A. Design Junction is a provider of website design services ("the Supplier").
B. The client ("the Client") has engaged the Supplier to provide goods and services in relation to the development of the Client's website and/or hosting of the website or other related services or its maintenance thereof ("the Service").
C. The Client has been provided with a quotation provided by the Supplier with respect to the Service ("the Quotation") which is governed by these terms and conditions ("Terms").
1. Definitions and Interpretation
In these Terms, unless the context requires otherwise:
"Agreement" means the Agreement between the Supplier and the Client pursuant to clause 2.1 hereto.
"Back Up" means making copies of the Data which may be used to restore the Data in the event of the loss of the original Data.
"Browser" means the software application used by the Client to access the Service as outlined in the Quotation.
"Code" means the source code used in the creation of the Service.
"Completion" means the earlier of the Website being hosted in an operational basis by the Supplier or the delivery of the Code to the Client or any other third party pursuant to the Client's instructions to the Supplier.
"Confidential Information" means all information contained to provide the Service or provided to the Client by the Supplier or its Personnel, including but not limited to designs, concepts, product designs (whether registered or not), trade marks, copyright and rights in the nature of copyright, patents, patterns, drawings, models, computer generated designs or images, any rights under licence, know-how, techniques, technical information and technical drawings, any information marked "confidential, details regarding the technology and design of the Service, the way the Services are implemented or the Personnel of the Supplier, the terms of the Agreement (including the Price) or any other information which is treated by the Supplier as confidential or which the Client is advised is confidential save for information which is available in the public domain, unless that information is available in the public domain as a result of the Client's disclosure of said information.
"Data" means but is not limited to publicly available data, programs, information and other works and materials accessible on the Service, including without limitation, websites and pages and web delivered software and other applications.
"Defect" in relation to the Service means that it:
a) has a substantially significant error, defect or malfunction which does not conform with the Quotation; and/or
b) otherwise does not comply with these Terms.
"Event of Insolvency" means:
a) a "controller" (as defined in section 9 of the Corporations Act 2001 (Cth)), a trustee, administrator or similar officer is appointed in respect of a person or any asset of a person;
b) a liquidator or provisional liquidator is appointed in respect of a corporation;
c) an application (not withdrawn or dismissed within 7 days) is made to a court of competent jurisdiction for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of:
ii) winding up or deregistering a corporation; or
iii) proposing or implementing a scheme of arrangement other than with the prior approval of Customer under a solvent scheme of arrangement pursuant to Part 5.1 of the Corporations Act 2001 (Cth);
d) any event or conduct occurs which would enable a Court of competent jurisdiction to grant a petition, or an order is made, for the bankruptcy of an individual or his estate under any insolvency provision;
e) any application (not withdrawn or dismissed within 7 days) is made to a court for an order, a meeting is convened, a resolution is passed or any negotiations are commenced, for the purpose of implementing or agreeing:
i) a moratorium of any debts of a person;
ii) a personal insolvency agreement;
iii) any other assignment, composition or arrangement (formal or informal) with a person's creditors; or
iv) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of that person's creditors or a trustee,
f) any agreement or other arrangement of the type referred to in paragraph (e) is ordered, declared or agreed to;
g) a person becomes an insolvent under administration within the meaning of the Corporations Act 2001 (Cth);
h) as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth), a corporation is taken to have failed to comply with a statutory demand (as defined in the Corporations Act 2001 (Cth));
i) any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of a person;
j) the Commissioner of Taxation issues a notice to any creditor of a person under the Taxation Administration Act 1953 (Cth) requiring that creditor to pay any money owing to that person to the Commissioner in respect of any tax or other amount required to be paid by that person to the Commissioner (whether or not due and payable) or the Commissioner advises that creditor that it intends to issue such a notice;
k) anything analogous to anything referred to in paragraphs (a) to (j) (inclusive) of this definition, or which has a substantially similar effect, occurs with respect to a person under any law of any jurisdiction; or
l) a person is, or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
"First Instalment" has the same meaning as set out in clause 4.1.1 hereto.
