AUSBIZ PARTNERSHIP TERMS & CONDITIONS

1. Definitions

In this Agreement unless the context otherwise requires or the contrary intention appears, the following terms will have the meanings assigned to them:

Agreement means this document, the Schedule and all appendices to this document.

Confidential Information means this Agreement and all information provided by a party to the other party in relation to or in connection with this Agreement or received or generated by a party in relation to or in connection with this Agreement, but excluding such information where it comes to the other party other than in connection with this Agreement, unless it came to them because of a breach of this Agreement or another confidentiality obligation or agreement by them or comes to them other than in connection with this Agreement through a third party who is under no obligation of confidentiality (except where this is as a result of a breach of this Agreement or another confidentiality obligation or agreement by the third party).

Content means written copy, images, video and artwork.

Content Credits means the dollar value available to You to purchase rate card or other items from AUSBIZ.

Deliverables mean the content to be produced by AUSBIZ as specified in the Schedule.

Schedule means the schedule attached to this document, specifying the term, services, deliverables and fees.

Services mean the services to be performed by AUSBIZ as specified in the Schedule.

Term means the term of the agreement as specified in the Schedule.

2. Term

This Agreement is for the term specified in the Schedule, unless extended by agreement between the parties in writing.

3. Production schedule

Where bespoke production is required, You and AUSBIZ will agree in good faith on a production schedule. You must do everything reasonably required of you as outlined in the agreed production schedule and give us any assistance that we reasonably require to facilitate the production and delivery of our services and deliverables in a professional and timely manner. We take no responsibility for delays in content production caused by the supply or approval of copy, material or files outside of the agreed production schedule.

4. Liaison and Approval

4.1 You will nominate a single contact authorised to make decisions to be the liaison point with AUSBIZ throughout the Term. You may change the nominated contact at any time and will inform AUSBIZ in writing as soon as possible. This contact will be deemed to have authority for advising us of any required live content, commissioning bespoke production and/or booking content distribution.

4.2 Where you commission bespoke production services, AUSBIZ will consult with You and consider all reasonable comments regarding content, images and design made by You, provided such comments are received by AUSBIZ prior to the stated approval deadline. You must not unreasonably withhold approval of articles, images and content.

4.3 Where the Services and/or Deliverables requires your approval and unless agreed otherwise in writing, two proofs of creative work will be provided for the Client review and approval in line with the agreed production schedule.

4.4 AUSBIZ will not be liable in any way for any mistake in Content that has been approved by the Client.

5. Client’s obligations for content supplied

5.1 You warrant that You will not provide AUSBIZ with any information, copy, artwork, photographs or illustration which is misleading, false, obscene, defamatory or otherwise in breach of any law or infringes any person’s copyright or moral rights.

5.2 You must ensure that all content supplied by you or on your behalf is of a professional standard, or consents to AUSBIZ making all necessary changes or deleting inappropriate material at its discretion, subject to your final approval.

5.3 You will respond promptly to requests for artwork, expert contact details, talent, text, approvals or other materials requested by AUSBIZ in relation to the provision of the Deliverables.

6. Indemnity

6.1 You agree to continually indemnify AUSBIZ from and against all losses, damages, costs, claims, expenses and liabilities incurred by AUSBIZ in dealing with any claim (or threatened claim) against it arising out of any material sourced or supplied by You or on your behalf or any breach by You of a warranty or a term of this Agreement. However, You liability to indemnify AUSBIZ under this paragraph will be reduced proportionately to the extent that AUSBIZ’s negligent act, omission or breach of this Agreement contributes to any relevant losses, damages, costs, claims, expenses or liabilities.

6.2 AUSBIZ agrees to continually indemnify You from and against all losses, damages, costs, claims, expenses and liabilities incurred by You in dealing with any claim (or threatened claim) against it arising out of any material sourced or supplied by AUSBIZ or any breach by AUSBIZ of a warranty or a term of this Agreement. However, AUSBIZ’s liability to indemnify You under this paragraph will be reduced proportionately to the extent that Your negligent act, omission or breach of this Agreement contributes to any relevant losses, damages, costs, claims, expenses or liabilities.

6.3 A party’s obligation to indemnify another party under this clause 6 is reduced to the extent the other party caused or contributed to the loss, damage, cost, claim, expense and liability.

6.4 AUSBIZ’s liability in connection with any failure to comply with its obligations under this Agreement or with a guarantee applying to the supply of services by us under the Australian Consumer Law is limited, at our election to: the supplying of the Services (or Deliverables) again; or the payment of the reasonable cost of having the Services supplied again.

