These terms and conditions, together with the Schedule of Work (“SOW”) constitute a legally binding agreement (“Agreement”) for the provision of services to you (“Client”) by Gallup Global Sales & Marketing Pty Ltd, ABN: 12 754 418 138 (“GGSM”). The SOW will define any additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable; and may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the Agreement shall control.

1) Client Representative

In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide or maintain any necessary information and approvals that may be required by GGSM (“Client Representative”). The Client Representative shall be responsible for coordination and review of GGSM’s services and notifying GGSM of Client instructions, change orders and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on Client. If after the Client Representative has approved a design, the Client or any authorised person alters the scope of work or requires additional services, the Client shall pay all fees and expenses arising from such changes and additional services as set forth in section 11 below.

2) Client Obligations and Materials

GGSM’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. GGSM shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfil its obligations under this Agreement.

All copy provided by the Client shall be in electronic, PC-compatible format suitable for typesetting. Where photographs, illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. The Client shall pay all fees and expenses required to bring nonconforming materials up to such standards. The Client warrants that all assets, concepts, materials, specifications, information and instructions provided by Client or its agents may be exploited pursuant to this Agreement and any applicable SOW, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties.

3) Approval of Work

Work will not commence until the signed SOW has been received. Within five business days following receipt of any deliverables, the Client will provide GGSM with either (a) written approval and acceptance of such deliverable (which will not be unreasonably withheld), or (b) a written list of reasonable modification guidelines that will bring the deliverables into compliance with the SOW. Each deliverable hereunder will be deemed accepted by the Client if, within five business days of its delivery to the Client, the Client does not receive the foregoing written notice.

The Client’s written approval of any deliverables, materials, plans or other Work created or produced by GGSM in the course of the provision of the Services, or any cost estimate, will constitute GGSM’s authority to do any act or thing which GGSM considers it reasonable to do in order to carry out its obligations under this Agreement or any SOW.

GGSM will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client’s instructions and GGSM will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.

4) Subcontractors and Suppliers

GGSM may employ Subcontractors and/or engage Suppliers to assist in completing Deliverables, and in doing so shall use reasonable efforts to procure best commercial terms.  Unless otherwise stated in this Agreement or agreed by the parties in writing, GGSM’s contracts with subcontractors and suppliers in respect of the Services shall be made in accordance with subcontractors’ and suppliers’ standard terms or such other terms as GGSM is able to negotiate with the relevant party.

5) Limitations of Liability

GGSM shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including delays and non-performance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by GGSM or by Client. GGSM shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. GGSM’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.

6) Confidential Information; Non-Solicitation

Confidential information is that which relates to the Client’s or GGSM’s research, development, trade secrets or business affairs and includes, in the case of GGSM’s confidential information, concepts presented to, but not selected by, the Client; it does not include information that is generally known or easily ascertainable by third parties. GGSM and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. Neither party shall solicit the other’s employees, independent contractors or consultants or engage them in any work independent of the parties’ relationship under this Agreement during the term of the Agreement and for two years thereafter.

7) Exclusivity

GGSM will provide services to Client on a non-exclusive basis, unless agreed otherwise in a written and signed SOW.

8) Rights, Ownership and Usage

Subject to GGSM’s receiving full payment under this Agreement, GGSM assigns to the Client, without representation or warranty, all rights, title and interest GGSM may have in any work specifically created by GGSM for the Client pursuant to this Agreement, except that:

GGSM may use and distribute such work as part of its portfolio for promotional purposes;

GGSM shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Work”) which have been presented to the Client but not included in the final work product;

GGSM and Client shall own and retain all rights to their respective technology, technical documentation, inventions, algorithms, software, architecture, logic, navigation, 3D modelling files, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, files and features incorporated into or utilised by the Work (collectively, “Background Technology”). Unless the parties agree otherwise in a written and signed SOW, GGSM and Client shall retain ownership of any and all of their respective Background Technology, including any and all associated intellectual property rights. GGSM hereby grants to Client a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform GGSM’s Background Technology, in compiled machine readable object code form only, to the extent incorporated into deliverables provided hereunder strictly for the purposes and in the territories set out in the applicable SOW. Use of GGSM’s Background Technology for any other project, on any other website or in any other medium shall be subject to additional fees and licenses which may be granted or withheld by GGSM in its sole discretion; and

If the Client desires to utilise any of the Work, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Client shall hire GGSM to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such Work if, and only if, GGSM declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to GGSM.

