TRADIES BIZ & BIDPIXEL STANDARD TERMS
This agreement sets out the terms under which the BIDPIXEL PTY LTD ABN 70 627 369 466 (BidPixel) provides services to you or the company which you represent (the Client).
You will be taken to have to have accepted these terms and conditions if you sign these terms and conditions (whether on paper or electronically) or otherwise indicate your assent, or if you order, accept or pay for any services provided by BidPixel after receiving or becoming aware of these terms.
- PROPOSALS (IF APPLICABLE)
- These terms will apply to all the Client’s dealings with BidPixel, including being incorporated in all agreements, quotations or orders under which BidPixel is to provide services to the Client (each a Proposal) together with any additional terms included in such Proposal (provided such additional terms are recorded in writing).
- In the event of any inconsistency between these terms and conditions and any Proposal the clauses of these terms and conditions will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms set out and described as such in a Proposal) will prevail over the other terms of this agreement to the extent of any inconsistency.
- A Proposal must be accepted by the Client no later than 30 days after Proposal Date unless otherwise agreed by the parties in writing.
- TERM OF AGREEMENT
- This agreement commences on the Start Date specified in a Proposal or when you accept or pay for any services provided by BidPixel and will continue for the Initial Term specified in the Proposal and any Renewal Terms pursuant to clause 2(b), unless terminated earlier in accordance with clause 26 (the Term).
- Upon expiration of the Initial Term, this agreement will automatically renew for successive quarterly periods (each a Renewal Term) unless either party provides notice that the agreement will not automatically in accordance with clause 26.
- BidPixel reserves the right to increase the Fees or provide an alternative service (or both, as the case may be) for the purpose of a Renewal Term by notice to the Client.
- If this agreement only includes the provision of Creative Services to the Client (and no other Services) then this agreement commences on the Start Date specified in a Proposal and will end upon the delivery of the Final Imagery to the Client in accordance with clause 5.
In consideration for the payment of the Fees, BidPixel will provide the Client with the services set out in a Proposal (Services).
Unless otherwise agreed, BidPixel may, in its discretion:
- not commence work on any Services until the Client has paid any fees or deposit payable in respect of such Services; and
- withhold delivery of Services until the Client has paid the invoice in respect of such Services.
- THIRD PARTY TERMS & CONDITIONS
- Most of BidPixel’s Services include acquiring services supplied by third parties, including Facebook, Google, LinkedIn, TikTok, Pinterest and Spotify (Third Party Providers). If the Services involve BidPixel acquiring services supplied by Third Party Providers on the Client’s behalf, the Client acknowledges that third party terms & conditions (Third Party Terms) will apply.
- The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services or providing any deliverables, and BidPixel will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
- DIGITAL ADVERTISING SERVICES
In relation to any Services involving digital advertising services such as Google Adwords, and Facebook Ad Manager and similar Third Party Provider ads (Digital Advertising) the Client acknowledges and agrees that:
- BidPixel makes no promise or guarantee regarding the effectiveness of any Digital Advertising, including as to conversion rates, but instead by using its professional skills aims to deliver an incremental improvement of the Client’s results;
- the effectiveness of the Digital Advertising may be affected by circumstances outside BidPixel’s control including:
- the Client’s account that is used by BidPixel to perform the Digital Advertising Services being cancelled or disabled on a temporary or permanent basis; or
- the platform that is used by BidPixel to perform the Digital Advertising Services changing its functionality,
and BidPixel will not be liable for any loss or damage suffered by the Client arising from such circumstances.
- DIGITAL AD SPEND
- The parties may agree in a Proposal for digital marketing may be performed either through ad accounts owned by BidPixel on Third Party Providers’ platforms, such as Google Adwords and Facebook Ad Manager (BidPixel Ad Accounts) or through ad accounts owned by the Client on third party platforms (Client Ad Accounts).
- If the digital marketing is be performed via the BidPixel Ad Accounts, the amounts of ad spend may be varied from time by the Client and upon termination of the agreement, any ad spend amounts for Services not yet provided will not be included in the Cancellation Fee.
- If the digital marketing is performed via the Client Ad Accounts, the Client acknowledges and agrees that the Fees charged by BidPixel do not include digital marketing ad spend amounts in the Client Ad Accounts, and the Client will be responsible for paying these fees directly to the relevant platform, such as Google Adwords and Facebook Ad Manager.
