Terms of Service

1. Definitions and interpretation

Definitions

1.1 The following definitions apply in this Agreement unless the context requires otherwise:

Agreement means these Terms of Service together with the Client approved Engagement Agreement.

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

Client means the Client name as set out in the Engagement Agreement including, directors and employees, but excluding all affiliated companies.

Client Content means artwork, drawings, photography, text, graphics, audio and/or video files and other works of authorship created by or on behalf of KNOWN ASSOCIATES specifically and exclusively for the Client pursuant to the terms of the Engagement Agreement which distinguishes the Event from other works which KNOWN ASSOCIATES has developed for itself or other clients, but will not include any KNOWN ASSOCIATES owned intellectual property or KNOWN ASSOCIATES Working Files.

Client Materials means materials, talent, images, audio and/or video files, that the Client owns or is otherwise authorised to use.

Change Request means a written document or email by which the Client requests, or KNOWN ASSOCIATES suggests, changes, modifications or amendments to an existing Engagement Agreement.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Confidential Information means any information:

(a) Not generally known to the public;

(b) Relating to each party’s business in any form, including, but not limited to, all information that is produced or developed under this Agreement and/or in connection with the Engagement Agreement, regardless of whether such information or material is marked “Confidential” or “Proprietary” or by another similar marking;

(c) Information known by a party considered to be confidential and proprietary by the other party or from all relevant circumstances should reasonably be assumed by the Client or KNOWN ASSOCIATES to be confidential and proprietary to the other, including without limitation to:

(i) Trade secrets;

(ii) Names and contact details of invitees or performers;

(iii) Financial matters pertaining to this Agreement

(d) Information set forth above which the Client or KNOWN ASSOCIATES obtains from another party and which the Client or KNOWN ASSOCIATES designates as Confidential Information.

Corporations Act means the Corporations Act 2001 (Cth).

Engagement Agreement – means all documents approved by the Client, detailing the scope of the engagement with KNOWN ASSOCIATES, including any Event Scope of Services and or Marketing Scope of Services, and any subsequent modifications or changes by means of additions to these documents, and including these Terms of Service.

Deliverables means all of the components set forth in the Engagement Agreement and which KNOWN ASSOCIATES is expected to deliver to the Client, excluding KNOWN ASSOCIATES Working Files.

Event Scope of Services means an event planning and management quotation and any supporting documents or attachments which defines and sets out the Deliverables required for planning, creating and managing an event for the Client.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

GST has the same meaning given to that expression in the GST Law.

GST Law has the same meaning given to that expression in the GST Act.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of tax;

(b) interest and other amounts payable to third parties;

(c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and

(d) all amounts paid in settlement of any Claim.

KNOWN ASSOCIATES means Known Associates Australia Pty Ltd (ABN 76 638 861 784), and Known Associates Investments Pty Ltd (ABN 56 626 928 774) trading as Known Associates, and includes all affiliated companies, directors, officers, employees, contractors, third-party service providers and permitted assigns.

KNOWN ASSOCIATES Working Files means photography, video, design or related software files, including and not limited to RAW footage, InDesign, Illustrator, Photoshops files, and any data and/or tools created, acquired or licensed by or to KNOWN ASSOCIATES either before or during the course of performing the Services for Client, and utilised in any manner by KNOWN ASSOCIATES in performing the Services, and which are generally applicable to photography, video production, graphic design and which are not specifically created, acquired or licensed by KNOWN ASSOCIATES exclusively for the Client pursuant to the terms of the Scope of Services.

Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.

Marketing Scope of Services means any scoping quotation, supporting documents or attachments, approved by the client and forming the Engagement Agreement, which defines and sets out the Deliverables required for KNOWN ASSOCIATES to deliver a marketing campaign for the the Client.

Non-Solicitation Period means the period of twelve (12) months following the expiration of the Term.

RAW Footage means master footage recorded by KNOWN ASSOCIATES as part of the provision of Services.

Relevant IP means all Intellectual Property Rights that KNOWN ASSOCIATES makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or KNOWN ASSOCIATES’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:

(a) using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;

(b) in the course of, as a consequence of, or in relation to, the provision of the Services by KNOWN ASSOCIATES and/or the performance (whether proper or improper) of KNOWN ASSOCIATES’s duties and responsibilities to the Client under this Agreement or otherwise;

(c) as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or

(d) in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.

Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

Scope of Services means any Event Scope of Services and or Marketing Scope of Services prepared for and approved by the Client.

Services means the services to be provided by KNOWN ASSOCIATES to the Client as set forth in a Scope of Services.

Third Party Works means any third-party design, talent, production, “off-the-shelf” software, Client Materials, or other materials incorporated by KNOWN ASSOCIATES into a Deliverable as a component of the Deliverable.

Trademarks means the trademarks, service marks, trade names, trade dress, URLs, domain names, and other proprietary designs, and logos used or intended to be used by each party to identify or market its goods and/or services, as set forth in the Scope of Services.

Interpretation

1.2 The following rules of interpretation apply in this Agreement unless the context requires otherwise:

(a) headings in this Agreement are for convenience only and do not affect its interpretation or construction;

(b) no rule of construction applies to the disadvantage of a party because this Agreement is prepared by (or on behalf of) that party;

(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this Agreement or Scope of Services;

(e) in each schedule to this Agreement, a reference to a paragraph is a reference to a paragraph in that schedule;

(f) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(g) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(h) a reference to writing includes any communication sent by post, facsimile or email;

(i) a reference to time refers to time in Perth, Western Australia and time is of the essence;

(j) all monetary amounts are in Australian currency;

(k) a reference to a “liability” includes a present, prospective, future or contingent liability;

(l) the word “month” means calendar month and the word “year” means 12 calendar months;

(m) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;

(n) a reference to a “party” is a reference to a party to this Agreement and a reference to a “third party” is a reference to a person that is not a party to this Agreement;

(o) words in the singular include the plural and vice versa; and

(p) a reference to one gender includes a reference to the other genders.

2. Agreement

2.1 All and any business undertaken by KNOWN ASSOCIATES is transacted subject to KNOWN ASSOCIATES Terms of Service and in the Engagement Agreement prepared by KNOWN ASSOCIATES and approved by the Client.

2.2 In the event of any inconsistency between the Engagement Agreement and any other elements of this Agreement, the Engagement Agreement shall prevail.

2.3 The Agreement constitutes the entire understanding and agreement between KNOWN ASSOCIATES and the Client for the Services, and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect to this Agreement.

2.4 In the event of any conflict between the Agreement and any other terms and conditions, the former shall prevail unless otherwise expressly agreed by KNOWN ASSOCIATES in writing.

2.5 Any amendments to the Agreement must be in writing and signed by an authorised representative of KNOWN ASSOCIATES.

3. Services

Performance of Services

3.1 In consideration of payment by the Client of the fees set forth in the executed Engagement Agreement, KNOWN ASSOCIATES will provide the Services and Deliverables set forth in the executed Scope of Services. Modifications or changes to a Scope of Services will not be effective, and KNOWN ASSOCIATES will have no obligation to perform any Services outside the scope of a Scope of Services unless agreed to by the parties, as evidenced by a Change Request or a new Scope of Services executed by both parties. The parties acknowledge and agree that they will discuss in good faith any adjustments to the fees required as a result of any variation to the Scope of Services.

3.2 KNOWN ASSOCIATES shall provide the Services with reasonable skill and care, to a standard to be reasonably expected from a competent and professional supplier of event management, communications, graphic design or public relations services.

3.3 KNOWN ASSOCIATES reserves the right to refuse to carry out the Services if, in KNOWN ASSOCIATES’ sole opinion, they may become subject to a claim by a third party for slander, libel or any other legal claim. KNOWN ASSOCIATES also reserves the right to refuse to carry out the Services if, in KNOWN ASSOCIATES’ sole opinion, the Client or any parent company, subsidiary or affiliate of the Client makes any libelous or slanderous statement against KNOWN ASSOCIATES.

3.4 KNOWN ASSOCIATES may correct any typographical or other errors or omissions in any media release, promotional literature, or other document relating to the provision of the Services without any liability to the Client.

3.5 KNOWN ASSOCIATES may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.

3.6 GRAPHIC DESIGN included in the proposal includes two rounds of revisions per piece of design. Any subsequent changes will be charged at $125p/h.

Client’s Obligations

3.7 The Client will cooperate with KNOWN ASSOCIATES in performance of the Services and will be responsible for delivering to KNOWN ASSOCIATES sufficient Client Materials and Client Representatives to enable KNOWN ASSOCIATES to perform the Services as detailed and scheduled in the Scope of Services.

Third Party Contractors

3.8 KNOWN ASSOCIATES may employ the services of its affiliates or of third-party contractors to provide any Services detailed in any Scope of Services; provided, that KNOWN ASSOCIATES will remain responsible for the performance of each Scope of Services. If KNOWN ASSOCIATES chooses to have certain Services performed by a subcontractor and/or affiliate, the Client will not contact or in any way interact directly with such subcontractor and/or affiliate regarding the Services without KNOWN ASSOCIATES’s prior written consent.

4. Delivery, Format and Approval of Deliverables

Delivery and Format

4.1 KNOWN ASSOCIATES will use commercially reasonable efforts to provide the Deliverables in accordance with the schedule set forth in the Scope of Services provided that:

(i) this Agreement has not been terminated prior thereto, and;

(ii) there has not been an unremedied default by the Client.

Limitations

4.2 Notwithstanding any other provision of this Agreement, and except as provided in a properly executed Engagement Agreement and or a Scope of Services , KNOWN ASSOCIATES will not be responsible for delays or non-performance of Services by KNOWN ASSOCIATES due to unforeseeable events that are beyond KNOWN ASSOCIATES’s control.

Client Delays

4.3 If the Client has delayed KNOWN ASSOCIATES’ performance for any reason, including without limiting the generality of the forgoing;

(a) Failure to cooperate with or respond to a reasonable request of KNOWN ASSOCIATES;

(b) Failure to timely provide the Client Materials to KNOWN ASSOCIATES;

(d) Requests from the Client for Change Requests,

then the applicable schedule will be deemed modified to allow KNOWN ASSOCIATES to provide Deliverables within a reasonable period from the date specified in the original Scope of Services, in regard to the Client’s actions or omissions.

5. Payment and Cancellation

Service Fee Payment

5.1 In consideration of the Services provided and the rights granted by KNOWN ASSOCIATES to the Client under this Agreement, the Client will pay KNOWN ASSOCIATES the fees as set forth in the Engagement Agreeent and subsequent invoice(s). If the Client fails to make timely payments, KNOWN ASSOCIATES may suspend the performance of Services and/or terminate the applicable Scope of Services and/or this Agreement as provided in clause 12.

Reimbursable Expenses

5.2 The Client will reimburse KNOWN ASSOCIATES for out-of-pocket costs and expenses incurred by KNOWN ASSOCIATES in performing the Services under this Agreement, including, but not limited to, the expenses relating to travel and office expenses incurred on behalf of Client, which have not been expressly stated and costed in the Scope of Services.

Taxes

5.3 The Client will reimburse KNOWN ASSOCIATES for all sales, use, transfer, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by KNOWN ASSOCIATES under this Agreement, excluding income taxes which may be levied against KNOWN ASSOCIATES.

Cancellation

5.4

(a) This clause applies to the following where the Client

I. cancels an entire event as set out in the Engagement Agreement,

II. cancels partial use of the facilities for an event as set out in the Engagement Agreement, or

III. reduces the duration of the event as a result of which the contracted value is reduced.

(b) Should an event be cancelled by the Client, the cancellation charges as set out in the Engagement Agreement will apply and extend to the total charge which includes: any required accommodation, venue hire, equipment, pre-booked food and beverage charges. In addition, the Client will settle any third party charges incurred by KNOWN ASSOCIATES on behalf of the client since the last payment.

(c) All cancellations must be received in writing from the client and will be deemed to take effect from the date of receipt.

(d) Any postponements of confirmed and contracted Services will be considered as a cancellation in accordance with this clause. However, provided the revised event date is agreed by both parties and takes place within 90 working days of the original event date, payments received by KNOWN ASSOCIATES from the client shall form a credit towards the future event. The Client shall, in that eventuality, be liable for any and all costs or expenses incurred by KNOWN ASSOCIATES as a direct result of the postponement.

6. Ownership, Use and License

Ownership

6.1 Unless otherwise included as part of the deliverables the client has paid for, KNOWN ASSOCIATES retains all rights and ownership, to the components created the course of and as part of the performance of Services in this Agreement that KNOWN ASSOCIATES conceive(s), develop(s) or reduce(s) to practice all original works of authorship including photography, video, literary or other works, information, texts, graphics, imagery, documents, materials, tools, icons, audio, visual, symbols and characters whether or not registrable under copyright or similar laws or other Intellectual Property Rights which have been created by KNOWN ASSOCIATES in the course of and as part of the performance of the Services and which include both KNOWN ASSOCIATES Working Files and the Deliverables provided to the Client.

Use

6.2 The Client agrees and acknowledges that all components of the Deliverables which have been created by KNOWN ASSOCIATES and provided to the Client solely for the purpose of the Deliverables shall be for the Client’s use only as set out in the Scope of Services, and that the Client’s use of such components of the Deliverables for any other purpose are subject to KNOWN ASSOCIATES granting the Client a license to use such components of the Deliverables for that other purpose or for any usage outside the Scope of Service.

License to the Client

6.3 Subject to the terms and conditions of this Agreement, KNOWN ASSOCIATES hereby grants to the Client a non-exclusive, royalty free, irrevocable license to use and reproduce Client Content, to the extent that they are:

(a) Required for operation of the Deliverables in its intended use under this Agreement; and

(b) Used in the territory as set out in the Engagement Agreement.

License to Client Materials

6.4 The Client hereby grants to KNOWN ASSOCIATES a royalty-free, non-exclusive, license to use, reproduce, modify, transmit, digitise, adapt and publicly display the Client Materials solely as necessary to perform its obligations under this Agreement.

Third Party Works

6.5 To the extent the Client elects to include Third Party Works as a component of the Deliverables, or to the extent Third Party Works are otherwise required to maintain the audio or visual content, design or functionality of the Deliverables, the Client will acquire, and if applicable, pay for, any licenses to such Third Party Works. Such licenses will include all rights necessary for KNOWN ASSOCIATES to modify or otherwise utilise the Third Party Works in a manner consistent with KNOWN ASSOCIATES’s obligations under this Agreement. The Client hereby grants to KNOWN ASSOCIATES a, nonexclusive and royalty free to use, modify, reproduce and publicly display all such Third Party Works contemplated by this clause solely as necessary to perform its obligations under this Agreement.

Reservation of Rights

6.6 Notwithstanding any other provision of this Agreement, the Client will obtain no right, title or interest in or to the Deliverables unless and until the Client pays the applicable fees in accordance with clause 5.1.

7. GST

Definitions regarding GST

7.1 In this clause 7:

(a) expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;

(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 7; and

(c) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 7.

Consideration is exclusive of GST

7.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this Agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 7.

8. Trademarks and Credit

Use of Trademarks and Materials Produced

8.1 The Client hereby expressly grants KNOWN ASSOCIATES the right to use and reproduce the Client’s Trademarks, images or videos of the Deliverables

(a) To create the Deliverables, as specified the Scope of Services; or

(b) In KNOWN ASSOCIATES’s marketing materials, advertisements, press releases, promotional brochures, presentation portfolios, award entries, KNOWN ASSOCIATES’s web site, or in any media now known or later developed, solely for the purpose of identifying the Client as a client and describing KNOWN ASSOCIATES’s Services provided to the Client.

Trademark Use by the Client

8.2 Subject to the terms and conditions of this Agreement, KNOWN ASSOCIATES hereby grants to the Client the right to use the Trademarks of KNOWN ASSOCIATES solely for the purpose of providing KNOWN ASSOCIATES credit for the production of the Deliverables.

9. Representations, Warranties and Indemnification

Duties

9.1 KNOWN ASSOCIATES represents and warrants that:

(a) It is capable of performing the Services with reasonable care and skill to the best of its knowledge and expertise;

(b) It provides the Deliverables as specified in the Scope of Services and will use all reasonable endeavours to deliver the same in a timely and professional manner using appropriately experienced and qualified personnel;

Liabilities

9.2

(a) KNOWN ASSOCIATES’s liability to the Client is limited at KNOWN ASSOCIATES’ option to either the resupply of the Services or the payment of the cost of having the Services resupplied.

(b) The Client acknowledges and agrees if in an event, provided as part of the Deliverables, the activities that the Client undertakes may be inherently dangerous, although all guests are fully supervised throughout, KNOWN ASSOCIATES shall not be liable for any damage, loss, delay or expenses caused to the Client or invitees or any other persons attending the event except insofar as it results from the negligence of KNOWN ASSOCIATES or breach of contract. Note that during the event for certain activities it may be necessary to request individuals to sign a liability waiver on the day of the event (although the same does not purport to exclude liability for damage to personal property of the Client or property damage caused to the Clients property or personal injury arising as a result of the negligence of KNOWN ASSOCIATES), in which instances KNOWN ASSOCIATES agrees to indemnify and hold the Client harmless against all such claims.

(c) Children must be supervised by an adult at all time and KNOWN ASSOCIATES is not responsible for children attending an event, provided as part of the Deliverales.

(d) KNOWN ASSOCIATES is not liable for any delay in providing the services if the delay or failure results from the Client’s act or omission or from a breach either intentional or inadvertent, by the Client in relation to its obligations under this Agreement.

Indemnity

9.3 To the best of KNOWN ASSOCIATES knowledge, the Deliverables as delivered do not infringe Intellectual Property Rights of any other person or entity. Notwithstanding the foregoing, KNOWN ASSOCIATES will not be deemed to have breached the warranties contained in this clause to the extent that the Client, its employees, agents, independent contractors or assigns have modified the Deliverables in any manner, or incorporates third-party materials through the use of Third Party Works or Client Materials provided by the Client. The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold KNOWN ASSOCIATES harmless from and against, any and all Losses that may be suffered by KNOWN ASSOCIATES and which arise, directly or indirectly, in connection with any breach of this Agreement by the Client and/or any negligent or other tortious conduct in the provision of the Services.

Indemnities continuing

9.4 Each indemnity contained in this Agreement is an additional, separate, independent and continuing obligation that survives the termination of this Agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

9.5 To the maximum extent permitted by law, KNOWN ASSOCIATES and its Representatives expressly:

(a) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against KNOWN ASSOCIATES under this Agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at KNOWN ASSOCIATES's sole discretion):

(i) re-supply of the Services;

(ii) payment of the costs of supply of the Services by a third party; or

(iii) the refund of any amounts paid by the Client to KNOWN ASSOCIATES under this Agreement in respect to the Services,

even if KNOWN ASSOCIATES has been advised of the possibility of such Losses, and the Client acknowledges and agrees that KNOWN ASSOCIATES holds the benefit of this clause 9.5 for itself and as agent and trustee for and on behalf of each of its Representatives.

(c) (Losses) Notwithstanding any other provision of this Agreement, KNOWN ASSOCIATES will not be liable under this Agreement or otherwise for any form of indirect, consequential, exemplary, special, incidental, or punitive damages, even if KNOWN ASSOCIATES has been advised of the possibility of such damages. Notwithstanding any other provision of this agreement, KNOWN ASSOCIATES’s liability for any reason and upon any cause of action will be limited to the fees due to KNOWN ASSOCIATES from the Client under this Agreement. This limitation applies to all causes of action in the aggregate, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any other tort.

The Client’s Non-Infringement Warranty and Indemnity

9.6 The Client represents and warrants that;

(a) The Client owns or has the right to use and to sublicense to KNOWN ASSOCIATES, as specified in clauses 6.3 and 6.4, all Client Materials, Third Party Works, and any Trademarks supplied by The Client, including the right to publicly display, broadcast, publish, and distribute the Client Materials at the Event and to authorise KNOWN ASSOCIATES to use the same in accordance with this Agreement;

(b) The Client is authorised to use the Client Materials in connection with the advertising, promotion and exploitation of the Event as provided herein;

(c) The use by KNOWN ASSOCIATES of any Client Materials or Third Party Works in accordance with this Agreement will not violate the Intellectual Property Rights of any third party; and;

(d) The Client agrees to defend, indemnify, and hold harmless KNOWN ASSOCIATES, its parent, subsidiaries, and affiliates, and each of their respective directors, officers, employees and agents from and against any claim, demand, cause of action, debt or liability (including reasonable legal fees) arising out of the breach of Clause 6.5 of this Agreement.

Australian Consumer Law

9.7 Notwithstanding any other term of this Agreement, if any goods or services supplied by KNOWN ASSOCIATES under this Agreement are held to be subject to the mandatory conditions and warranties of the Competition Consumer Act 2010 (Cth), KNOWN ASSOCIATES’s liability for breach of any such condition or warranty will be limited and subject to KNOWN ASSOCIATES’s option to:

(a) In the case of goods, anyone or more of the following:

(i) The replacement or equivalent replacement;

(ii) The repair;

(iii) The payment of the cost of replacing the goods or of acquiring equivalent goods;

(iv) The payment of the costs repaired.

(b) In the case of services:

(i) The supply of the service again; or

(ii) The payment of the cost of having the services supplied again.

Force majeure

9.8 To the maximum extent permitted by law, KNOWN ASSOCIATES and its representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of KNOWN ASSOCIATES under this Agreement where such damage or delay is caused by circumstances beyond the reasonable control of KNOWN ASSOCIATES (including but without limiting the generality of the foregoing, any Act of God, fire, flood, explosion, lightning, windstorm, earthquake, failure of machinery or equipment, shortage of materials, discontinuation of power supply, court order or governmental interference, civil commotion, riot, war, strike, labour disturbances or transportation difficulties) and KNOWN ASSOCIATES shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that KNOWN ASSOCIATES holds the benefit of this clause 9.8 for itself and as agent and trustee for and on behalf of each of its representatives.

10. Confidential Information

10.1 The parties agree to keep the Confidential Information of the other party confidential and to use such information only for the purposes of performance of their respective obligations under this Agreement.

10.2 A party must act with reasonable care to:

(a) not directly or indirectly reveal, report, publish or disclose any Confidential Information of the other party to any person, firm or corporation not expressly authorised by the owner;

(b) limit the disclosure of the Confidential Information within its own organisation only to those if its officers and employees to whom such disclosure is strictly necessary for the purposes of this Agreement and who have been made aware of its confidential nature and have agreed to keep the information confidential in accordance with the terms of this clause 10; and

10.3 The obligations of confidentiality in clause 10 will not apply to information which:

(a) is generally available in the public domain except where such availability is as a result of a breach of this Agreement;

(b) was known prior to the disclosure of the information by the other party;

(c) was already in the Client or KNOWN ASSOCIATES’ possession as evidenced by written documents prior to the disclosure thereof by the other party; or

(d) is required to be disclosed by an applicable law or court order.

10.4 The obligations imposed under this clause 10 will survive the termination of this Agreement.

11. Non-disparagement

11.1 On and from the date of this Agreement, each party must not:

(a) make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any representative of any other party; or

(b) cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so.

12. Term and Termination

Term

12.1 This Agreement shall start upon the acceptance of the Engagement Agreement by the Client and conclude upon the delivery of the final Deliverables and final payment by the Client of any outstanding amounts due pursuant to this Agreement, unless the Agreement is terminated earlier as provided in this clause 12.

Termination with cause

12.2 In addition to any other right or remedy provided by this Agreement or by law, each party will be entitled to terminate this Agreement and/or Scope of Services immediately by providing written notice to the other party if:

(a) the other party fails to pay any moneys when due within 30 days;

(b) the other party otherwise commits a breach of this Agreement and fails to remedy the breach within 14 days of receiving a written notice from the first party requiring the other party to remedy the breach; or

(c) the other party is insolvent, bankrupt, has entered into any form of administration, receivership or liquidation, whether voluntary or involuntary, formal or otherwise or is unable to pay its debts as and when they fall due.

(d) there is a Force Majeure event pursuant to Clause 9.8

Termination without cause

12.3 Subject to the remaining provisions of this clause 12, either party may terminate this Agreement by giving to the other party a written notice of termination of not less than the notice period stated in the Engagement Agreement (“the Notice Period”), such Notice Period to expire at any time after the Term. In the event that the Engagement Agreement does not state a Notice Period, either party shall be required to give the other party at least 90 days written notice of its intention to terminate the Agreement.

Effect of termination

12.4 If this Agreement is terminated by KNOWN ASSOCIATES for cause, any licence granted to the Client under clause 6 will be terminated, except as set forth below. In the event of such termination the Client will remain liable to pay KNOWN ASSOCIATES any outstanding amounts invoiced or that have been incurred by KNOWN ASSOCIATES, since the Client’s last payment, in providing the Services prior to termination.

Accrued rights

12.5 Termination of this Agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

12.6 The obligations of KNOWN ASSOCIATES under clause 1 (Definitions), clause 5 (Payment), clause 6.1 (Ownership), clause 8 (Trademarks), clause 12 (Term and Termination). clause 13 (Non-Solicitation), clause 14 (Intellectual Property), clause 15 (Notices), and clause 16 (General) will survive the termination of this Agreement. Licenses as specified in clause 6 above will also survive the Agreement.

13. Non-solicitation

13.1 During KNOWN ASSOCIATES' engagement with the Client under this Agreement and for then Non-solicitation Period (i.e. twelve (12) months thereafter), the Client must not, without KNOWN ASSOCIATES' prior written consent (which KNOWN ASSOCIATES may withhold or delay in its absolute discretion), directly or indirectly:

(a) (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between KNOWN ASSOCIATES and any of KNOWN ASSOCIATES' suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or

(b) (non-solicitation of staff) deal with, induce, encourage or solicit any of KNOWN ASSOCIATES's officers, employees, contractors or agents to cease their employment, engagement or agency with KNOWN ASSOCIATES.

(c) (non-solicitation of previous staff) deal with, induce, encourage or solicit any of KNOWN ASSOCIATES's officers, employees, contractors or agents in the past twelve (12) months prior to their initial contact with Client.

14. Intellectual Property

14.1 In accordance with clause 6.1, the parties agree that all Relevant IP will be owned by, and vest in, KNOWN ASSOCIATES.

Assignment

14.2 The Client hereby assigns, transfers and conveys to KNOWN ASSOCIATES all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in KNOWN ASSOCIATES on and from creation.

Permitted use

14.3 The Client may not use or reproduce any Relevant IP or any other Intellectual Property Rights of KNOWN ASSOCIATES or any of KNOWN ASSOCIATES’ customers, clients or suppliers without KNOWN ASSOCIATES’ prior written approval, except in the proper provision of the Services and performance of its duties under this Agreement.

Disclosure of Relevant IP

14.4 The Client must immediately disclose in writing to KNOWN ASSOCIATES any Intellectual Property Rights that the Client makes, develops or conceives that might reasonably be regarded as Relevant IP.

Moral rights

14.5 The Client consents to the doing of any acts, or making of any omissions, by KNOWN ASSOCIATES or any of their respective employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:

(a) not naming the Client as the author of a Work; or

(b) amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Client is not named as the author of the amended or modified Work, whether those acts or omissions occur before, on or after the date of this Agreement. The Client acknowledges that its consent pursuant to this clause 14.5 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.

Non-infringement

14.6 The Client must not infringe any rights in any Intellectual Property of any third parties and must not, without proper authorisation, make any use of, or bring into KNOWN ASSOCIATES’s computer systems or onto KNOWN ASSOCIATES’s premises, any Intellectual Property of any third party.

15. Notices

15.1 Any notice, consent or agreement given in connection with this agreement must be in writing and may be given by an authorised representative of the sender.

15.2 Notice is deemed to be received by a party:

(a) when left at that party's address.

(b) if sent by pre-paid mail, three Business Days after posting or five Business Days in the case of a notice sent to or from a place outside Australia: and

15.3 At the date of this agreement, the last notified address is the address as noted on the KNOWN ASSOCIATES invoice to the client. A party may change its address for service by giving at least 1 Business Days’ notice to the other party.

16. General

Third parties

16.1 This Agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Costs

16.2 All costs and expenses in connection with the negotiation, preparation and execution of this Agreement, and any other agreements or documents entered into or signed pursuant to this Agreement, will be borne by the party that incurred the costs.

Severability

16.3 Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.

Dispute Resolution

16.4 If a dispute arises between the parties in connection with this Agreement, the parties undertake in good faith to use all reasonable endeavours to settle the dispute by way of good faith negotiation (including escalating the dispute to executive level), failing which, the parties agree to use all reasonable endeavours to settle the dispute by way of mediation by an independently appointed mediator as agreed between the parties and if they cannot agree on a mediator within a further 10 Business Days then the appointment of a mediator shall vest in the President of the Law Society of Western Australia or his/her nominee) with such mediation to be conducted in accordance with the rules laid down by the Resolution Institute.

Governing law and jurisdiction

16.5 This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or Claims) are governed by, and shall be construed in accordance with, the laws of Western Australia

16.6 The parties irrevocably agree that the courts of Western Australia have exclusive jurisdiction to settle any dispute or Claim that arises out of, or in connection with, this Agreement or its subject matter or formation (including non-contractual disputes or Claims).

UPDATED: MARCH 2023