- commits a material breach of any provision of the Agreement which has been previously breached once and then remedied.
- After the expiry of the Initial Term, the Client may cancel this Agreement at any time provided it gives Ponderlust at least 30 days’ prior written notice.
CONSEQUENCES OF TERMINATION
- Upon termination or expiry of the Agreement however arising:
- Ponderlust shall cease to provide the Services to the Client;
- the Client shall immediately cease to use the Ponderlust Intellectual Property Rights and any other rights of Ponderlust relating to the Services;
- the Client shall immediately pay all outstanding charges under the Agreement up to the date of termination; and
- the Client shall immediately deliver and return to Ponderlust all material and information supplied by Ponderlust pursuant to the Agreement.
- Ponderlust is entitled to terminate this Agreement without notice in the event that any of the Fees or other charges for the Services are not paid in accordance with this Agreement.
- Ponderlust agrees to hand over all digital assets that are connected to the Services as well as necessary logins and passwords (or alternatively give administrative access to the client).
- The Client acknowledges and agrees that some of the tools used by Ponderlust to deliver the Services are internal or industry specific and will not be accessible upon termination of the contract.
- Subject to clause 17.2, if a party (“Supplier”) should make a taxable supply to another party (“Recipient”) under this Agreement, the Recipient must pay to the Supplier the GST arising on the taxable supply at the time the consideration for it falls due for payment.
- The Supplier must give the Recipient a tax invoice relating to the taxable supply in exchange for the payment of GST under clause 17.1.
- As a separate and distinct obligation, the Recipient indemnifies the Supplier from liability for the payment of GST arising on taxable supplies made to the Recipient under this agreement, subject to the provision of a tax invoice by the Supplier under clause 17.1.
- In this clause, words and phrases that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have, so far as the context permits, the corresponding meaning.
- This Agreement constitutes the entire agreement between the parties as to its subject-matter and supersedes all prior contracts, arrangements and understandings.
- Any communication to be served on either of the Parties by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail, it shall be deemed to have been delivered:
- if delivered by hand: on the day of delivery;
- if sent by post to the correct address: within 72 hours of posting;
- If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 (twenty four) hours if no notice of non-receipt has been received by the sender.
- The parties’ relationship is one of independent contractors and nothing in this Agreement establishes or creates an agency, partnership or joint venture relationship between them.
- The Client may not assign, change or otherwise deal with their rights and obligations under this Agreement in any way without prior written consent of Ponderlust.
- No amendment or modification of this Agreement if valid unless in writing and executed by both parties.
- This Agreement is governed by the laws of Western Australia and each party submits to the jurisdiction of the Western Australian courts for all matters arising in connection with this Agreement.
- This Agreement may be executed in one or more counterparts (including by electronic signature) which, taken together, constitute the one document.
- Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
- If any clause or subclause in this Agreement is unenforceable, illegal or void, or makes this Agreement or any part of it unenforceable, illegal or void, then that clause or subclause is severed and the rest of this Agreement remains in force.
- Each party must at its own expense promptly execute all documents and do or use reasonable efforts to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete this Agreement and all transactions incidental to it.