Terms & Conditions of Service

AIR Additional Services Terms + Conditions Agreement

1.1 Acceptance

By providing the Client with the document setting out the specifics of, and Fees associated with, the Services, to which these terms are attached, AIR Marketing PTY LTD (hereinafter referred to as "AIR") are making an offer to enter into an Agreement with the Client. The Client may accept the terms of this Agreement by:

(a) verbally accepting it;

(b) email acceptance; or

(c) giving AIR instructions to perform the Services.

1.2 Term

(a) This Agreement begins on the Commencement Date and runs for the Term unless terminated earlier in accordance with clause 9.

(b) On termination AIR must render a final invoice and the Client must pay that invoice in accordance with clause 4

1.3 Special Conditions

(a) This Agreement may contain Special Conditions as set out on the document to which these terms are attached.

(b) If there is any inconsistency between any Special Condition and any other term contained in this Agreement the effect of the Special Condition prevails over any inconsistent term to the extent of that inconsistency.

AIR’s rights and responsibilities

2.1 Key obligations

Subject to the Client meeting its obligations pursuant to clause 3, AIR will:

(a) render the Services to the Client;

(b) provide technical support to the Client to the extent necessary to deliver the Services.

(c) promptly inform the Client of any change of circumstances that may materially impact the provision of the Services;

(d) establish and maintain clear channels of communication, at all reasonable times, with the Client, and promptly answer any questions asked by the Client; and

(e) comply with relevant laws and industry standards in respect of providing the Services.

2.2 Right to sub-contract

AIR may appoint employees or agents to provide all or part of the Services, without consent or notice to the Client. The appointment of any such employee or agent does not relinquish AIR of its obligations under this Agreement. It is AIR’s responsibility to ensure such entities are bound by the same obligations as AIR.

Client’s key obligations

The Client must:

(a) ensure that AIR has access to all information, personnel, facilities and the Client’s premises, as may be required in order for AIR to provide the Services to the Client in accordance with this Agreement;

(b) establish and maintain clear channels of communication at all times with AIR;

(c) immediately inform AIR of any change of circumstances that may materially impact the provision of the Services including any service failure or system threat;

(d) take all reasonable information technology security precautions, and ensure the users of its computer systems take similar precautions;

(e) reimburse AIR the amount of all expenses reasonably and properly incurred by it in the performance of its duties under this Agreement, including travel expenses between AIR’s premises and the Client’s site, accommodation and subsistence expenses, and all other expenses incurred or required to be incurred by AIR to promptly and efficiently provide the Services;

(f) co-operate with AIR’s personnel, as would be reasonably expected, in order to assist it to deliver the Services, including but not limited to providing AIR with information about the Client’s:

(i) existing information systems;

(ii) business processes; and

(iii) use of third-party systems and service providers; and

(g) promptly provide AIR with directions, instructions or information which are requested by AIR.

Payment

(a) AIR will invoice the Client for Fees associated with the conduct of the Services.

(b) All Fees are exclusive of GST. If any GST is imposed on a supply under this Agreement, AIR will itemize any applicable GST on a tax invoice and the Client must pay the GST amount with and in addition to the Fees.

(c) The Client must pay AIR’s invoice in accordance with the payment terms specified on the invoice and where not specified, within 14 days.

Intellectual Property

(a) For the purposes of this clause:

(i) Client IP means any Intellectual Property generated under this Agreement, which is specific to the business of the Client;

(ii) AIR IP means any Intellectual Property generated under this Agreement, which is not specific to the business of the Client; and

(iii) Client Materials means all the Intellectual Property, data or other information provided to AIR by the Client during AIR’s conduct of the Services.

(b) The parties agree:

(i) all Client IP is owned absolutely by the Client and vests in the Client upon payment of the Fees;

(ii) all AIR IP is owned absolutely by AIR and vests in AIR immediately upon creation;

(iii) to the extent that AIR may at any time acquire any right, title or interest in the Client IP in respect of the Services, AIR assigns to the Client all such rights, title and interest in the Client IP upon payment of the Fees;

(iv) to the extent that the Client may at any time acquire any right, title or interest in AIR IP, the Client, by entering this Agreement, assigns to AIR all such rights, title and interest;

(v) AIR grants the Client an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use, for the purposes of its day-to-day business, AIR IP to the extent that it is contained within the Services and necessary:

(A) to operate anything generated by the Services; or

(B) for the Client IP.

(c) AIR warrants that AIR IP does not infringe in any way on any third party’s Intellectual Property rights.

(d) The Client warrants that it owns the Intellectual Property in all the Client Materials, and that use of the Client Materials by AIR will not infringe upon the rights of any third party.