6.5 Notwithstanding anything to the contrary and to the extent permitted by law, neither party is liable to the other party for any indirect, special or consequential loss, namely including any loss of revenue, income or profits, loss of business opportunity, loss of business or contracts, loss arising from business disruption, loss of data, loss of anticipated savings, loss of interest or financing charges, or damage to custom, goodwill or reputation, suffered or incurred by any other party (including a third party) in connection with this engagement and this Agreement, howsoever arising (whether arising under contract, tort (including negligence), statute, equity or otherwise);

7. Marketing

AUSBIZ may publicise details of the partnership subject to the Client’s prior written approval.

8. Pricing, Invoicing and Payment

8.1 All items except those labelled “distribution” will remain at the supplied rate card price for the term of the partnership. Pricing for items which are considered “distribution” (such as advertising) are guaranteed until March 31st, 2020 after such time they may increase or decrease based on the ausbiz audience size.

8.2 Our tax invoices must be paid within 14 days of issue.

8.3 If any invoice payable by you remains unpaid after the due date for that invoice, we will be entitled to charge interest on the overdue amounts from the date on which the amount was due and payable under this Agreement until such time as those overdue amounts have been paid in full. Interest will be calculated daily on the outstanding amounts at the ‘Cash Rate Target’ stipulated by the Reserve Bank of Australia as at the date the interest is calculated plus 8%.

8.4 AUSBIZ may suspend Services should any invoices remain unpaid after 30 days.

9. Termination

9.1 Should You terminate this Agreement prior to the end of the Term, you must provide AUSBIZ with 30 days’ written notice and you must pay AUSBIZ’s fees in full for the remainder of the Term, except for when termination is due to the reasons outlined in clauses 9.2 and 9.3.

9.2 Either party may end this Agreement immediately by giving the other party written notice or termination if the other party: becomes (or threatens to become) insolvent or ceases carrying on business; or breaches a material term of this agreement and fails to rectify the breach within 14 days of receiving written notice of the breach. Upon the termination of this Agreement, You will immediately pay to AUSBIZ all of its entitlements under this Agreement.

9.3 A material term includes your payment obligations under this Agreement and any other term of this Agreement, your breach of which has not been remedied within 14 days after notice of the breach was given.

9.4 In the event of a termination by the Client, the Client acknowledges that AUSBIZ shall be compensated for the services performed through to the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c ) hourly fees for work performed by AUSBIZ or its agents as of the date of termination, whichever is greater; and the Client shall pay all fees and expenses incurred through and up to the date of cancellation.

10. Intellectual property

10.1 Subject to all fees having been paid, all documentation, literature, manuals, profiles, notes, memoranda, software, and any other intellectual property or materials (whether printed or electronic) created by us in the course of providing the Services or Deliverables (Created IP) or which are or become your property, shall be (or remain) your property.

10.2 We will do all acts, matters and things which may be reasonably required of us to vest, assign or complete copyright and/or ownership of the Created IP in you.

10.3 You grant to us a worldwide, royalty-free, perpetual, irrevocable, fully transferrable and sub-licensable licence to use and develop the Created IP for any purpose (Licence).

10.4 Notwithstanding anything to the contrary in these Terms, all intellectual property rights of each party, or any third party of either party, that are:

a) in existence prior to the Engagement Start Date;

b) or otherwise developed by a party and coming into existence independently of these Terms, (each party’s ‘Pre-Existing IP’) shall remain the property of that party and nothing in these Terms shall have the effect of transferring or assigning any intellectual property rights in a party’s (or a third party’s) Pre-Existing IP to the other party.

10.5 Notwithstanding anything to the contrary in these Terms, nothing in these Terms prevents us from developing for ourselves, or for others, any materials, deliverables or services which are the same as, similar to or competitive with any of the Services or Deliverables being provided by us to you under these Terms. Pursuant to the Licence created in clause 10.3 above, we are free to use and develop any software, knowledge, skills, experience, ideas, concepts, know-how or techniques that are used, developed or enhanced in the course of providing the Services and Deliverables to you.

11. Dispute resolution

11.1 AUSBIZ and the Client agree that they will resolve any dispute that arises between them by holding binding discussions and negotiations in good faith in order to attempt to amicably resolve the dispute. If the parties cannot resolve the dispute through discussions and negotiations, the Parties shall refer the dispute to an independent mediation and will use their best endeavours to resolve the dispute in mediation. The mediation will be located in Sydney, New South Wales.

11.2 If the dispute cannot be resolved at mediation the parties must proceed to commercial arbitration under the Commercial Arbitration Act 1984 (NSW), rather than by litigation. If any dispute arises requiring arbitration, AUSBIZ and the Client will endeavour to agree on a person to be appointed as arbitrator. If there is no agreement within 14 days of either party stating in writing to the other that a dispute should be referred to arbitration, then AUSBIZ and the Client agree to ask the President of the Law Society of New South Wales to nominate an arbitrator, and to accept the President’s nomination.

