1.1 DEFINED TERMS

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Brisbane, Queensland, Australia.

Claim means any claim, action, proceeding or demand, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Confidential Information of a party means any information; (i) relating to the business and affairs of that party; (ii) relating to the clients, Personnel, suppliers or other persons doing business with that party; (iii) which is by its nature confidential; (iv) which is designated as confidential by that party; or (v) which the other party knows or ought to know, is confidential, and includes all trade secrets, know-how, financial information and other commercially valuable information of that party.

Consequential Loss means indirect, economic, special or consequential loss or damage, loss of use, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit.

Fee means the charges as set out in a Quote and/or an Order and otherwise in accordance with Media Heroes’ Standard Rates or as varied by this agreement.

Insolvency Event means any of the following events occurring in relation to a party: (i) a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the party; (ii) the party or the party’s property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act or a debt agreement under part IX Bankruptcy Act; (iii) the party is (or becomes) unable to, pay its debts when they are due or is (or becomes) unable to pay its debts within the meaning of the Corporations Act, or is presumed to be insolvent under the Corporations Act; (iv) the party ceases to carry on business; or (v) an order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party, otherwise than for the purpose of an amalgamation or reconstruction.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Material means any material provided by or to which access is given by the Client to Media Heroes for the purposes of this agreement.

1. Order has the meaning given in clause 3.1 (2).
2. Personnel means any officer, employee, agent or sub-contractor of a party.
3. Quote means a quote or proposal provided by Media Heroes to the Client pursuant to clause 3.1.
4. Service Address means the address of each party specified in the “Details” section above
5. Service Commencement Date means the date specified as such in the Quote or if no date is specified, upon creation of an Order.
6. Services means the services to be performed by Media Heroes for the Client as set out in a Quote.
7. Specifications means the agreed scope of work set out in the Quote.
8. Standard Rates means the fees or hourly rates stated in Media Heroes’ price list or included within Quotes.
9. Tax Invoice has the meaning given to that term in the GST Act.
10. Term means the term of Media Heroes engagement commencing of the Service Commencement Date and ending in accordance with this agreement.

1.2 INTERPRETATION

Party or parties means the parties to this agreement and includes the party’s executors, administrators, successors and permitted assigns and substitutes including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee.

A period of days is inclusive of public holidays & weekends and a period of months is a reference to calendar months. The term, “include” or its derivative forms shall not imply any limitation. A$, $A, dollar or $ is to Australian currency.

Headings are for convenience of reference only and will not affect the construction or interpretation of the provisions of this agreement.

In the event of any inconsistency between the provisions of this agreement and the provisions of any other document executed pursuant to this agreement, the provisions of this agreement will prevail.

If a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

2.1 SUPPLIERS OBLIGATIONS

1. Media Heroes will provide the Services using reasonable care and skill and in accordance with the Specifications or, in the absence of such details, such methods as Media Heroes shall consider appropriate.
2. Media Heroes shall use all reasonable endeavours to meet any delivery dates specified in the Order but any such dates are estimates only and time shall not be of the essence for the provision of the Services.

2.1 SUB-CONTRACTING

1. Media Heroes may subcontract the performance of all or part of the Services and the Client authorises Media Heroes to disclose all information necessary for such performance to the subcontractor.
2. Media Heroes shall remain liable to the Client for the performance of the Services as if it had carried them out itself.

3.1 QUOTING PROCEDURE

1. The Client shall accept the Quote via electronic signature or by providing any form of written confirmation referring to the Quote or in response to electronic communication with the Quote attached.
2. Acceptance of the Quote by the Client in accordance with clause 3.1(1) will constitute acceptance of the terms of this agreement, creating an Order.
3. In accepting the Quote, the Client warrants that it has not relied on any representation by Media Heroes and its Personnel other than as specified in the Quote.
4. Quotes are valid for thirty (30) days only,  unless stated otherwise in the Quote or if an extension has been authorised by Media Heroes.
5. Media Heroes reserves the right to withdraw the Quote at any time for any reason.