- The Client acknowledges and agrees that BidPixel will not be liable for any failures to deliver all or part of the Services resulting from the Client failing to pay the ad spend amounts or any associated fees for any Client Ad Accounts or other factors affecting the Client Ad Accounts in a way that makes disrupts the provision of the Services by BidPixel.
- SALES FUNNELS AND EMAIL NURTURING
- In relation to any Services involving sales funnels, nurture emails or the design of landing pages (Sales Design), the Client acknowledges that:
- BidPixel makes no promise or guarantee regarding the effectiveness of any Sales Design, including as to conversion rates, but instead by using its professional skills aims to deliver an incremental improvement of the Client’s results; and
- the effectiveness of Sales Designs may be affected by changes made to third party platforms and BidPixel cannot control such changes.
- The Client will be entitled to one complimentary amendment to any Sales Design deliverable. Any further amendments will constitute Changes, as that term is defined in clause 14.
- If the Client’s act or omission causes a delay that extends the agreed delivery deadline for the Sales Design by more than 2 weeks, BidPixel may terminate the provision of Sales Design and the Client will be responsible to pay the full Fees payable in respect of the Sales Design.
- WEB DESIGN SERVICES
In relation to any Services involving web development services, including building or customising websites (Websites) the following conditions will apply unless otherwise agreed between the parties in a Proposal:
- BidPixel reserves the right to determine the choice of programming language(s) used in the Websites;
- BidPixel will not be responsible for inputting text, images or other content, or creating all pages in the content management system of Websites;
- BidPixel will not provide any graphics for the Websites, and if BidPixel requires the Client to provide graphics, the Client must provide BidPixel with graphic files in an editable, high resolution, vector digital format;
- BidPixel only tests websites in desktop resolution in the latest versions of the following web browsers: Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox; and
- BidPixel will not guarantee that any Websites will be mobile responsive. If BidPixel does specifically agree to provide mobile responsive Websites, then it will test only on iOS Safari and Google Chrome in Android Emulator.
- HOSTED SERVICES
If the Services to be provided by BidPixel include services to host the Client’s website, application or other information or data (Hosted Services), the following terms apply unless otherwise specifically agreed in writing:
- (hosting location) The Client acknowledges that BidPixel uses storage servers that may be located outside Australia.
- (service quality) While BidPixel will use its best efforts to select an appropriate hosting provider, it does not guarantee that:
- the Hosting Services will be free from errors or defects; or
- the Hosting Services will be accessible or available at all times;
- (security) BidPixel will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely, however BidPixel does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- (backups & disaster recovery) BidPixel will use its best efforts to create scheduled daily backups of Client Data stored by BidPixel. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), BidPixel will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.
- (troubleshooting) BidPixel’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.
- CREATIVE SERVICES
- APPLICATION OF THIS CLAUSE 10
If the Services to be provided by BidPixel under this Agreement include Creative Services, the terms in this clause 10 apply to the provision of those Creative Services unless otherwise specifically agreed in writing.
- CREATIVE SERVICES GENERALLY
The parties acknowledge and agree that:
- any Changes to the Creative Services must be dealt with in accordance with clause 14; and
- either party may cancel the Creative Services at any time by way of written notice to the other party, provided that BixPixel is paid on a time and costs basis for any expenses incurred and time spent up to the date either party cancels the Creative Services, as charged at BidPixel’s ordinary rates.
- SCHEDULE MUST BE PREPARED
A Schedule in accordance with clause 12 must be prepared and agreed to by the parties before provision of the Creative Services commence.
- PROPERTY GIVEN TO BIDPIXEL
- This clause 4 applies if any property is provided by the Client to BidPixel for the so that BidPixel can complete the Creative Services in accordance with this agreement (Provided Property).
- Without limiting any other provision of this agreement, BidPixel will take all reasonable precautions to safeguard any Provided Property.
- In the absence of negligence on the part of BidPixel’s, BidPixel is to the fullest extent of the law, not responsible for loss, destruction or damage of any Provided Property and are not required to return perishable items to the Client in any circumstances.
- BidPixel may, at the Client’s request, arrange for any non-perishable property provided to BidPixel under this agreement to be sent back to the Client at the Client’s expense after the Final Imagery is made available to the Client in accordance with clause 5 (Excess Property) provided that:
- such a request is made by the Client no later than 30 days after the delivery of the Final Imagery to the Client; and
- all amounts owing to BidPixel under this agreement have been paid in full.
- To the maximum extent permitted by applicable law, BidPixel is not liable in any circumstances for any Excess Property in its possession on and from the date which is 30 days after the day BidPixel provides to the Client the Final Imagery and may dispose of Excess Property held beyond that date in any way which BidPixel deems fit in its sole and absolute discretion.
- FINAL IMAGERY
- All photographic material produced by the BidPixel as part of the Creative Services, whether in the form of a digital file, a negative, a transparency, a print or any other type of physical or electronic material (Final Imagery) will be delivered to the Client in the form of JPEG files via a temporary electronic download link which will expire after 14 days.
- If the Client requires additional copies of any Final Imagery after delivery in accordance with 5(a), BidPixel shall retrieve the Final Imagery and forward it to the Client for an additional retrieval fee of $150 + GST, provided that such a request is made no later than 12 months from the day the Final Imagery is delivered to the Client.
- BidPixel will archive and hold copies of the Final Imagery for a period of 12 months following the delivery of the Final Imagery to the Client in accordance with this clause 5, and will not hold the Final Imagery beyond that date.
- Delivery of the Final Imagery will include the published form of the images. Subject to payment of all fees and expenses in full, the Client is granted an exclusive, perpetual, assignable, irrevocable and unrestricted license to use and publish the Final Imagery in accordance with the terms outlined in clause 6.
- Unless otherwise provided, all intellectual property rights in the Final Imagery are BidPixel’s sole and exclusive property as and when they are created. The Client’s rights in relation to the Final Imagery are set out in clause 6.
- PERMITTED USE OF FINAL IMAGERY
Subject to the payment of all fees and expenses owed by the Client to BidPixel and notwithstanding any other provision of this agreement, the Client is granted an exclusive, perpetual, assignable, irrevocable license to use and publish the Final Imagery on the following terms and conditions:
- unless specifically agreed, the license of Final Imagery does not confer any intellectual property rights to the Client, except as a licensee;
- the license will begin operating from the date of payment of BidPixel’s Fees in full;
- the Client indemnifies BidPixel, and will keep BidPixel indemnified, against any loss, damage or claim arising in any way, whether directly or indirectly, from any breach of this license, or any claim by any third party in relation to the Client’s use of the Final Imagery;
- the Client must not use the Final Imagery so as to derogate or harm or adversely reflect on BidPixel’s reputation;
- the Client must not represent that BidPixel have approved or endorsed the Client, the Client’s products or services in connection with the Final Imagery;
- the Client may use the Final Imagery across social media, website and online advertisements; and
- the Client may only use the Final Imagery on television, magazines, billboards, groceries, in physical stores, for international sales purposes or for release to third parties if the Client pays to BidPixel the Additional Distribution Fee.
- CLIENT OBLIGATIONS
The Client must provide BidPixel with all documentation, information and assistance reasonably required by BidPixel to perform the Services.
- The Client agrees to provide BidPixel with access to:
- the Client’s premises and Personnel, to the extent required to perform the Services;
- the Client’s Digital Advertising accounts (including login details and passwords);
- the Client’s website (but only where BidPixel is providing Services that involve making updates or changes to the Client’s website); and
- any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by BidPixel to perform the Services.
- The Client acknowledges and agrees that if, for whatever reason and at any time, it revokes BidPixel’s access to its Digital Advertising accounts, website or other third party or other accounts (Accounts) used by the Client, BidPixel will not be liable for any loss or damage the Client might sustain in connection with the Accounts following such access revocation.
The Client agrees that it will not by receiving or requesting the Services:
- breach any applicable laws, rules and regulations (including any applicable privacy laws); or
- infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
The Client agrees to promptly approve and/or provide feedback on any milestones, deliverables and/or Services.
The Client must not make any public or private statement or comment, whether oral or in writing, which in the reasonable opinion of the BidPixel, is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark or representation about the BidPixel and/or any of its goods and/or services nor any statement that is false and does or has the tendency to damage the reputation of the BidPixel by any method including on social media anywhere in the world.
As part of the Proposal or in the course of BidPixel performing the Services, the parties may agree a schedule for providing certain Services and Deliverables, including estimated dates of completion, deadlines or schedules (Schedules).
BidPixel will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, BidPixel will use its best efforts to minimise the impact of such changes.
BidPixel reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to comply with any of the Client’s obligations under the Schedule, provide timely feedback to BidPixel or other information reasonably requested by BidPixel in order to perform the Services.
The Client must pay to BidPixel fees and any other consideration (including equity) in the amounts, at the times and using the payment method set out in the Proposal (Fees) or as otherwise agreed in writing.
Unless otherwise agreed in a Proposal:
- if BidPixel issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
- in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
- ONLINE PAYMENT PARTNER
- the Client agrees to release BidPixel and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing the Client’s payment.
Unless otherwise agreed:
- the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by BidPixel in connection with a Proposal; and
- any third-party costs incurred by BidPixel in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Proposal.
Unless otherwise indicated, amounts stated in a Proposal do not include GST. In relation to any GST payable for a taxable supply by BidPixel, the Client must pay the GST subject to BidPixel providing a tax invoice.
BidPixel will charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club), however may at its absolute discretion waive such surcharges.
- BidPixel may conduct an open-book audit of the Client upon 7 days’ written notice in order to verify the Client’s revenue, for the purpose of calculating an accurate Commission Fee.
- The Client must comply with any request made under this clause 14 and provide all reasonable assistance to BidPixel for the purpose of conducting an open-book audit.
The Client must pay additional charges for changes to Services requested by the Client which are outside the scope set out in the relevant Proposal (Changes).
Unless otherwise agreed in a Proposal:
- changes will be charged on a time and materials basis, at BidPixel’s standard hourly rates as notified to the Client; and
- BidPixel may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Unless otherwise agreed:
- all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by BidPixel, bear an accreditation and/or a copyright notice including BidPixel’s name in the form, size and location as directed by BidPixel; and
- BidPixel retains the right to describe the Services and reproduce, publish and display the Deliverables in BidPixel’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
- ERRORs in deliverables
The Client acknowledges and agrees that:
- BidPixel will not be liable for any minor errors in the Deliverables, such as spelling mistakes in ad campaigns with multiple search terms involved;
- BidPixel will not be liable for any errors that arise as a result of an act or omission of the Client;
- the Client must report any errors in a Deliverable within three (3) Business Days of such Deliverable being submitted to the Client in writing and BidPixel will use its best endeavours to remedy such an error within a reasonable time;
- BidPixel will have no obligations to fix any errors that the Client reports later than three (3) Business Days of a Deliverable being submitted to the Client but may do so at its absolute discretion; and
- For the avoidance of doubt, a Deliverable in this clause 17 includes a stage or milestone of a particular Service.
Except as contemplated by this agreement or a Proposal, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
- information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
- information required to be disclosed by any law; or
- information disclosed by BidPixel to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Services or its obligations under this agreement.
For the purposes of this clause 18, “Confidential Information” means information of or provided by a party to the other party under or in connection with this agreement or a Proposal that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential and specifically includes any BidPixel IP, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
- The Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of BidPixel with which the Client had contact during the course of a Proposal, for the duration of the Term, and for:
- 2 years following the termination of this agreement; and
- 1 year following the termination of this agreement; and
- 6 months following the termination of this agreement; and
- 3 months following the termination of this agreement.
- Each restraint contained in clause 19 constitutes a separate and independent provision, severable from other restraints.
- INTELLECTUAL PROPERTY
The Client grants to BidPixel (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
- warrants that BidPixel’s use of Client Content as contemplated by a Proposal will not infringe any third-party Intellectual Property Rights; and
- will indemnify BidPixel from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
Unless otherwise expressly agreed in a Proposal, the Client will not under these terms or any Proposal acquire Intellectual Property Rights in any BidPixel IP. Any Developed IP will be solely and exclusively owned by BidPixel and may be used by BidPixel in BidPixel’s sole and absolute discretion, including but not limited to promotional and marketing activities and other portfolio use.
BidPixel grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use BidPixel IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables for the duration of the Term.
- RETURN OF IP
- The Client acknowledges and agrees that upon the termination of this agreement, it must promptly return or do all things at its disposal to facilitate a prompt return of all of BidPixel IP or Developed IP to BidPixel.
- The Client warrants that upon termination of this agreement, it will give BidPixel access to any of the Client’s accounts (whether Digital Advertising accounts or otherwise) that were used by BidPixel to perform the Services to allow BidPixel to remove any of the BidPixel IP or Developed IP contained in such accounts.
For the purposes of this clause 20:
- “Client Content” means any documents or materials supplied by the Client to BidPixel under or in connection with this agreement or a Proposal, including any Intellectual Property Rights attaching to those materials.
- “Developed IP” means any materials produced by BidPixel in the course of providing Services or Deliverables including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
- “BidPixel IP” means all materials owned or licensed by BidPixel that is not Developed IP and any Intellectual Property Rights attaching to those materials.
- “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered.
BidPixel may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
- Both parties must comply, and ensure that their Personnel comply, at all times with Privacy Laws.
- In this clause 22, “Privacy Laws” means the Privacy Act 1988 (Cth), including the Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time, and other capitalised terms have the meaning given in that Act.
- By requiring BidPixel to provide the Services outside of Australia, the Client must ensure that the requested Services and the Client comply with laws similar to the Privacy Laws in all applicable federal and state jurisdictions outside of Australia, such as the GDPR in the European Union or the California Consumer Privacy Act in California, in the United States of America (International Privacy Laws). The Client will indemnify against and hold BidPixel harmless from all losses, claims, expenses, damages and liabilities (including any fines, fees or costs) which arise out of the requested Services breaching any International Privacy Laws.
To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or a Proposal are excluded.
Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, BidPixel’s liability for breach of that non-excludable condition, warranty or guarantee will, at BidPixel’s option, be limited to:
- in the case of goods, their replacement or the supply of equivalent goods or their repair; and
- in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
- LIMITATION OF LIABILITY
To the maximum extent permitted by law, BidPixel’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement or a Proposal:
- is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
- is limited, insofar as concerns other liability, to the total money paid to BidPixel under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
Nothing in this agreement is intended to limit the operation of the Competition and Consumer Act 2010 (Cth).
The Client indemnifies BidPixel from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
- any breach of this agreement by the Client; or
- any negligent, fraudulent or criminal act or omission of the Client or its personnel.
- TERMINATION FOR CONVENIENCE
- Either party may terminate this agreement at the end of the Initial Term by providing 30 Calendar Days’ written notice to the other party before the expiration of the Initial Term.
- After the expiration of the Initial Term, either party may terminate this agreement for convenience by 30 Calendar Days’ written notice to the other party.
- The Client may terminate this agreement for convenience during the Initial Term at any time, provided that the Client pays a Cancellation Fee of the total Fees payable for the Initial Term to BidPixel.
- Either party may terminate the Creative Services at any time (and for the avoidance of doubt, no other Services) in accordance with clause 10.2(b).
- TERMINATION BY SERVICE PROVIDER
BidPixel may terminate these terms or any Proposal in whole or in part immediately by written notice to the Client if:
- the Client is in breach of any term of these terms or any part of a Proposal; or
- the Client becomes subject to any form of insolvency or bankruptcy administration.
The Client may terminate this agreement:
- if BidPixel has committed a material breach of this agreement or a Proposal and has failed to remedy the breach within 30 days written notice by the Client;
- if BidPixel consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees); or
- BidPixel becomes subject to any form of insolvency or bankruptcy administration.
Upon termination of this agreement:
- the Client must promptly pay (at BidPixel’s request):
- BidPixel’s expenses to date;
- payments required by BidPixel’s suppliers to discontinue their work;
- usual time charges for the work of BidPixel’s staff to date; and
- BidPixel’s standard Fees in relation to work already performed and/or for the calendar month in which termination occurred; and
- the Client must immediately deliver to BidPixel all property belonging to BidPixel and materials comprising or containing any:
- Confidential Information;
- any BidPixel IP; or
- any other property of BidPixel, which is in the Client’s power, possession or control, and the Client must thereafter destroy any copies the Client has of such property; and
- BidPixel’s obligations to provide Services to the Client under this agreement will immediately cease.
Any provision of these terms (including in a Proposal) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.
A notice or other communication to a party under this agreement must be:
- in writing and in English; and
- addressed to that party to:
- the postal address of that party; or
- the email address of that party that has been regularly used by the parties to correspond during the term of this agreement (unless such email address is known to be inactive by the party giving notice).
- HOW NOTICE MUST BE GIVEN
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.
When Notice is regarded as given and received
By pre paid post in the same country
On the third Business Day after the date of posting
By pre paid post in another country
On the fifth Business Day after the date of posting by airmail
By email to the nominated email address
Unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address, 24 hours after the email was sent.
Business Day means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Sydney, New South Wales.
- FORCE MAJEURE
- If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement or a Proposal (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), the Affected Party must give to the other party prompt written notice of:
- reasonable details of the Force Majeure; and
- so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
- Subject to compliance with clause 1, the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
- The Affected Party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
This agreement is governed by the law applying in New South Wales, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
This agreement may only be amended by a document signed by each party.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
- FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.