(e) The Client grants AIR an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use, the Client Materials and the Client IP for the purposes of providing the Services.

(f) The Client grants AIR an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use the Client Materials and the Client IP for the purpose of AIR displaying its skills by reference to its previous work in a marketing and advertising context.

Confidentiality

(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

(b) A party will not be in breach of clause 6(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.

(c) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.

(d) Notwithstanding any other provision of this clause 6, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

Limitation of liability

(a) The Client agrees that all implied guarantees, conditions and warranties are excluded from this Agreement, except any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded (Non Excludable Condition).

(b) Subject to the application of any Non Excludable Condition, all other liability from AIR to the Client for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client in connection with the Services, whether that liability arises in contract, tort (including by AIR’s negligence) or under statute, is excluded.

(c) AIR will not, under any circumstances, be liable to the Client for any Consequential Loss, except where such loss cannot be excluded in respect of a Non Excludable Condition.

(d) To the extent permitted by law, AIR’s liability for a breach of any Non Excludable Condition is restricted, at AIR’s option, to:

(i) in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and

(ii) in the case of services: the re-supply of the services; or the payment of the cost of such re-supply of the services.

(e) The Client agrees and acknowledges that AIR may use third party and / or open source code to provide the Services at a lower cost than would otherwise be the case. AIR will not be liable to the Client for any liability, damage or cost connected with AIR’s use of third party and / or open source code.

Indemnity

The Client agrees to indemnify AIR and its officers, employees, contractors and agents against any costs, expenses, losses, including Consequential Loss, damages and liability suffered or incurred arising directly or indirectly from:

(a) the Client’s use of the Services; or

(b) the Client’s breach of this Agreement (including a breach of clause 5(d)) and any negligent or unlawful act or omission by the Client in connection with the Services.

Termination

9.1 Termination for default

Either party may end this Agreement immediately by written notice if the other party:

(a) fails to remedy a Notice of Default within the timeframe allotted;

(b) experiences an Insolvency Event; or

(c) is guilty of dishonesty, serious misconduct or serious neglect of duty.

General

10.1 Entire agreement

This Agreement sets out all the parties’ rights and obligations relating to the subject matter of this Agreement, and it supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.

10.2 Force majeure

If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties' obligations, other than an obligation to pay the Fees, are suspended for the duration of and to the extent that they are affected by the Force Majeure Event.

10.3 Governing law

This Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland.

10.4 Survival

Clauses 1.2(b),5, 6, 7, 8 and any other clause in this Agreement which is expressed to survive or by its nature survives, will survive termination or expiry of this Agreement for any reason.

10.5 Variations

This Agreement may only be varied by written agreement and signed by the parties.

Definitions and Interpretation

11.1 Definitions

Agreement means this legally binding agreement, consisting of these terms and the document to which these terms are attached.

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane, Australia, Queensland.

Client means the party identified as the Client on the document to which these terms are attached.

Commencement Date means the date the parties enter into this Agreement, unless otherwise specified in writing between the parties.

Confidential Information means information that is by its nature confidential including but not limited to:

(a) information relating to the personnel, policies, practices, clientele or business strategies of the parties; and

(b) information relating to the terms of this Agreement,

but does not include:

(a) information already known to the receiving party at the time of disclosure by the other party; or

(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.

Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment, loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilization of armed forces, civil commotion or riot, natural disaster, health epidemic, hacking, industrial action or labor disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.

Fees means the amount for the Services, as set out on the document to which these terms are attached.

Insolvency Event in relation to a party means any of the following, where the party:

(a) enters into a scheme of arrangement with its creditors;

(b) is wound up or dissolved, or an administrator, liquidator or receiver is appointed; or

(c) is placed under official management or commits an act of bankruptcy.

Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Notice of Default means a written notice that:

(a) states that it is a notice of default;

(b) specifies the default with sufficient detail and particulars;

(c) gives a reasonable deadline by which the default must be remedied, of not less than 5 Business Days.

Services means the Services specified on the document to which these terms are attached.

Special Conditions are any terms agreed in writing which are headed and expressly drafted as Special Conditions.

11.2 Interpretation

Unless it is expressly stated that a different rule of interpretation will apply:

(a) a reference to an agreement includes any variation or replacement of this Agreement;

(b) if the due date for any obligation is not a Business Day, the due date will be the next Business Day;

(c) “include”, “includes” and “including” must be read as if followed by the words “without limitation”;

(d) a reference to a clause refers to clauses in this Agreement and is a reference to its sub-clauses;

(e) if a word or phrase is defined, its other grammatical forms have corresponding meanings;

(f) a reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation; and

(g) if any part of this Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of this Agreement will not apply but the other parts of this Agreement will not be affected.