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1.1 In consideration of the payment of the Fee by the Client, Spark will provide the Services in a professional and timely manner.
1.2 The Client will provide approvals, authorisations, information, passwords, instructions or such other matters as requested by Spark in a timely manner. The Client acknowledges that any failure to do so may cause delivery dates to be delayed or extended.
1.3 Within seven days of the completion of any part of the Services by Spark, and/or written notice that the Services (or any part of the Services) are complete, the Client must provide written notice of any defects, faults or bugs, failing which, the Services will be deemed to have been accepted.
1.4 Client acknowledges that registration of Domain Names is subject to availability, and rules, regulations and policies of ICANN. Where the Domain Name requested by the Client is unavailable, the Client and Spark will use best endeavours to create an alternative that is registerable.
1.5 Client acknowledges that the elements of the Services, as notified by Spark, contracted directly with the third party supplier, with Spark acting as agent on behalf of the Client, in which cases:
(a) Client releases Spark from any claim or action arising from the agreement, or the acts or omissions of the third party supplier; and
(b) Client indemnifies Spark against any loss, cost or expense incurred by Spark as a result of failure by Client to comply with its obligations under the third party agreement.
1.6 Where Client purchases Email Marketing services and provides a database to Spark for the purpose of providing such services, the Client warrants that each addressee in the database has provided their ‘express consent’ to receiving emails from the Client in accordance with the provisions of the Spam Act 2003 (Cth). The Client hereby indemnifies Spark against any loss, cost or penalty incurred by Spark as a result of Client’s breach of this warranty.
2.1 All invoices issued by Spark are payable within seven days. Where invoices are outstanding Spark may:
(a) suspend provision of the Services until invoices are paid in full; and
(b) charge interest on any outstanding amounts, calculated daily at the rate 2% higher than the overdraft rate charged at that time by the bank where Spark maintains its accounts.
2.2 All charges under this Agreement are exclusive of Goods and Services Tax. GST will be added to each invoice and will be payable by the Client.
2.3 Spark may incur incidental costs outside the Purchase Order, including (without limitation) couriers, postage, hard copy mock-ups, burning of distilled files to CDs/DVDs, provided that the approval of the Client will be obtained for any cost in excess of $100. These costs will be added to each invoice and reimbursed by the Client.
3.1 Where the Client wishes to Vary any element or specification in the Purchase Order:
(a) the parties will use best endeavours to confirm the variation in writing (with email being sufficient);
(b) if the Client accepts the varied element or specification, this will be deemed to be acceptance of the variation;
(c) Spark will, at its discretion:
(i) charge an additional Fee for the variation, based on the additional hours or costs arising from the variation charged at its standard rates; or
(ii) negotiate an amendment to the Fee, 50% of which will be payable on agreement.
3.2 For the purpose of this clause Vary means any change, edit, amendment, revision, alteration or addition, excepting only:
(a) corrections of any mistake or fault in the Services caused by Spark; or
(b) minor polishes, corrections or revisions requiring less than 10 minutes per action (or 30 minutes in aggregate).
4.1 Any condition or warranty which would otherwise be implied in this Agreement is excluded. The liability of Spark for any breach of any term, condition or warranty of this agreement, whether express or implied, will be limited to the total amount payable to Spark for the provision of the Services under this Agreement. In particular Spark excludes liability for any loss or damage suffered by Client due to:
(a) any loss or damage to data, materials or software provided to Spark in connection with the provision of the Services (the Client acknowledging that it is solely responsible for maintaining back-up copies); and
(b) delay of delivery, where such delay is due to circumstances beyond the control of Spark (including, without limitation, acts or omissions of couriers)
4.2 Where legislation implies any condition or warranty, and prohibits provisions excluding or modifying the liability of Spark under such condition or warranty, the condition or warranty will be deemed to be included in the Agreement, however the liability of Spark for any breach of such condition or warranty, will be limited, at the option of Spark to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again;
(ii) the payment of the cost of having the services supplied again.
4.3 The Client hereby releases Spark (and its employees, officers, agents and contractors) from liability for:
(a) losses, damages, claims or expenses arising from any defect in or failure of any third party software used by Spark in the course of the Services; and
(b) any loss of profits, indirect losses or consequential loss or damage which may be suffered or arise in respect of the Services or any of the actions or omissions of Spark (or its employees, officers, agents and contractors).
5.1 Upon payment of all Fees and disbursements owing to Spark, all intellectual property rights (including copyright) which may arise in the course of the provision of the Service (“the Rights”) will be assigned by Spark to the Client, subject to Clause 5.2.
5.2 All rights (including copyright) in software (including source or object code), methodologies and other material developed by Spark prior to or otherwise independently of this Agreement will be retained by Spark, notwithstanding that this material may be used in the provision of the Services. Spark hereby grants the Client a non-exclusive licence, in perpetuity, to use this material for the purposes envisaged in the Purchase Order.
5.3 Where any intellectual property rights (including copyright and trade marks) are licensed or assigned from any third party in the course of the provision of the Services, the Client will comply with the terms of any such licence or assignment, as notified to the Client by Spark.
5.4 The Client warrants that any information, works or materials it provides Spark in connection with the provision of the Services will not be defamatory or otherwise infringe copyright or other rights of any third party, and the Client hereby indemnifies Spark against any loss, claim, damages or expense suffered by Spark as a result of any breach of this warranty. Client hereby grants Spark a licence to use such information, works or materials for the purpose of providing the Services.
5.5 Spark may reproduce and publish material (with the exception of confidential information) created in the course of the provision of the Services, for the purpose of securing future engagements and generally marketing itself.
6.1 Both parties agree that they will not disclose, or authorise the disclosure of, the terms of this Agreement, any matter relating to any of the terms of this Agreement or any other confidential information relating to the operations or business of the other party to any other person, except to our advisors or as they may be required to do so by law.
6.2 Notwithstanding Clause 6.1, the Client agrees that Spark may publish and advertise the fact that it has provided the Services for the purpose of securing future engagements and generally marketing itself.
7.1 Either party may terminate this Agreement immediately if the other party:
(a) becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration, bankruptcy or winding up; or
(b) breaches any material term of this Agreement and, having been given 48 hours written notice to rectify that breach, fails to do so.
7.2 If this Agreement is terminated under Clause 7.1, Spark may:
(a) retain any moneys paid by the Client prior to termination;
(b) forward to the Client an invoice for any other fees and expenses under this agreement which have been incurred but not invoiced to the Client;
(c) be regarded as discharged from any further obligations under this Agreement; and
(d) pursue any additional or alternative remedies provided by law.
8.1 This Agreement constitutes the entire agreement between the parties relating to the provision of the Services and cannot be altered except in writing signed by both parties.
8.2 The parties enter this Agreement as independent contractors and not as employer and employee, partners or joint venturers, or in any other capacity.
8.3 This Agreement will be governed by and construed in accordance with the laws of New South Wales and the parties submit to the jurisdiction of the courts of New South Wales.