1. Interpretation
In these Conditions:
1.1 Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
1.2 Authorised Persons means the Recipient’s officers, employees, financiers and contracted professional advisers who reasonably require access to Confidential Information for the purposes of this Contract.
1.3 Business Day means a day that is not a Saturday, Sunday or public holiday in South Australia.
1.4 Confidential Information means all Information relating to the affairs of the Provider disclosed or made available to the Recipient or an Authorised Person by or on behalf of the Provider for the purposes of this Contract and includes:
1.4.1 Information that is by its nature confidential;
1.4.2 Information that is identified as confidential;
1.4.3 Information that the Recipient or Authorised Person knows or ought to know is confidential;
1.4.4 Information comprised in or relating to any Intellectual Property Rights of the Provider or any other person;
1.4.5 Information relating to the financial position of the Provider or any other person;
1.4.6 Information that has any actual or potential commercial value to the Provider or to any other person; and
1.4.7 Derived Information.
1.5 Client means the Client specified in the Quotation or if there is no such quotation, or there is no Client specified in the quotation, the receiver of the Services from Periscope and includes any servants, agents, or contractors acting on behalf of the Client where the context permits.
1.6 Conditions means these terms and conditions.
1.7 Consequential Loss includes any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or any other indirect or consequential loss.
1.8 Consumer means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law.
1.9 Consumer Guarantees means the consumer guarantees under the Australian Consumer Law.
1.10 Contract means a contract for the supply of Services in accordance with these Conditions, as evidenced by the acceptance of any Proposal and Quotation in accordance with clause 3 from the Client to Periscope.
1.11 Derived Information means any information derived or produced by the Recipient or any Authorised Person wholly or partially from any Confidential Information.
1.12 Disbursements means third party costs incurred by Periscope on behalf of the Client which from time to time may be listed in the Quotation or otherwise advised to the Client by Periscope in writing.
1.13 DocuSign means the website www.docusign.com, or any other website operated by DocuSign from time to time.
1.14 End Date means the end date specified in the Quotation, unless automatically renewed in accordance with clause 6.2.
1.15 Periscope means Periscope Media Pty Ltd ACN 633 627 399 and Periscope Ecom Pty Ltd ACN 59 671 718 979 ,and its associated entities.
1.16 Implied Terms means any guarantees, conditions, warranties or other terms implied by any Australian Commonwealth, State or Territory laws (excluding the Australian Consumer Law), or the laws of any other jurisdiction.
1.17 Information means information of any nature, knowledge, technology, ideas, technical data, concepts, techniques, processes, formulae, expertise, models, drafts and diagrams, drawings, computer programs, source codes, object codes, user manuals, programming manuals, modification manuals, flow charts, software listings, trade secrets, inventions, discoveries, designs, methods, knowhow, and any other scientific, computing, technical or manufacturing information and data whether recorded or not.
1.18 Intellectual Property and Intellectual Property Rights include property and rights in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after this agreement.
1.19 Liabilities means liabilities, losses, damages, actions, causes of action, arbitrations, claims, orders, judgments, outgoings, costs (including legal costs calculated on a solicitor and own client basis) and expenses, whether present or future, actual or contingent.
1.20 Proposal means any Proposal for Services put forward by Periscope to the Client, which will be subject to a Quotation and these Conditions.
1.21 Provider means a party who discloses or authorises the disclosure of Information for the purposes of this Contract.
1.22 Quotation means a quotation supplied by Periscope to the Client in respect of the Services.
1.23 Recipient means a party to whom Information is disclosed for the purposes of this Contract.
1.24 Services means the services provided by Periscope, being a full-service digital marketing agency specialising in SEO, Google Ads, Facebook Ads, sales funnels, branding and corporate identity development and website development, to the Client from time to time and which are the subject of a Quotation.
1.25 SEO means Search Engine Optimisation.
1.26 Start Date means the start date for the Services as outlined in the Quotation.
1.27 Term means the term during which Periscope will provide the Services to the Client, which will commence on the Start Date and end on the earlier of the End Date and the date of cancellation of the Contract in accordance with these Conditions.