12. Confidentiality

12.1 Each party acknowledges that in performing its obligations and responsibilities under this Agreement, it shall acquire and have access to the Confidential Information of the other party.

12.2 During the term of and after termination of this Agreement each party shall:

a) use Confidential Information solely for the purpose of performing its obligations and responsibilities under this Agreement;

b) receive and maintain all Confidential Information in confidence;

c) maintain and store all Confidential Information in accordance with any relevant procedures established by the Client and continue to maintain and store Confidential Information for the earlier of at least 2 years after termination of this Agreement or such other period as required by any relevant law; and

d) not disclose (directly or indirectly) Confidential Information to any third party or allow any third party to make such a disclosure, except where:

the party has received the prior written consent of the other party and this consent has not been revoked (consent may be given or declined in the other party’s absolute discretion);

disclosure is required by law or a regulatory body, however if a government, regulatory authority or a court orders the party to disclose Confidential Information of the other party, the party must immediately notify the other party; or

disclosure is to the party’s staff, legal or accounting advisers and that disclosure is made on a “need to know” basis and in the normal course of business for the purpose of the party meeting its obligations under and in relation to this Agreement.

12.3 If Confidential Information is to be disclosed to a third party, the party must have obtained the third party’s agreement to keep the information confidential in accordance with terms essentially the same as those in this clause and this Agreement (including the third party’s subsequent disclosure of the information to other third parties).

13. General

13.1 In no way does this agreement transfer ownership of any Client trademark, whether registered or unregistered, and AUSBIZ shall only make use of Client trademarks with the Client’s approval.

13.2 AUSBIZ will make every endeavour to produce the services and deliverables specified in the Schedule in accordance with this Agreement however it is acknowledged by both parties AUSBIZ does not accept any liability resulting from unforeseen circumstances not within the reasonable control of AUSBIZ that impair the ability to deliver such as breakdown of machinery, third party supplier and customs issues, or industrial disputes.

13.3 This Agreement contains the whole of the Agreement between AUSBIZ and the Client and can only be amended in writing. If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or part, the validity of other provisions of this Agreement and the remainder of the provision in question will not be affected.

13.4 We can each give each other notices under this Agreement at the addresses in this Agreement, and also at the email addresses most recently used in communications between us. In the case of notices by fax or email, the notice will be deemed given at the time indicated on the Sent or Transmitted time indicated on or by the transmission service used by the sender.

13.5 The following clauses of this Agreement survive expiration or termination of this Agreement: clauses 6, 8, 9, 10, 11, 12, 13.

SCHEDULE 1 – Special conditions for Advertising

The following special conditions only apply for Advertising/Content Distribution services.

Partnerships booked through a client’s media or advertising agency will not receive a commission from AUSBIZ unless by prior agreement.

All advertisements are subject to approval by AUSBIZ, who reserves the right to reject any advertiser deemed inappropriate.

AUSBIZ accepts no responsibility for any loss resulting from the failure of an advertisement due, in full or part, to any error in an advertisement.

You must deliver your Advertisement(s) or Distributed Content to AUSBIZ by the date and in the format AUSBIZ specifies. If you do not, this may result in lost value or campaign delivery, which will not be compensated by AUSBIZ nor result in make good being offered by AUSBIZ.

AUSBIZ reserves the right to change incorrectly supplied artwork without notification to the advertiser and will pass on associated costs to the advertiser.

Cancellations for advertising activity need to be received in writing at least 1 week before the activity live date. Cancellations after the booking deadline will be considered as having been delivered by AUSBIZ.

The advertiser and its agents warrant the material supplied complies with all relevant laws and regulations and indemnifies AUSBIZ against any and all claims for damages, costs, compensation, copyright or any liability whatsoever including defamation, slander, breach of copyright, infringement of trademarks, business names and patents arising from publication.

AUSBIZ will measure digital advertising through its own analytics systems. Results from Customer or third party ad-servers will not be accepted for the purposes of billing and assessment of advertising.

AUSBIZ is not liable for any loss, damages or liabilities arising from a failure of the internet or any telecommunications structure.

AUSBIZ protects personal information it holds from misuse, loss, unauthorised access, modification or disclosure by various means, including firewalls, password access, and secure servers.

AUSBIZ collects a customer’s information to provide the advertising services to the customer and for invoicing purposes. AUSBIZ may disclose this information to its related companies, to credit reporting agencies and other third parties as part of provision of the advertising. Where a customer has an overdue account, AUSBIZ may disclose personal information to debt collection agencies to recover the amount due.