"Intellectual Property Rights" includes all present and future rights in relation to trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of the Agreement, and whether existing in Australia or otherwise, save for the Moral Rights.
"Moral Rights" means the moral rights granted under the Copyright Act 1968 (Cth), and any similar rights existing under foreign laws.
"Parties" means the Supplier and the Client.
"Personnel" means of a person means that person's directors, officers, employees, agents, contractors, sub-contractors and their respective personnel.
"Price" means the price for the Service as outlined in the Quotation.
"Quotation" has the same meaning set out in clause 2.1 hereto.
"Website" means the Client's website being developed and/or hosted by the Supplier.
In the Agreement, unless the context otherwise requires:
i. Headings are for convenience only and do not affect the construction or interpretation of these Terms;
ii. Words in the singular also include the plural and vice versa;
iii. Words importing a gender include other genders;
iv. A reference to a "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
v. If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; and
vi. "includes" in any form is not a word of limitation.
2. Creation of Agreement
2.1. The Quotation provided to the Client is subject to the Client's written acceptance of the Quotation in a form as required and directed by the Supplier from time to time in its sole discretion.
2.2. Written confirmation of the Quotation will serve as the Client's acceptance of these Terms and form the basis of a contractual agreement between the Parties ("Agreement").
3. Quotations and Invoices
3.1. Currency for the Quotation and invoices issued by the Supplier are in Australian dollars ($AUD) unless otherwise stated and are exclusive of GST unless otherwise expressly stated.
3.2. Unless otherwise advised by the Supplier in writing:
3.2.1. Quotations are valid for 30 days.
3.2.2. The Quotation may be withdrawn or varied by the Supplier at any time prior to the delivery of Client's written acceptance of the Quotation to the Supplier.
4.1. The Price and the timing of payment must be paid by the Client in accordance with the Quotation.
4.2. The Client acknowledges and agrees that the Supplier may apply any payments received from or on behalf of the Client in reduction of any amount owing in such order and manner as the Supplier thinks fit in its sole discretion.
4.3. In the event of a delay in the provision of work by the Supplier as a result of the Client's failure to provide information necessary for the provision of the work or the Client's failure to comply with the timetable set out in the Quotation, the Supplier is entitled to send the Client an invoice for any work done up to the date of the invoice following 14 days of the Client's delay.
4.4. The Client acknowledges and agrees that it shall be liable for additional charges for any delays caused by the Client resulting in the Supplier's inability to fulfil its obligations under the Agreement.
4.5. The Client acknowledges and agrees that it shall be liable for any delays caused as a result of errors or faults located in the Data provided by the Client.
5. Payment Default
5.1. If the Client fails to make payment for invoice provided to them by the Supplier by the due date specified on the invoice, the Supplier may:
5.1.1. Charge the Client interest on any outstanding amounts at the rate set by the Penalty Interest Rates Act 1983 from time to time;
5.1.2. Charge the Client all costs and expenses incurred in recovering any outstanding amounts owed to the Supplier;
5.1.3. Engage the services of a debt collection organisation, legal practitioners or other entities to assist the Supplier in recovering that debt and add the debt recovery costs to the amount of any outstanding debt, including, but not limited to, costs incurred prior to any legal action, collection agency costs, Court costs, legal costs and search costs;
5.1.4. Suspend the Service provided to the Client until such amounts are paid in full and charge a reinstatement fee as determined by the Supplier to reactivate the Service following payment by the Client;
5.1.5. Require upfront payment for all future work conducted by the Supplier; and/or
5.1.6. Terminate the Agreement with the Client.
5.2. The Supplier will not be responsible for any loss or damage caused by the termination of the Service under clause 5.1.
5.3. The Client warrants that it will not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise for any reason whatsoever) from any amount owing to the Supplier.
6. Service Compatibility
6.1. In the provision of the Service, the Supplier will use reasonable endeavours to ensure the Service will be suitable for current Browser versions as may be provided for in the Quotation.
6.2. In the event that the Service is not compatible with future Browsers, the amendment required to the Service to ensure compatibility is not accounted for in the Price. Accordingly, the Supplier is entitled to charge further fees to amend the Service to ensure its compatibility with future Browser versions.