2. General
2.1 These Conditions apply to all Services provided by Spectrum from the date of publication of these Conditions to Periscope’s Clients and the Client is deemed to have read and accepted these Conditions when accepting a Proposal and Quotation in accordance with clause 3.
2.2 These Conditions shall prevail over all inconsistencies in a Proposal and Quotation, unless Spectrum expressly agrees otherwise and that agreement is acknowledged in writing.
2.3 Spectrum may vary these Conditions and any such variations will have effect from the date of publication to the Clients of Spectrum.
3. Acceptance of the contract
3.1 The Client is deemed to have accepted the Quotation provided by Spectrum and the terms of the Contract by:
3.1.1 acceptance by e-signing through DocuSign;
3.1.2 signing and returning the acceptance contained in the Quotation; or
3.1.3 making any payment or part-payment to Spectrum for the Services; or
3.1.4 instructing Spectrum verbally to commence or continue providing the Services;
3.1.5 providing a written acceptance, whether by post, email correspondence, fax or other means, stating that the Client accepts the Quotation or instructing Spectrum to commence providing the Services; or
3.1.6 paying any invoices for payment issued by Spectrum calculated by the terms of this Contract.
4. Provision of the Services
4.1 Any timeframes for provision of the Services made known to the Client are estimates only and Periscope is not liable for late provision or non-provision of the Services.
4.2 The Client may cancel an accepted Quotation for Services if Spectrum is unable to deliver the Services within 90 days of any specified timeframe for the provision of Services.
4.3 Except where clause 4.2 applies:
4.3.1 Periscope is not liable for any loss, damage or delay occasioned to the Client or its customers arising from late or non-provision of the Services;
4.3.2 late provision or non-provision does not vary these Conditions or relieve the Client from its obligations to accept and pay for the Services.Spectrum
5. Information and materials provided by the client for the services
5.1 The Client is to provide Spectrum with any and all information, material and access that is reasonably requested by Spectrum in the timeframe and manner specified by Spectrum.
5.2 The Client warrants that such material or information provided is true and correct and that it does not violate any laws or infringe the rights of any third party
5.3 If the Client fails to provide the information, access and/or materials within the timeframe specified by Spectrum then Spectrum, in its sole and absolute discretion, may charge the Client additional costs as a result of this delay.
5.4 The Client warrants that it owns or is licenced all intellectual property rights in the information and/or materials provided and indemnifies Spectrum against any claim that may be made if the Client is in breach of this clause. The Client warrants that the information and/or materials provided is compliant with clause 24 of these Conditions.Spectrum
6. Term of the services and automatic renewal
6.1. The Term for the Services to be provided by Periscope to the Client will begin on the Start Date and expire on the End Date (Initial Term), unless cancelled earlier in accordance with these Conditions.
6.2. At the expiry of the Initial Term, the Term will be automatically renewed for successive periods of six (6) months each (each a Renewal Term), under the same terms and conditions as the Initial Term (except as varied pursuant to clause 6.3), unless the Client provides a written cancellation notice to Periscope not less than 30 days prior to the expiry of the Initial Term.
6.3. Not less than two (2) months before the expiry of the Initial Term or any subsequent Renewal Term, Periscope may provide the Client with written notice detailing the commercial terms for the upcoming Renewal Term (Renewal Term Proposal), which are deemed to be accepted by the Client for the Renewal Term unless the Client notifies Periscope of its intention to cancel this Agreement.
6.4. For the avoidance of doubt, if for any reason Periscope does not notify the Client as contemplated in clause 6.3, then the Renewal Term will be under the same terms and conditions as the Initial Term in all respects.
6.5. During any Renewal Term, the Client may cancel this Agreement with Periscope on one (1) month’s notice, provided such cancellation is by written notice to Periscope.