3.2 SERVICE PERIOD FOR ORDERS

1. Media Heroes will provide the Services commencing on the Service Commencement Date and continuing: (i) for the period, and further periods, specified in the Quote; or (ii) where no period is specified, until the Services have been provided and other requirements of the Order have been met.
2. The Services may be terminated by the Client: (i) where there are no further extension periods contemplated, on completion of the original or current period; (ii) where there are further extension periods contemplated, on providing ninety (90) days’ notice of termination prior to commencement of the next extension period; (iii) where no period applies at all, upon providing ninety (90) days written notice, which will commence on the following scheduled payment date (as referred to in clause 4.3(3)).
3. Cancellations by the Client must be made by email, to be effective, to accounts@mediaheroes.com.au or as otherwise notified by Media Heroes.

3.3 VARIATION OF SERVICES

1. The Specifications supersede all prior communications between the Client and Media Heroes and the Client will ensure that the Specifications required are reflected, completely, in the Quote.

1. Any variation of an Order must be agreed to by Media Heroes and the Client in writing and will specify how much Media Heroes will charge the Client for the provision of any new or varied Services.

3.4 EXCLUSIVITY

1. The Client appoints Media Heroes to act as its exclusive provider of the Services during the Term.
2. Notwithstanding this agreement, Media Heroes is in no way restricted from providing Services to anyone else, including competitors of the Client, subject to the terms of this agreement.

4.1 FEE ESTIMATES & FEE CHANGES

1. When the Fee is based on a time charge: (i) it is an estimate only based on the number of hours expected to provide the Services; and (ii) the actual fee will be determined by the actual number of hours required at the price per hour specified in an Order or a price based on a pre-agreed value for the work, whichever is greater.
2. Media Heroes may vary the Fees or Standard Rates by providing thirty (30) days written notice to the Client.
3. Where a Quote, or any variation to an Order, does not specify a Fee for the Service, or any part of the Service, Standard Rates will apply.

4.2 TAX INVOICES & PAYMENT TERMS

1. Media Heroes will issue a tax invoice for the Fee (or part of it) on the dates or milestones specified in an Order.
2. The Client must pay Media Heroes’ tax invoices by the due date specified, or if a date is not specified, within seven (7) days from the date of the tax invoice.
3. The Client shall not be entitled to retain or defer payment of any money due to Media Heroes because of any dispute, counter claim or set off which it may allege against Media Heroes.
4. If the Order requires the Client to pay a deposit, Media Heroes is under no obligation to provide any Services until the deposit is received in full.
5. If the Client does not pay Media Heroes’ tax invoice when due, in addition to any other right, interest will accrue daily on the outstanding amount, until paid in full, at a daily periodic interest rate of (0.04%) per day.
6. The Client must pay Media Heroes any costs, expenses or losses incurred by Media Heroes because of the Client’s failure to pay to Media Heroes monies outstanding (including debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis).

4.3 PERIODIC INVOICES

1. All Fees that are charged on a periodic basis will be processed by direct debit on the Client’s credit card or bank account and the Client will provide Media Heroes with the applicable details.
2. Other payment options may be agreed between the Client and Media Heroes although may incur additional charges.
3. Fees paid by direct debit will be processed on the 20th day of each month for the following month in advance (unless otherwise notified by Media Heroes in writing) and any Fees payable up to the date of the first direct debit payment will be charged and processed on a pro-rata basis.
4. In the event of a failed debit payment, Media Heroes may debit from the Client’s account an administration fee of $9.90 including GST or any other greater fee charged by the 3rd Party debit provider engaged by Media Heroes.

4.4 WITHHOLD SERVICES

1. Any payment to Media Heroes by the Client is taken to be made when Media Heroes receives the payment into its account in cleared funds.
2. Notwithstanding clause 10, Media Heroes shall be entitled to immediately, without liability to the Client, either suspend, disconnect or terminate provision of the Services in the event of failure by the Client to comply with any of its obligations under this agreement and such failure is not remedied within five (5) Business Days after notice of such failure has been notified to the Client.
3. Further, and notwithstanding clause 10, if the Client fails to do anything required under this agreement, within any agreed deadline or period specified in this agreement (or otherwise within ten (10) Business Days of the date it is requested by Media Heroes), resulting in Media Heroes being unable to complete the Services, Media Heroes shall be entitled to invoice for the Services specified in the Order, whether or not Media Heroes has been able to deliver them, and the Client will pay such amount.

5.1 INSURANCE POLICIES & EVIDENCE

1. Media Heroes will maintain the following insurances during its engagement: (i) professional indemnity insurance of at least $1 million; and (ii) public liability insurance of at least $10 million.
2. Media Heroes will provide the Client with a copy of the insurance policies and certificates of currency within fourteen (14) days after a request by the Client.