9) Hosting

In addition to all other services set forth herein, GGSM may provide the Client with hosting services in accordance with the Hosting terms set forth in the SOW. In consideration for such hosting services, the Client shall pay GGSM the Monthly Hosting Fee set forth in the SOW.

10) Term and Termination

This Agreement will commence on the Commencement Date and continue until the Completion Date (“Term”) unless terminated earlier as specified herein.

This Agreement may remain effective for Services requested in the future if both Parties agree to continue using it, until explicitly terminated by either Party according to the following paragraph, or Agreement is superseded by a new Agreement executed by both Parties. Under this provision, new requests for Services must be of a Time and Materials nature, or be performed under a new SOW executed by both Parties.

Either party may terminate this Agreement for any reason upon giving 90 days’ prior written notice to the other. Upon termination of this Agreement by Client without GGSM’s fault or consent, Client shall pay GGSM, in addition to all of the fees earned by GGSM pursuant to the terms hereof, the total remaining fees payable to GGSM hereunder (as specified in the SOW), plus any and all expenses and third-party costs reasonably incurred by GGSM through the effective date of cancellation. At GGSM’s election, Client’s delay of work under this Agreement for a cumulative period of more than 30 days without GGSM’s fault or consent shall be considered a termination of this Agreement by Client within the meaning of the immediately preceding sentence. If Client desires to terminate this Agreement due to GGSM’s fault, Client shall give GGSM written notice detailing the nature of GGSM’s fault and possible remedies, whereupon GGSM shall have a reasonable period of time (but in no event less than 30 days) to cure such fault. Termination by Client without providing the foregoing notice and cure period shall be considered “termination without GGSM’s fault” as described above.

Upon expiration or termination of this Agreement each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and, other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.

11) Additional Services, Project Changes

Any services outside the scope of the SOW or changes to previously approved work requested by the Client shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties. Each such additional SOW or Change of Scope is hereby incorporated herein by this reference.

12) Time and Materials

Work requested by Client to be performed by GGSM that is not specifically detailed in a SOW may be completed under the terms and clauses of this Agreement as Time and Materials Work. Such Work will be tracked by GGSM by recording time worked in quarter-hour increments, to be billed on the final day of month in which said Work was completed, at a billing rate of $175.00 AUD + GST per hour.

13) Expenses

Client will be notified in advance for pre-approval of any additional expenses in excess of more than ten percent (10%) of those set forth in a SOW. At GGSM’s discretion, Client shall either pay such fees directly to the third-party vendor or reimburse GGSM therefore upon presentation of applicable invoices. GGSM shall maintain records of expenses.

14) Time of Payment and Late-Payment Charges

The Client shall pay GGSM for the work performed hereunder as set forth on the applicable SOW. Delays resulting from the action or inaction of Client may result in an adjustment in fees by GGSM, subject to Client approval. Each invoice hereunder is due and payable within 14 days after its invoice date. All rights of the Client herein are conditioned on GGSM’s receipt of full payment. In addition, GGSM may suspend performance of services and withhold delivery of materials until payment in full of all amounts due. GGSM shall not be liable for any damages, losses or liabilities that may arise out of GGSM’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue interest at the rate of 1.5% per month. GGSM shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.

15) Governing Law; Jurisdiction

The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the State of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the courts of Victoria for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any such action or proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees of its attorneys.

16) Severability

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

17) Headings

The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.

18) Integration

This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement.

19) Notices

All notices to be given hereunder shall be transmitted in writing either by electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified by each party. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt.