General Terms and Conditions

It is agreed

1. Definitions and Interpretation

In this agreement, unless otherwise indicated by the context:

(a) Businesses means all businesses owned and operated by the You and all subsidiaries of the You;

(b) Business Day means a day, not being a Saturday, Sunday or public holiday in Sydney;

(c) Commencement Date means the date upon which this agreement and the Marketing Proposal Agreement are signed by You.

(d) Confidential Information means know how and techniques in respect of the Businesses, Group books and records, business strategies and methodologies, tendering processes and methodology, existing and proposed client and supplier details, details relating to and included in tendering documents submitted or proposed to be submitted by the Group and any other matter that can reasonably be inferred as being confidential to the Group;

(e) Corporations Act means the Corporations Act 2001 (Cth);

(f) Marketing Proposal Agreement means the agreement signed in conjunction with these terms and conditions for the provision by Paras Media of marketing services.

(g) Paras Media means PARASMEDIA Pty Ltd.

(h) Services Fee means the fee payable by the You to Paras Media in accordance with the Marketing Proposal Agreement.

(i) Services means those services set out the Marketing Proposal Agreement.

(j) Term means the period from the Commencement Date until 12 months after the Commencement Date unless terminated earlier in accordance with the terms of this agreement;

(k) You means the party entering into the Marketing Proposal Agreement.

1.2 In this agreement, unless otherwise indicated by the context:

(a) words importing the singular include the plural and vice versa;

(b) headings are for convenience only and do not affect interpretation of this agreement;

(c) a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this agreement;

(d) where any word or phrase is given a definite meaning in this agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;

(e) a provision must not be construed against a party only because that party prepared it;

(f) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;

(g) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;

(h) a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;

(i) unless otherwise specified, a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally;

(k) a period of time dating from a given day or the day of an act or event is to be calculated exclusive of that day;

(l) if an act required to be done under this agreement on or by a given day is done after 5.30 pm on that day, it is taken to be done on the following day;

(m) where any act is required by this agreement to be done on a given day and that day is not a Business Day then the act is required to be done on the next following Business Day; and

(o) a reference to a body, whether statutory or not;

       (i) which ceases to exist; or

       (ii) whose powers or functions are transferred to another body;

is a reference to the body which replaces it or which substantially succeeds to its powers or functions.

2. Appointment

2.1 You appoint Paras Media to provide the Services for the Term in accordance with the terms and conditions of this agreement and the Marketing Proposal Agreement and Paras Media accepts such appointment.

2.2 These terms and conditions form part of the Marketing Proposal Agreement.

3. Duties of Paras Media

3.1 Paras Media agrees to provide the Services to the You.

3.2 In performing the Services, the Paras Media covenants with the You that Paras Media will:

(a) exercise and perform the Services to the best of its skill and knowledge;

(b) carry out the Services in a proper, efficient, diligent, faithful and competent manner;

(c) comply with the confidentiality provisions under this agreement.

3.3 The legal relationship between You and Paras Media is that of principal and independent contractor.

4. Services Fee

4.1 You agree to pay Paras Media the Services Fee as stipulated in the Marketing Proposal Agreement.

4.2 Where the Services Fee is attributable to a monthly period and payable monthly, then it is payable monthly in advance on the date of commencement of the agreement.

5. Term

5.1 The agreement shall continue for the duration of the Term unless terminated earlier in accordance with clause 6.

6. Termination

6.1 Paras Media may terminate this Agreement at its absolute discretion and for any reason whatsoever by providing 14 days’ notice to you.

The agreement will terminate at the expiration of the Term only if written notice of termination is provided by You at least 30 days prior to the expiration of the Term. The agreement will otherwise automatically extend for a further term of 12 months at the expiration of the Term.

7. Non-Disclosure and Confidentiality

(a) Paras Media agrees and must procure that its related entities and employees and agents agree that:

(b) it shall keep confidential all Confidential Information;

(c) it shall use Confidential Information only for the purposes of and to the extent required to satisfy its obligations under this agreement;

       (i) it may disclose Confidential Information only to those of its personnel or agents who:

       (ii) are engaged in the performance of the Services and have a need to know (and only to the extent that each has a need to know);

       (iii) are aware that Confidential Information must be kept confidential; and

(d) have agreed to comply with Paras Media’s obligations of confidentiality as if he/she or they were a party to this undertaking;

its right to use the Confidential Information will cease on the expiry or termination of this agreement (whichever occurs first).

7.2 on cessation of Paras Media’s right to use Confidential Information, Paras Media must immediately, at your option either:

(a) return to the You; or

(b) destroy and certify in writing to the You the destruction of all Confidential Information in Paras Media’s possession or control.

8. Resolution of disputes

8.1 If at any time during the Term of this agreement any doubt, difference, question or dispute (Dispute) shall arise in relation to a matter between any or all of the parties in relation to this agreement (except for any proceedings for injunctive relief to which this clause 10 does not apply) any party may give notice to the other parties within 14 days of the Dispute occurring, such notice is to be in writing and adequately identify and provide details of the Dispute and desired outcomes.