6.1 CLIENT WARRANTIES

1. The Client warrants that: (i) all information provided to Media Heroes is accurate in all aspects; (ii) the Client’s Personnel assisting in the execution of an Order have the necessary skills and authority; and (iii) it has the right to use, and permits Media  Heroes to use, the Material in delivering the Services, or has obtained the rights  from third parties to do so.

6.2 CLIENT COMMITMENTS

1. The Client must: (i) immediately notify Media Heroes of anything that may affect the Services; (ii) co-operate and not interfere with or obstruct Media Heroes’ performance of the Services; (iii) be available to give Media Heroes complete instructions in relation to the Services when required; (iv) be honest and upfront in its dealings with Media Heroes; (v) meet deadlines agreed with Media Heroes; (vi) be respectful of Media Heroes Personnel; (vii) comply with all applicable rules, regulations, codes of practice and laws relating the Services; and (viii) not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source/object code, or underlying structure, ideas, or algorithms of or included in the Services or any documentation or data related to the Services or modify, translate or create derivative works based on the Services.

6.3 ACCEPTANCE OF SERVICES

1. Upon Media Heroes delivering any component or element of the Services to or for the Client, including anything requiring the Client’s approval, the Client will have thirty (30) days (or such other period agreed by the parties) to raise any concerns with the Services or provide the approval.
2. Any response received from the Client during this period, from any of the Client’s Personnel, is taken to be final and binding for the purpose of the Fee quoted and any other Services required after that response is a variation in accordance with clause 3.3(2).
3. If the Client does not raise any concerns with the Services, or does not provide the approval, within the thirty (30) days, the Client will be deemed to be satisfied or given approval, as required, and all monies due for the Services will be payable.

6.4 MARKETING

1. The Client agrees to allow Media Heroes to refer to the Client as a client and to use the Client’s business name(s) and logo(s) in Media Heroes promotional material.

7.1 NON-EXCLUDABLE RIGHTS

1. In Australia, statutory consumer protection laws, including the Competition and Consumer Act 2000 (Cth), provide the Client with rights which cannot be excluded (Non-Excludable Rights).
2. To the extent permitted by law, any liability of Media Heroes for a breach of a Non-Excludable Right is limited, including for Consequential Loss, at Media Heroes’ option, to the supplying of the Services again, the refund of all monies paid by the Client to Media Heroes or the payment of the cost of having them supplied again.
3. Subject to these rights, the Client acknowledges that Media Heroes: (i) provides no representations, warranties or guarantees with respect to the Services, express or implied, and the Client uses the Services at its own risk; (ii) is under no obligation to monitor or approve the Material and accepts that Media Heroes excludes all liability of any kind for all Material; (iii) shall not be liable for any changes made, without agreement, by the Client or a third party engaged by the Client including domains, website, links, social profiles, technical setup or anything else affecting the Services delivered by Media Heroes; (iv) does not monitor or take responsibility for the Website “forms” ceasing to work and it is up to the Client to regularly test its Website “forms” to ensure they remain functional.

7.2 INDEMNITY

1. The Client indemnifies Media Heroes, and its Personnel, from and against any loss or liability incurred or suffered arising from this agreement or the Services provided, except to the extent such loss or liability is caused by the negligence or default of Media Heroes.

7.3 MATERIAL

1. Where Material provided by the Client contravenes the law or any relevant third party’s terms or rights, Media Heroes is entitled to reject and delete the Material without incurring any liability and may also cancel the Order, at which time all Fees pursuant to the Order are payable to Media Heroes by the Client.

8.1 MATERIAL

1. The Client hereby grants or agrees to procure the grant of (as applicable) of an irrevocable licence to Media Heroes to use the Material for the purposes of providing the Services.

8.2 CLIENT ACKNOWLEDGEMENT

1. The Client acknowledges that Media Heroes has valuable intellectual property, which it will use to provide Services to the Client (“Pre-existing Intellectual Property”)
2. Nothing in this Agreement is intended to diminish or otherwise affect the Pre-existing Intellectual Property or Media Heroes’ rights in respect of the Pre-existing Intellectual Property.
3. Nothing in this Agreement shall give the Client any ownership rights in the Pre-existing Intellectual Property or any other intellectual property rights of Media Heroes, whether such rights are registered or otherwise.

8.3 MEDIA HEROES ACKNOWLEDGEMENT

1. Media Heroes acknowledges that the Client may contribute its own intellectual property (“Client Intellectual Property”) to assist Media Heroes with the provision of the Services.
2. All Client Intellectual Property contributed by the Client to fulfil the Services shall remain the property of the Client. To the extent Media Heroes requires use of the Client Intellectual Property in providing the Services, the Client grants Media Heroes a limited, royalty-free license to use the Client Intellectual Property for the term of this Agreement, to the extent necessary to provide the Services.

9.1 RESTRAINT REGARDING PERSONNEL

1. In consideration of providing the Client with the Services, and to reasonably protect Media Heroes’ goodwill, and the goodwill of the Client, each party agrees that without the other’s prior written consent:
2. During the Term, and for a period of (such periods to apply concurrently): (i) eighteen (18) months after the Term ends; (ii) twelve (12) months after the Term ends; (iii) six (6) months after the Term ends;
3. Neither party will directly or indirectly in any capacity whatsoever including, but not limited to, in their own capacity or as a consultant, member, partner, director, financier, guarantor, investor, adviser, shareholder, agent, beneficiary, or trustee: (i) induce or solicit the other’s Personnel to leave the other’s employment, engagement or agency; (ii) employ or engage the other’s Personnel.
4. The parties agree that: (i) any combination of the acts referred to above would be unfair and will damage the other’s business; (ii) each separate covenant and restraint in this clause is reasonable; (iii) each separate covenant is intended to have effect as a separate and severable restraint applying cumulatively.

10.1 TERMINATION IN AN INSOLVENCY EVENT OR FOR DEFAULT

1. Despite any other provisions of this agreement, a party may terminate this agreement immediately upon written notice to the other party, if the other party is subject to an Insolvency Event.
2. If a party defaults in the performance of any of its obligations under this agreement or is otherwise in breach of this agreement (Defaulting Party) then the other party (Non-Defaulting Party) may send a default notice to the defaulting party (Default Notice).

10.2 DEFAULT NOTICE

1. The Default Notice must set out the full particulars of the default relied upon and require the Defaulting Party to take steps reasonably acceptable to the Non-Defaulting Party to remedy the default or mitigate its effects within ten (10) Business Days (or such longer period as may be specified in the Default Notice) from the Defaulting Party’s receipt of the Default Notice.

10.3 TERMINATION

1. This agreement may be terminated by the Non-Defaulting Party, immediately by giving the Defaulting Party written notice, if the Non-Defaulting Party has delivered a Default Notice to the Defaulting Party pursuant to clause 10.1 (2) and the Defaulting Party has failed to remedy the default within the period specified in the Default Notice.
2. Media Heroes may terminate this agreement, for whatever reason, by providing written notice to the Client. If Media Heroes has no grounds for terminating this agreement, as specified under the agreement, Media Heroes must refund to the Client all Fees paid to Media Heroes for any Services not yet delivered and the Client shall have no other recourse against Media Heroes whatsoever.

10.4 PAYMENT OF TAX INVOICES

1. On termination in accordance with this clause 10 and clause 3.2(2), the Client will pay to Media Heroes the amount of any outstanding tax invoices issued in accordance with this agreement for the Services or part of the Services performed up to the date of termination of this agreement and if a deposit has been paid by the Client, that deposit will be forfeited.

10.5 NATURE OF RELATIONSHIP

1. Media Heroes is independent of the Client.
2. Nothing in this agreement will be construed to create between the Client and Media Heroes the relationship of employer and employee, principal and agent, or partnership.

10.6 ASSIGNMENT BY CONTRACTOR

1. None of the rights or obligations of the Client under this agreement may be assigned or transferred in whole or in part without the prior written consent of Media Heroes.
2. Media Heroes shall be free to assign its rights under this agreement to any third party upon giving prior notice to the Client.

11.1 THE DISPUTE PROCESS

1. Any dispute or difference whatsoever arising out of or in connection with this agreement (Dispute) shall be resolved pursuant to clause 11.

11.2 REFERENCE TO DISPUTE RESOLUTION

1. The parties shall first refer the Dispute to mediation (ADR Reference) by a Queensland Law Society approved mediator agreed by the parties or failing agreement appointed by the President of the Society on the terms of the Draft Mediation Agreement approved by the Queensland Law Society.
2. The ADR Reference shall commence when any party gives written notice to the other specifying the Dispute and requiring its resolution under this clause.
3. Any information or documents obtained through or as part of the reference under this subclause shall not be used for any purpose other than the settlement of the Dispute under this subclause.

11.3 FINAL RESOLUTION

1. If the Dispute is not resolved within twenty-one (21) days of the commencement of the ADR Reference either party may then, but not earlier, commence proceedings in any court of competent jurisdiction.

11.4 VENUE

1. Any mediation under this clause shall be held at the offices of the Queensland Law Society, unless the parties otherwise agree

12.1 NO DISPARAGING COMMENTS

1. The parties covenant that they will not at any time make any disparaging comments or disclose any information or make or publish any statement or do any other thing which may tend materially to harm or prejudice the other party’s reputation or name (Prejudicial Information), this includes both parties not making disparaging comments or disclosing prejudicial information about the other using social media, web discussion groups, websites or other like forums. The parties agree to immediately remove any Prejudicial Information posted online immediately upon written request of the other party.

12.2 BREACH

1. The parties acknowledge and agree that a breach of this clause 12 or disclosure of Prejudicial Information about the other party as described above will be a material breach of this agreement and may cause material damage to the other party and that damages may be inadequate compensation for such a breach of this provision and, subject to the court’s discretion, the non-breaching party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of this provision.

13.1 CONFIDENTIALITY OBLIGATIONS

1. The parties undertake to keep secret and protect and preserve the confidential nature and secrecy of the Confidential Information of the other. Without limiting this obligation, a party must not: (i) use or permit any person to use the Confidential Information for any purpose other than for the purpose provided; (ii) disclose or in any way communicate to any other person any of the Confidential Information except as authorised by the other party; (iii) permit unauthorised persons to have access to places where the Confidential Information is displayed, reproduced or stored; or (iv) make or assist any person to make any unauthorised use of the Confidential Information

14.1 GOVERNING LAW

1. This agreement will be governed and construed in all respects in accordance with the law of Queensland and Media Heroes and the Client submit to the non-exclusive jurisdiction of the courts of the state of Queensland with respect to any legal proceedings relating to this agreement.

14.2 NOTICES

1. A notice, demand, consent, approval or communication under this agreement must be: (i) in writing and in English directed to the Service Address or the last address of such party as shall have been notified in accordance with this clause 1.1 to other parties; and (ii) (hand-delivered, or sent by pre-paid post, or facsimile, or by email to that address.
2. A notice takes effect when received (or at a later time specified in it) and is deemed to be received: (i) if hand-delivered, on delivery; (ii) if sent by pre-paid post, five (5) Business Days after the date of posting (or ten (10) Business Days after the date of posting if posted to or from outside Australia); (iii) if sent by facsimile, when the sender’s facsimile generates a message confirming successful transmission of the notice in its entirety; (iv) if sent by email, when capable of being retrieved by the addressee at the nominated email address in accordance with s 24 of the Electronic Transactions (Queensland) Act 2001.
3. If the delivery, receipt or transmission of a notice is not on a Business Day or after 5:00 pm on a Business Day in the time zone of the recipient, the notice is taken to be received at 9:00 am on the next Business Day.
4. Notices or other written communications by a party’s solicitor will be treated as given with that party’s authority.

14.3 SEVERABILITY

1. A term or part of a term of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the terms of this agreement continue in force.

14.4 ENTIRE AGREEMENT

1. This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with the subject matter.

14.5 COSTS

1. Each party must pay its own costs of negotiating, preparing and executing this agreement.

14.6 SURVIVAL

1. Any term by its nature intended to survive termination of this agreement survives termination of this agreement, including any indemnity, restrictive covenant or any obligation of confidence.

14.7 NO MERGER

1. The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.

14.8 FURTHER ACTION

1. Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and transactions contemplated by it.

14.9 WAIVER

1. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising a right, power or remedy given to it by this agreement. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.
2. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

14.10 VARIATION

1. Media Heroes may vary the terms contained in any Schedule by providing the Client thirty (30) days written notice of the variation.
2. Otherwise, no variation of this agreement will be of any force or effect unless in writing signed by each part

14.11 COUNTERPARTS

1. This agreement may be executed, including electronically, in counterparts, which taken together constitute one instrument.
2. Each counterpart may be delivered by fax or email and, in which case, they shall together be deemed an original and together one and the same document.