7. Service Availability
7.1. The provision of the Service commences on the day of the payment of the First Instalment.
7.2. The Client acknowledges that the Supplier may engage contractors to perform or partly perform the provision of the Service.
7.3. The Client acknowledges and agrees that the time frame outlined in the Quotation for the provision and/or delivery of the Service is an estimate only. The Client expressly acknowledges and agrees that it cannot claim any compensation, make any requisition or objection, refuse or delay any payment or terminate the Agreement as a result of the Supplier's inability to meet the time frame estimate.
7.4. The Supplier shall use all reasonable endeavours to provide continuing availability of the Service for the duration of the Agreement, but the Client expressly acknowledges and agrees that the Supplier may, at its absolute discretion and without notice immediately suspend all or part of the Service, without liability to the Client:
7.4.1. Where there is a malfunction or breakdown of any of the Supplier's equipment required to operate the Service or where the Supplier is required to undertake the repair, maintenance or service of any part of the Service;
7.4.2. During planned downtime (of which the Supplier will endeavour to give the Client prior notice);
7.4.3. Where there is any interruption resulting directly or indirectly from an electrical storm, tempest, electrical short circuit, power failure, telecommunications failure or fault, acts of God, civil or military authority, acts of public enemy, wars, accidents, fires, explosions, earthquakes, floods, strikes, labour disputes, Government action, shortage of suitable parts or any other cause beyond the Supplier's reasonable control;
7.4.4. Where it is reasonably required to reduce or prevent fraud or interference with the Service;
7.4.5. The Client is in default of any payment or obligation under the Agreement;
7.4.6. Where the Supplier reasonably believes that these Terms have been violated by the Client;
7.4.7. To withdraw or vary the Service;
7.4.8. The Supplier is required to comply with a request from a government agency, emergency service organisation, law enforcement agency or by order of an Australian Court or Tribunal; or
7.4.9. There exists an event pursuant to clause 13.1 of these Terms.
7.5. The Client expressly acknowledges and agrees that to the maximum extent permitted by law, the Supplier will not be held liable for any loss, liability or damages howsoever arising, directly or indirectly, from or in connection with the unavailability of the Service at any time for any period.
7.6. The Client expressly acknowledges and agrees that the Client cannot claim any compensation, make any requisition or objection, refuse or delay any payment or terminate the Agreement as a result of the unavailability of the Service at any time for any period.
8. Sign-offs and Approvals
8.1. From time to time during the Supplier's provision of the Service, the Client will be required to provide the Supplier with sign-offs and/or approvals on different stages of the development of the Service. These sign-offs and/or approvals will be in the form as directed by the Supplier from time to time in its sole discretion.
8.2. Following the Supplier's receipt of the Client's final sign-off and/or approval regarding the Service, the Client will be provided with a copy of the Code relating to the Service, subject to all payments owing under the Agreement being remitted to the Supplier. The copy of the Code will be provided in the form as determined by the Supplier from time to time.
9.1. Where the Quotation provides that the Website will be hosted by the Supplier, the Client acknowledges that:
9.1.1. The Data may be stored on third party servers; or
9.1.2. The Data may be stored by the Supplier on its servers; or
9.1.3. The Data may be mutually stored on third party servers and the Supplier's servers.
9.2. The Client acknowledges and agrees that in the event that their Data is hosted on third party servers; the Data may be located on foreign based servers, at the Supplier's sole discretion from time to time.
9.3. The Client acknowledges and agrees that the nature of the hosting pursuant to clause 9.1 will be at the sole discretion of the Supplier with regard to the needs of the Supplier from time to time.
9.4. The Supplier agrees to Back Up the Data in the Service at agreed intervals pursuant to the Quotation (as provided). Notwithstanding this, the Client expressly acknowledges and agrees that the Supplier will not be held liable for any loss of Data. Notwithstanding any engagement of the Supplier to Back Up the Data, the Client agrees to separately Back Up the Data to ensure the safekeeping of the Data and to minimise the risks associated with Data loss.