7. No guarantee of success of the services
7.1 Periscope will exercise all due care and skill in performing the Services but makes no warranty that the delivery of the Services will:
7.1.1 result in their website being highly ranked organically or their Google Ads being the first that appear;
7.1.2 result in an increase in the business (and profits of the business) of the Client;
7.1.3 result in an increase in the exposure of the brand of the Client;
7.1.4 increase the social media following of the Client;
7.1.5 result in an increase in sales as a result of the sales funnels created;
7.1.6 boost the public profile of the Client; or
7.1.7 result in the Client obtaining any other desired outcome.
8. Websites
8.1 General
8.1.1Spectrum does not warrant that any website it creates for the Client (Website) will be mobile responsive for all devices nor does it guarantee that the website created will be suitable for every website browser.
8.1.2 Spectrum does not guarantee the integration, functionality and continual operation of third party integrations, applications, plug-ins and software (Third Party Platforms) that are installed on the Website. Spectrum will not be responsible for any loss or damage suffered or incurred as a result of such failure in these Third Party Platforms. The Client also acknowledges and agrees that their activities and use of these Third Party Platforms may be subject to additional terms of service for each Third Party Platform.
8.1.3 Spectrum Media does not warrant or guarantee that the Website created for the Client will include accessibility features or be compliant with any legal requirements to include accessibility features. The Client acknowledges and agrees that it will be up to the Client to ensure there are accessibility features on the Website, if required, and that it complies with any legal requirements in respect of accessibility features.
8.1.4 Spectrum Media recommends that the Client takes out their own insurance policy which covers cyber hacking and loss of business caused by any hacking or failure of the Client’s website.
8.1.5 Spectrum Media recommend that their Clients include on the Website a privacy policy and website terms of use, and Spectrum Media will not include these documents on the Website they produce unless these are provided by the Client.
8.1.6 It is the Client’s responsibility to ensure that the domain name for the Website is secured and that they continue to renew and pay for the renewal of such domain name. If the domain server fails, Spectrum is indemnified by the Client for any and all liability, loss or damage that may be suffered as a result of such failure.
8.1.7 If a Client has an existing website and they ask Periscope, as part of the Services, to make amendments or upgrades to that website then Spectrum does not guarantee that the amendments or upgrades they made will work and will not be liable for any failure of that website.
8.1.8 The Client gives Spectrum permission to access and use their information to third party services that are to be included on their website and to store any login credentials for that service.
8.1.9 Spectrum does not have any relationship with users of the Client’s website (End Users) therefore Spectrum is not responsible for how the Client handles information on the End Users. The Client is responsible to provide notification to their End Users, and to the relevant authorities if required, of any security breach.
8.1.10 Elements of the Website and Third Party Platforms may automatically update from time to time and the Client agrees to receive such updates.
8.1.11 The Client must not reverse engineer the software or website produced by Spectrum.
8.2 Building the Website
8.2.1 If the Client instructs Spectrum to transfer the contents of an old website to their new one, or to transfer their website in any manner, then the transfer of this website will be at the sole and absolute risk of the Client and if any data is lost through this process then the Client will indemnify Spectrum for any resulting loss or damage as a result of the same.
8.2.2 The number of revisions of the draft website that will be offered by Spectrum to the Client will be outlined in the Proposal. If the Client wants further revisions or amendments made the website in excess of the number outlined in the Proposal then such revisions will be charged to the Client at Spectrum’s hourly rate, which hourly rate Spectrum will advise to the Client in writing before they proceed to work on such revisions.
8.2.3 If, during the build of the website, a critical error occurs through no fault of Spectrum then the Client will indemnify Spectrum from any liability, loss or damage that occurs as a result of such critical error.
8.3 Handover of the Website
8.3.1 Once Spectrum have completed creation of the website they will pass control of the website over to the Client. From this point in time Spectrum will no longer be involved in the maintenance, updating and operation of the website. It will be up to the Client to continue to maintain and update the website and Spectrum will not be liable for any failure of the website, or for any error caused by the Client failing to operate or update the website correctly.
