Terms and Condition

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BYWAVE PTY LTD ACN 110 778 320 – STANDARD TERMS FOR CLIENTS

Once these terms are first accepted by you (“Client”) they will apply to all the Client’s subsequent dealings with Bywave, including being incorporated in all agreements (“quote”) under which Bywave is to supply services to the Client. Once accepted they will supersede any previous versions of these terms. They will prevail over anything inconsistent in the Client’s documents. If the Client orders, accepts or pays for any Services after receiving or becoming aware of these terms then it is taken to have accepted these terms (but this does not limit the other ways in which the Client may accept these terms).

1.  PRICING

1.1 Unless the prices in the quote are expressed to be “fixed” or “capped” then those prices should be considered to be good faith estimates only. In that case, Bywave may charge for undertaking any work or expense additional to that contemplated in the approved quote.

1.2 If the prices in the are expressed to be “fixed” or “capped” then Bywave may from time to time request the Client’s approval to charge for work or expense additional to that contemplated in the quote if:

(a) the Client has requested variations to the nature or scope of the Services; or

(b) the additional work or expense was not reasonably foreseeable at the time the Service

Agreement was made, and Bywave may terminate the quote without penalty if the Client does not approve such a request within 7 days.

1.3 Unless otherwise agreed in writing by Bywave, prices are GST exclusive. In addition to the price, the Client must pay to Bywave an amount equal to any GST payable by Bywave for a supply under the quote.

1.4 Unless Bywave and the Client agree otherwise in the quote:

(a) Bywave is under no obligation to keep timesheets or allow the Client to access any timesheets it has kept;

(b) Bywave is under no obligation to disclose arrangements with its suppliers including prices charged by them;

(c) amounts charged for items under the quote may include a markup on their cost to Bywave; and

(d) Bywave may retain rebates and commissions it receives from media outlets and other suppliers without obligation to disclose them to the Client.

2.  PAYMENT

Unless Bywave and the Client agree otherwise in the quote:

(a) If over $1000, Bywave may invoice 50% of the total price under the quote when the agreement is made and the remaining 50% upon completion of the Services;

(b) the Client must pay amounts invoiced by Bywave within 14 days except for the upfront payment which must be paid immediately.

3.  LIABILITY

3.1 Bywave and its Associates will not be liable to the Client for:

(a) indirect or consequential loss, loss of profit, economic loss, or punitive or exemplary damages;

(b) any contravention by the Client of a law, regulation, decree, order, ordinance, permit or license occurring within the scope of Services approved by the Client;

(c) amounts which the Client is entitled to claim under any insurance policy; or

(d) liability, loss, damage, cost or expense caused or contributed to by:

(i) any negligence or breach of duty or contract by the Client; or

(ii) Bywave or its Associates complying with or relying on any instruction or advice given by or on behalf of the Client.

3.4 The Client indemnifies Bywave and its Associates against liability, loss, damage, cost or expense directly or indirectly incurred or suffered by them and caused or contributed to by:

(a) any negligence or breach of duty or contract by the Client; or

(b) Bywave or its Associates complying with or relying on any instruction or advice given by or on behalf of the Client.

3.5 Bywave may come to its own view on legal issues relating to a supply of Services and communicate that view to the Client, who agrees that such communications do not constitute legal advice. The Client will not rely on, nor hold Bywave or its Associates responsible for any error in or omission from, those communications. The Client warrants that the sole legal advice relied upon in connection with the Services will be advice from the Client’s own qualified lawyers and acknowledges that if an estimate of costs provided to the Client by Bywave allows for legal expenses, then those expenses if incurred are directed at confirming Bywave’s, rather than the Client’s, legal exposure arising from the Services.

3.6 Subject to the other provisions of this clause 3, the maximum aggregate liability of Bywave and its Associates to the Client under or in connection with the quote (including without limitation any negligence in connection with the performance of the Services) will be the repayment by Bywave of all amounts paid to it by the Client under that agreement.

4.  INTELLECTUAL PROPERTY

4.1 Bywave agrees to grant to the Buyer a non-exclusive, irrevocable, royalty free licence to use, copy and modify any elements of the Material not specifically created for the Buyer as part of the Services.

4.2 In respect of the Material specifically created for the Buyer as part of the Services, Bywave assigns the full title guarantee to the Buyer and any all of the copyright, other intellectual property rights and any other data or material used or subsisting in the Material whether finished or unfinished.

4.3 If any third party intellectual property rights are used in the Material, Bywave shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for Bywave and the Buyer.

4.4 For the purposes of this Clause, “Material” shall mean the materials, in whatever form, used by Bywave to provide the Services and the products, systems, programs or processes, in whatever form, produced by Bywave pursuant to this Agreement.

5.  CONFIDENTIALITY

5.1 The Client acknowledges that information (including creative concepts) disclosed to it by Bywave under the quote, or in a proposal or presentation intended to secure a quote, is proprietary, confidential or a trade secret of Bywave. Except as contemplated in the quote, the Client must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any such information without the prior written consent of Bywave. This clause does not apply to information which is generally available to the public (other than as a result of wrongful disclosure by the Client) or information required to be disclosed by any law.

5.2 For the duration of any quote, and for 6 months thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any Associate with which the Client had contact during the course of the quote.

6.  TERMINATION

6.1 Bywave may terminate the quote by giving notice to the Client if the Client: breaches any obligation under the quote; is in liquidation or provisional liquidation or under administration; has a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property; is taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand; is unable to pay its debts or otherwise insolvent; takes any step that could result in the Client becoming an insolvent under administration (as defined in section 9 of the Corporations Act); or is affected by any analogous event.

6.2 Upon termination of the quote by Bywave under clause 8.1, the Client must immediately pay to Bywave all amounts outstanding (whether or not those amounts were otherwise due and payable).

6.3 The Client may not cancel or terminate all or part of the quote unless Bywave first consents in writing to same. As a condition of giving its consent Bywave may require the Client to pay: Bywave’s expenses to date; payments required by Bywave’s suppliers to discontinue their work; usual time charges for the work of Bywave staff to date; Bywave’s concept and other applicable standard fees; and an equitable amount by way of profit margin on the preceding items.