8.2 The parties must confer and consult with each other to endeavour to settle the Dispute.

8.3 If the Dispute is not settled within 14 days of the receipt of the notice of the Dispute then any party may give notice to the other parties that the matter be referred to formal mediation by a mediator and at a venue agreed to between the parties or, failing agreement within seven days of the notice, by a mediator and at a venue appointed by the President of the Law Institute of Victoria or his or her nominee (the Mediator) and:

(a) the mediation must commence within 5 days from the appointment of the Mediator;

(b) the mediation is to take place by such procedures and at such times as the parties and the Mediator may agree; and

(c) the parties are to agree the costs and expenses of the mediation with the Mediator and the costs and expenses of the mediation shall be borne equally by the parties.

8.4 For the avoidance of doubt, the provisions of this clause 10 must be complied with before a party can refer a matter to the courts except where the party seeks urgent injunctive relief.

9. Warranties and representations

9.1 Paras Media warrants to the You that as at the date of this agreement and during the Term:

(a) Paras Media has the necessary skills and know-how to provide the Services;

(b) the Services will be provided with due care and skill and in a timely and diligent manner and any materials supplied in connection with the Services, including any media used for the storage of material in electronic form will be fit for the purpose for which they are supplied;

(c) Paras Media will comply with all applicable laws, regulations and standards in providing the Services (including without limitation, all applicable national, state and local environmental, health and safety laws and regulations) and in particular Paras Media will comply with the your safety, access, security, procedural and policy requirements, including your policies and procedures. Paras Media must also comply with any provisions, representations or agreements, or contractual clauses required to be included or incorporated into this agreement by reference or operation of law;

(d) all statements and representations made by Paras Media or on Paras Media’s behalf to You are, to the best of Paras Media’s knowledge, information and belief, true and accurate, and Paras Media will advise You of any fact, matter or circumstance of which Paras Media may become aware which would render any such statement or representation false or misleading or likely to mislead; and

(e) Paras Media has full capacity and holds all necessary licences, permits and consents to enter into and perform this agreement.

9.2 You acknowledges and agrees that you shall not be entitled to bring a claim in respect of any warranty provided by the Paras Media under clause 9.1:

(a) where the warranty claim is as a result of or in consequence of any voluntary act, omission or negligence of You;

(b) unless You have given written notice to Paras Media setting out specific details of the alleged warranty claim;

(c) where the warranty claim is for an amount less than $50,000 per claim (or $100,000 if claims are aggregated); or

(d) where the warranty claim is made more than 6 months after the end of the Term.

10. Limitation of Liability

10.1 In no event is the total aggregate liability of the Paras Media for any and all claims under or relating to this agreement to exceed an amount equal to the Services Fee or where the Paras Media and/or its related entities, employees or agents have acted fraudulently, dishonestly or unlawfully, or claims for personal injury.

10.2 Under no circumstances will Paras Media be liable for lost revenue, lost savings, special, incidental or punitive damages, damages for business interruption, loss of business information, opportunity or goodwill, or any indirect or consequential loss or damages.

11. GST

11.1 The parties hereto agree that for the purposes of this clause 11:

(a) GST means a tax, any related additional tax, interest, penalty, fine or other charge imposed by or under a GST Act;

(b) GST Act means the ‘A New Tax System (Goods and Services Tax) Act 1999’ (Cth) and/or any other Act relating to the imposition or administration of a goods and services tax;

(c) Recipient in relation to a supply means the entity to which a supply was made;

(d) Supplier in relation to a supply means the entity which made the supply;

(e) Taxable Supply has the same meaning given to that term in the GST Act; and

11.2 Unless otherwise stated, where a party makes a Taxable Supply under this agreement, the Recipient of the Taxable Supply must pay to the Supplier an amount equal to the amount of GST for that Taxable Supply.

12. Notices

A notice or other communication required or permitted to be given by one party to another must be in writing and:

(a) delivered personally;

(b) sent by pre-paid mail to the address of the addressee specified in this agreement; or

(c) sent by email to the email of the addressee.

12.2 A notice or other communication is taken to have been given (unless otherwise proved):

(a) if mailed, on the second Business Day after posting.

12.3 A party may change its address for service by giving notice of that change in writing to the other parties.

13. Waiver or variation

13.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

13.2 The exercise of a power or right does not preclude:

(a) its future exercise; or

(b) the exercise of any other power or right.

13.3 The variation or waiver of a provision of this agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.

14. Governing law and jurisdiction

14.1 This agreement is governed by the laws of New South Wales.

14.2 Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.

15. Further assurance

Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this agreement.

16. Counterparts

This agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.

17. Whole agreement

In relation to the subject matter of this agreement:

(a) this agreement is the whole agreement between the parties; and

(b) this agreement supersedes all oral and written communications by or on behalf of any of the parties.

18. Severance

If any part of this agreement is invalid or unenforceable, this agreement does not include it.  The remainder of this agreement continues in full force.

19. No merger

Nothing in this agreement merger, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.

20. Consents and approvals

Unless otherwise specified, where this agreement gives any party a right or power to consent or approve in relation to a matter under this agreement, that party may withhold any consent or approval or give consent or approval conditionally or unconditionally.  The party seeking consent or approval must comply with any conditions the other party imposes on its consent or approval.