8.3.2 Once the website is completed by Spectrum and handed over to the Client it will be owned by the Client, subject to Spectrum retaining intellectual property rights in the website design in accordance with clause 24.
8.3.3 After the website is handed over to the Client, the Client will be responsible for all backup and security of the website and Spectrum will have no liability for this.
8.3.4 If the Client requires any amendments to be made to the website by Spectrum after the website is handed over then such works will be charged at Spectrum’s hourly rate, which Spectrum will advise to the Client in writing.
8.3.5 Spectrum will be in no way liable for any loss, damage, demand, liability, claim or expense made against the Client by any third party as a result of the way in which the Client uses the website, including the content posted on the website.
8.4 Ongoing works for websites produced by Spectrum
8.4.1 The Client can request that Spectrum provide ongoing services in respect of the website, which services will be agreed between Spectrum and the Client. Such service will be provided for the monthly fee as provided in writing from Spectrum to the Client.
9. Branding and corporate identity development
9.1 Whilst Spectrum can assist the client with branding and corporate identity development, including the development of a logo for the Client, it cannot guarantee that this will result in increased sales or business for the Client.
9.2 Spectrum will use its best endeavours to ensure that any logo designed for the Client does not impede on the intellectual property rights of any third party.
9.3 Spectrum will develop the branding and corporate identity of the Client based on the information and materials provided by the Client in accordance with clause 5.
9.4 Once Spectrum has created a logo for the Client:
9.4.1 it will transfer all ownership rights in the logo to the Client upon the invoice/s issued to the Client in respect of these Services being paid for in full;
9.4.2 if the Client requires Spectrum to sign any documents to effect clause 9.4.1, the Client must have these documents prepared at their own cost. If Spectrum are concerned in respect of any terms of this documentation it may seek its own independent legal advice and will reserve its rights to pass this cost onto the Client; and
9.4.3 it is the Client’s responsibility to ensure that they do all that is necessary to secure their ownership rights in the logo, including registering any trade mark for the logo.
10. Google Ads
10.1 Whilst Spectrum can prepare Google Ads for the Client, Spectrum cannot guarantee the number of clicks any Google Ad will receive.
10.2 Spectrum will research the business of the Client and use high traffic keywords to create the Google Ad.
10.3 The Client’s website may affect the performance of the Google Ad, its positioning and conversions.
10.4 Google Ads will be charged per click, and the Client’s credit card will be provided for these charges to be made to as a disbursement in accordance with clause 17.
10.5 If there is a special offer made by the third party advertisement engine promoter, Spectrum does not guarantee that such offer will be ongoing or continuous and such promotion will be in the control of the third party.
10.6 Any account established for the purpose of these advertisements will be an account owned and controlled by Spectrum.
10.7 When the Client cancels the Service or at the expiry of the Term, Spectrum will pause the account and paid advertisements and remove the credit card details of the Client after the last bill is issued for the paid advertisements to date.
10.8 Spectrum cannot control where a paid advertisement gets reposted.
10.9 Images used by Spectrum in any paid advertisements are to be royalty-free images and will either be stock pictures or pictures that are taken from Spectrum’s website or social media pages. The Client may also provide such images to Spectrum clauses 24.4 and 24.6 will apply to these images.
10.10 Any Google Ads account will be subject to the terms and conditions of Google.
10.11 The Client acknowledges that Google has the ability to reserve the right to refuse advertisements for any reason. In the event of such refusal the Client acknowledges and agrees that it will remain liable to pay the fees of Google as well as those of Spectrum.
11. Facebook Ads
11.1 Whilst Spectrum can prepare Facebook Ads for the Client, Spectrum cannot guarantee the number of clicks any Facebook Ad will receive, or the impressions or placement of the Facebook Ad produced by Spectrum for the Client.
11.2 Spectrum will research the business of the Client and use high traffic keywords to create the Facebook Ad.
11.3 The Client’s website may affect the performance of the Facebook Ad, its positioning and conversions.
11.4 Facebook Ads will be charged per click, and the Client’s credit card will be provided for these charges to be made to as a disbursement in accordance with clause 17.
11.5 The Client will need to provide Spectrum with access to its Facebook account for the purpose of creating and posting the Facebook Ads.
11.6 Spectrum cannot control where a paid advertisement gets reposted.
11.7 Images used by Spectrum in any paid advertisements are to be royalty-free images and will either be stock pictures or pictures that are taken from Spectrum’s website or social media pages. The Client may also provide such images to Spectrum for their use. The terms of clauses 24.4 and 24.6 will apply to these images.
11.8 Any Facebook account and Facebook Ads will be subject to the terms and conditions of Facebook.
11.9 The Client acknowledges that Facebook has the ability to reserve the right to refuse advertisements for any reason. In the event of such refusal the Client acknowledges and agrees that it will remain liable to pay the fees of Facebook as well as those of Spectrum.
12. Sales Funnel
12.1 Spectrum will use its best endeavours to ensure that the sales funnels it creates will result in sales for the Client, but it cannot guarantee the success of these sales funnels.
12.2 Spectrum owns all intellectual property in its sales funnels works and has no obligation to show the Client what it does for the purpose of its sales funnel.
12.3 The Client acknowledges that the sales tunnel service provided is an intangible service.
12.4 In order for the sales funnel to work effectively, this will depend on the content of the Client’s website, the performance of any advertising undertaken by the Client (including but not limited to Google Ads and Facebook Ads), and their SEO. Spectrum is not responsible for website and SEO that is not created by them and which may result in the sales funnels being unsuccessful.
13. SEO
13.1 The Client acknowledges that SEO listings are organic, meaning there is no way to control how a page is listed through SEO, and SEO is merely a tool to help organic growth and listings of the Client’s website.
13.2 Periscope may arrange for blogs to be published including links to the Client’s website, and information about their products or services to assist in the process of improving the Client’s SEO. This will result in back links being added to the Client’s website, which the Client approves of by instructing Spectrum to provide SEO services to them. Periscope has no control over what these back links and blogs will contain nor can they control whether they will continue to stay live.
13.3 The Client understands that if their website is hacked this will cause their SEO rankings to drop and this will be at no fault of Periscope.
13.4 Spectrum cannot control any negative SEO that a competitor may use against the Client and does not guarantee that they can remedy any negative SEO.
13.5 Spectrum owns all intellectual property in its SEO works and has no obligation to show the Client what it does for the purpose of its SEO.
13.6 When the Term expires or the Client cancels the Contract, Spectrum will not be responsible for the removal of any SEO or external links created.
13.7 The Client acknowledges that the SEO service provided is an intangible service.
13.8 If there is any amendment by third parties and their requirements of SEO, Spectrum does not guarantee that their SEO practices will mirror the same.
14. British consumer law
Where the Client is provided Services as a Consumer:
14.1 the Services are supplied subject to the Consumer Guarantees;
14.2 if the Services fail to meet any Consumer Guarantee, the Client will be entitled to such rights and remedies as are permitted or provided in the British Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded;
14.3 the Client may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Client under the British Consumer Law.
15. General limitation on liability
15.1 This clause 15 does not limit the liability of Spectrum under the British Consumer Law.
15.2 Spectrum shall not be liable for any guarantee, warranty or representation as to the quality, performance, and fitness for purpose or otherwise of any Services unless expressed in writing and any such warranty or representation shall be limited to its express terms.
15.3 None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.
15.4 Spectrum’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of Spectrum to repairing or re-supplying the Services which have been found defective, or, paying the cost of re-supplying the Services which have been found defective.
15.5 Spectrum is not liable in tort for any loss or damages suffered by the Client or by any third party.
15.6 In no circumstance whatsoever shall Spectrum be liable to the Client or to any third party for any Consequential Loss in connection with any Contract or Implied Terms and the Client will keep Spectrum fully indemnified against any claim made against Spectrum by the Client or a third party for Consequential Loss.
16. Prices and GST
16.1 Unless otherwise stated all prices quoted by Spectrum are net, exclusive of Goods and Services Tax (GST).
16.2 GST applies to the provision of Services by Spectrum and the amount payable by the Client will be increased by a percentage equal to the prevailing of GST rate at the time of delivery of the Services.
16.3 Spectrum may amend their pricing at any time by giving prior written notice to the Client of such amendment.
17. Disbursements
17.1 Any disbursements incurred by Spectrum in providing the Services to the Client will be due and payable by the Client and will be in addition to the price of the Services provided by Spectrum unless otherwise advised in writing.
17.2 Spectrum may require such Disbursements, whether estimated or actual pricing, to be paid for in part or in full before Spectrum incurs any Liability for the Disbursements.
17.3 Spectrum may, from time to time, require the Client to provide their credit card details to be entered online to the relevant supplier of services to facilitate advertisement spend, like Google Ads, for the ongoing payment of their third party fees. Spectrum has no liability to pay any amounts for advertisement spend. Where the Client provides credit card details to Spectrum, Spectrum will ensure that these details are used only for the purpose of entering them online to arrange the ongoing payments to be taken by direct debit and once these credit card details have been entered online such credit card details will be destroyed by Spectrum. The Client must ensure that this credit card always has funds available for the payment of these fees, and if the credit card is declined for any reason whatsoever Spectrum will advise the Client of the same and the Client will be required to provide new credit card details within 48 hours of such communication.
17.4 The Client irrevocably authorises Spectrum to provide their information, including their credit card information, to the third party suppliers for the purpose of this Contract, and the Client indemnifies and releases Spectrum in respect of any claim or liability that arises from any fraud or misuse of their credit card details that occurs through no fault of Periscope.
17.5 The Client must indemnify Spectrum as a result of any failure by the Client to reimburse Spectrum for Disbursements under this clause.
17.6 Spectrum client for any price amendment of any third party and if a third party amends their pricing then the Client must pay this new pricing.
18. Payment
18.1 Spectrum reserves the right to charge the Client for costs incurred resulting from the Client varying its instructions, correcting any errors or omissions referred to in clause 18.2, or requiring Services urgently.
18.2 Spectrum will supply the Services on the basis of the Proposal and Quotation and the information provided by the Client. Spectrum will not be responsible for any errors or omissions resulting wholly or partially from incomplete or unclear instructions or information provided by the Client.
18.3 The Quotation will specify the proposed payment terms between Spectrum and the Client.
18.4 All amounts payable to Spectrum by the Client must be paid in Pound sterling, unless otherwise specified in the invoice issued by Spectrum, in any manner required by Spectrum in writing and in full without set-off on or before the due date for payment.
18.5 Any costs or charges incurred by Periscope in collecting or attempting to collect overdue amounts must be paid by the Client to Spectrum on demand.
18.6 Spectrum reserves the right to charge interest at the rate of 12% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
18.7 Payment will not be taken to occur until all cheques tendered or electronic funds transfer in discharge of amounts owing to Spectrum have been presented or received and cleared in full.
19. Administration Fee
Spectrum reserves the right to charge the Client a reasonable administration fee for issuing any duplicate invoices, statements or other documents requested by the Client, where such document has previously been provided by.
20. Quotations
20.1 Subject to clause 5.3, all Quotations are valid for 30 days from the date of Quotation.
20.2 Spectrum reserves the right to charge the Client for any costs incurred as a result of the Client varying its Quotation or the Contract, correcting any errors or omissions referred to in clause 20.3, or requiring Goods urgently.
20.3 Spectrum will supply the Services on the basis of the Proposal and Quotation (whether written or oral). Spectrum will not be responsible for any errors or omissions in relation to the Services where those errors or omissions result wholly or partially from incomplete or unclear instructions provided by the Client.
20.4 The Quotation will outline any exclusions from the Services.
21. Cancellation
21.1 Spectrum may cancel any Contract any time before Services are provided by giving written notice to the Client. On giving such notice, Spectrum will repay to the Client any sums paid in respect of the Services. Spectrum will not have any other liability in respect of such cancellation.
21.2 Subject to clause 4.2, the Client may only cancel a Contract in the following circumstances:
21.2.1 by providing thirty (30) days notice in writing of such cancellation; or
21.2.2 at any time except with Spectrum’s prior written consent.
21.3 In the event that the Client cancels a Contract otherwise than under clause 4.2:
21.3.1 Spectrum may retain any deposit or other sums paid on account of the Services; and
21.3.2 if payment is not already made in full, the Client will be responsible for any losses incurred by Spectrum in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
21.4 In the event the Client cancels a Contract under clause 4.2, Spectrum will repay to the Client any sums paid in respect of the Services. Spectrum will not have any other liability in respect of such cancellation.
22. Suspension or termination of services by Spectrum
22.1 If the Client makes a default in any payment due to Spectrum, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, Spectrum may in its absolute discretion, suspend supply of any Services to the Client or cancel any Contract with the Client, without prejudice to any other rights of Spectrum.
22.2 No default by the Client or action taken by Spectrum under clause 22.1 will prejudice any rights of Spectrum against the Client whatsoever, including any right to recover any amounts due for Services previously provided by Spectrum to the Client.
23. Confidential Information
23.1 The Recipient agrees in favour of the Provider that during the term of this Contract, and after the expiration of this Contract, that all Confidential Information provided to the Recipient or of which the Recipient becomes aware as a result of this Contract:
23.1.1 will be kept strictly confidential;
23.1.2 will not without the Provider’s consent:
23.1.2.1 be disclosed or divulged to any third party;
23.1.2.2 will not be copied or reproduced;
23.1.2.3 will not be used for any purpose or enterprise other than for the purpose of this Contract;
23.1.3 will be safely and securely stored when not in use; and
23.1.4 will remain the absolute and exclusive property of the Provider.
23.2 This duty of confidence does not extend to Confidential Information:
23.2.1 which is known to the Recipient at the date of this Contract; or
23.2.2 which comes into the public domain after the date of the Contract otherwise than as a result of a breach of the Contract by the Recipient; or
23.2.3 which is disclosed to the Recipient by a third party with the right to do so or which is required by law to be disclosed, provided that the Recipient notify the Provider as soon as such Confidential Information becomes known to the Recipient; or
23.2.4 which is disclosed by the Recipient as required by law.
23.3 The Recipient bears the onus of proof of the matters referred to in clause 23.2.
23.4 The Recipient must bind its Authorised Persons, employees, and permitted agents and subcontractors (if any) who have access to the Confidential Information to comply with all the Recipient’s obligations under this clause.
23.5 The Recipient must indemnify the Provider against all Liabilities in respect of any breach of this clause 23 by the Recipient or any Authorised Persons, employees or permitted agents or subcontractors of the Recipient.
24. Intellectual Property
24.1 Pre-Existing Intellectual Property
Notwithstanding any other clause of this Contract, the ownership of the Intellectual Property Rights in any item which exists prior to the commencement, or is created independently, of this Agreement (Pre-Existing IP) will not be altered transferred or assigned merely by virtue of a party using that item for the purposes of this Contract.
24.2 Licence to use Pre-Existing IP
To the extent that the Pre-Existing IP owned by Periscope is incorporated into the provision of any Services, in accordance with this Contract, unless those items are licensed to the Client under a separate agreement with Periscope, Periscope grants a non-exclusive, world-wide, royalty free licence to the Client to use the Pre-Existing IP, but only to the extent necessary for the purpose of obtaining the full benefit and use of the Services as contemplated by this Contract, and only for the Term unless agreed to otherwise by Periscope.
24.3 Ownership of what is created in the provision of the Services
Unless stated to the contrary in writing, Periscope:
24.3.1 assigns to the Client the Intellectual Property Rights in any materials created as part of the Services (and in all research and reports commissioned by the Client and used to support or provide the Services) and acknowledges that the Client will be the owner of such materials immediately upon their creation;
24.3.2 must ensure that the Intellectual Property Rights in any materials created as part of the Services by any third party on its behalf are assigned to Periscope immediately on their creation, so as to enable Periscope to comply with and give effect to the assignment under this clause;
24.3.3 consents to all acts or omissions by or on behalf of the Client that might otherwise constitute an infringement of moral rights in the materials produced as part of the Services.
This clause 24.3 does not apply to any part of the Services that is Pre-Existing IP.
24.4 Licence to the Client’s Intellectual Property
The Client grants a perpetual, non-exclusive, world-wide, non-transferrable, royalty free license to Periscope (including the right to grant sub-licenses) in respect of:
24.4.1 the Client’s Intellectual Property Rights in or in relation to any information or materials provided by the Client to Periscope for the provision of the Services, but only to the extent necessary for the purpose of providing the Services as contemplated by this Contract; and
24.4.2 the Intellectual Property Rights in or in relation to any information or materials created by Periscope and which is assigned to the Client pursuant to clause 24.3, with the authority to use the information or materials produced in providing services to other clients (provided such use does not infringe the Client’s Intellectual property Rights which are licensed pursuant to clause 24.4.1).
24.5 Warranties by Periscope
Periscope warrants that neither:
24.5.1 the provision of the Services by Periscope; or
24.5.2 the exercise of any rights under clause 24.2,
will infringe any Intellectual Property Rights of any third party.
24.6 Warranties by the Client
The Client warrants that neither:
24.6.1 the provision of the information and materials supplied by the Client or the Client’s Intellectual Property for the Services; or
24.6.2 the exercise of any rights under clause 24.4,
will infringe any Intellectual Property Rights of any third party.
25. Place of Contract
25.1 This Contract is made in the State of South Australia.
25.2 The Client and Company agree that unless otherwise stipulated by Periscope all disputes arising between them shall be submitted to the courts of the State of South Australia and any court competent to hear appeals from those courts of first instance.
26. Dispute Resolution
26.1 Any dispute between the parties arising from the performance of the provisions of this Contract and any invoice for payment issued by Periscope to the Client must be attempted to be settled between the parties by an authorised representative with authority from each party meeting within fourteen (14) days of notification of a dispute in writing from one party to the other party. Such meeting is to take place within the state of South Australia at a place nominated by Periscope.
26.2 If the meeting referred to in clause 26.1 does not result in the settlement of the dispute between Periscope and the Client, the dispute may then be referred to mediation, if agreed by both parties. The mediator is to be appointed by agreement between the parties and in the event that the parties agree to mediate but within seven (7) days of agreeing to such mediation cannot agree to the mediator to be appointed then the mediator is to be appointed by the then current President of the Law Society of South Australia. The costs of any mediation are to be borne equally between the parties.
26.3 If the dispute cannot be settled through mediation, or the parties do not both consent to a mediation, then either party is at liberty to commence legal proceedings.
26.4 During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of the Contract which are not under dispute.
27. Miscellaneous
27.1 A Contract may be altered in writing signed by each party.
27.2 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
27.3 The Client must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
27.4 A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
27.5 A waiver of a provision of or right under a Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
27.6 The failure, delay, relaxation or indulgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
27.7 An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
27.8 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
28. Interpretation
In these Conditions, unless the context otherwise requires:
28.1 headings do not affect interpretation;
28.2 singular includes plural and plural includes singular;
28.3 a reference to a party includes its executors, administrators, successors and permitted assigns;
28.4 a reference to a person includes a partnership, corporation, association, government body and any other entity;
28.5 an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
28.6 an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
28.7 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
28.8 a provision is not construed against a party only because that party drafted it;
28.9 an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions;
28.10 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.