9.5. The Customer acknowledges and agrees that it is required to take all reasonable endeavours, including the encryption of the Data to ensure the security of the Data
10. Maintenance and Warranty
10.1. The Supplier will provide the Client with maintenance of the Service at no charge for a period of 30 days from the date of Completion ("Warranty").
10.2. The Client acknowledges and agrees that the Supplier may be required to make variations or amendments to the Service without notice to the Client in order to provide maintenance to the Service.
10.3. The Client acknowledges and accepts that the Warranty does not provide support in respect of:
a) Third party products and/or services: This includes, but is not limited to email, word processors, operating systems, virus checkers, firewall software, Internet products or validation products;
b) Acts by third parties: This includes, but is not limited to, the following:
i) Rectification of defects or errors resulting from any modification of the Service by any person other than the Supplier's Personnel;
ii) Rectification of defects or errors resulting from use of the Service in combination with equipment other than the designated computer equipment;
iii) Rectification of operating errors;
iv) Rectification of faulty computer hardware;
v) Any modification of the Service which represents a departure from the descriptions contained in the Specifications; and
b) Data Import/Export: Technical support for importing or exporting data to and from products and services other than the Service.
10.4. Following the expiration of the Warranty, the Supplier will provide maintenance of the Service at the Supplier's hourly rate as detailed in the Quotation or as advised from time to time by the Supplier in the Supplier's sole discretion and agreed by the Client.
10.5 The Client acknowledges and agrees that amendments to the Service by anyone other than the Supplier's Personnel resulting in Defects to the Service may be remedied by the Supplier at the Supplier's hourly rate as outlined in the Quotation
11. Client Indemnity
11.1. The Client acknowledges and accepts that, subject to the Competition and Consumer Act 2010 (Cth) or other applicable legislation, the Supplier's total liability for any loss, damage or reliance shall be limited to:
a) In the case of goods, either replacement of goods, repair of goods, or a refund of the price paid for the goods (as determined by the Supplier); or
b) In the case of services, either supply of the services again or a refund of the price paid for the services (as determined by the Supplier).
11.2. The Client acknowledges and accepts that the Supplier is not liable or in default, delay or failure in performance under the Agreement for any interruption resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, wars, accidents, fires, explosions, earthquakes, floods, strikes, labour disputes, Government action, shortage of suitable parts or other cause beyond the reasonable control of the Supplier.
11.3. All warranties, conditions and representations, whether express or implied (other than express warranties stated by the Supplier in writing), are excluded except where the Supplier is by law unable to exclude or limit liability. To the fullest extent permitted by law, the Supplier is not liable to Client for loss of profit or other economic loss, indirect, special, consequential, general or similar damages arising under any order, or for negligence by the Supplier, or for any claim made against Client by any other party even if the Supplier has been advised of the possibility of such claim.
11.4. The Client expressly acknowledges and agrees that delays in the provision of technical support may occur for various reasons, including but not limited to, volume and operational reasons. The Client agrees to hold the Supplier harmless against any such delays.
11.5. The Client expressly acknowledges and agrees that the Supplier, it's Personnel, affiliates, contributors, third party content providers and licensors are not liable to the Client for any direct, indirect, incidental, special consequential or exemplary damages incurred by Client, however caused and under any theory of liability.
11.6. The Client further indemnifies the Supplier in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by the Supplier (including, but not limited to, economic loss and all legal costs and disbursements on a full indemnity basis) caused by the Client and/or any wilful, illegal or negligent act or omission by the Client.
11.7. The Client agrees that the Supplier shall not be liable for:
a) any breach, criminal act or negligence by a third party involving any credit card data which arises out of the provision of Services;
b) any loss of reputation to the Client as a result of any comment, review or opinion made by a third party through the use of social media or any other websites;
c) any damages arising as a result of the Services being hosted on third party servers; and/or
d) any and all third party costs that arise in relation to the provision of Services.
12. Third party Indemnity
12.1. The Client agrees to indemnify the Supplier (including its Personnel) against any loss or liability that has been incurred by the Supplier as the result of a claim made against the Supplier by a third party:
12.1.1. where that loss or liability was caused or contributed to by any wrongful (including negligent) act or omission by the Client or its Personnel;
12.1.2. where and to the extent that loss or liability relates to personal injury, death or property damage caused or contributed to by the Client or its Personnel;
12.1.3. where that loss or liability was caused or contributed to by a breach of the Agreement by the Client or its Personnel; or
12.1.4. where that loss or liability arises from a claim made or threatened against the Supplier in which it is alleged that the contents of the Data provided by the Client infringes the Intellectual Property or the Moral Rights of a third party.
12.2. For the purposes of clause 12.1.4 an infringement of Intellectual Property rights includes unauthorised acts which would, but for the operation of the Patents Act (Cth) 1990 s.163, the Designs Act (Cth) 2003 ss.96 and 100, the Copyright Act (Cth) 1968 s.183 and the Circuits Layout Act (Cth) 1989 s.25, constitute an infringement.
12.3. The Client acknowledges and agrees that clause 12 will survive the termination or expiration of the Agreement.
13.1. Termination by the Client
13.1.1 If the Client is purporting to terminate the Agreement as a result of a breach of the Agreement by the Supplier, the Client agrees that its exclusive remedy is described at 11.1.
13.1.2 The Client may terminate the Agreement at any time by giving the Supplier at least sixty (60) days written notice. The Client acknowledges that on termination of the Agreement, the Client forfeits any Claim to any refund for any amounts for which the Client has been charged, regardless of whether such amounts have been invoiced and/or paid.
13.1.3 Where the Client terminates the Agreement at any time before Completion and through no breach of the Agreement by the Supplier, the Client will be liable to pay the Supplier, by way of liquidated damages any unpaid monies owing under the Price.
13.1.4 If the Client terminates the Agreement without complying with its obligations under clause 13, the Supplier may suspend or terminate the Client's access to the Service immediately. The Client acknowledges that it cannot claim any compensation if the Supplier suspends or terminates the Agreement with the Client under this clause.
13.2. Termination by the Supplier
13.2.1 The Supplier may terminate the Agreement at any time by giving the Client at least fourteen (14) days written notice. If the Supplier terminates the Agreement in this way and the Client is not in breach of the Agreement, any charges paid by the Client will be refunded on a pro-rata basis of the amount paid by the Client for the time in which the Client will not be provided with the Service.
13.2.2 The Supplier may terminate the Agreement immediately if:
a) The Client does not pay outstanding charges by the due date as specified in the invoice to the Client issued by the Supplier;
b) The Client is in breach of any of the express or implied terms of the Agreement and, where the breach is capable of being remedied, the Client has failed to remedy the breach within 14 days after notice by the Supplier;
c) In the Supplier's view, it appears that the Client has undergone or is likely to undergo an Event of Insolvency;
d) The Client fails to comply with any licence, permit or authorisation relating to the Service;
e) If the Supplier reasonably suspects fraud or misuse of the Service by the Client; or
f) Any Claim is made that infringes the rights of a third party or exposes the Supplier to liability to any third party, to prosecution for an offence or to a statutory penalty.
13.3. The Client acknowledges and accepts that the Agreement will terminate automatically, without the requirement for the Supplier to take any action whatsoever, if either party undergoes an Event of Insolvency.
13.4. Upon termination or expiry of the Agreement, the Client must immediately cease access to the Service.
13.5. Termination or expiry of the Agreement will not affect the operation of any accrued rights or liabilities of either party, nor any provision of the Agreement which is expressly or by implication intended to continue in force after such termination
14.1. All warranties, conditions and representations whether express or implied (other than express warranties stated by the Supplier in writing) are excluded except in circumstances whereby the Supplier is by law unable to exclude or limit liability.
14.2. The Supplier further excludes all warranties, conditions and representations whether express or implied including those stated by the Supplier in writing, where it becomes apparent that a warranty, condition or representation will be frustrated as it is not possible due to a legal prohibition or restriction, or is technically or commercially restricted or prohibited
14.3. The Client acknowledges that:
14.3.1. It has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by the Supplier.
14.3.2. It has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Client or any contemplated use by the Client, whether or not such use is known by the Supplier.
14.3.3. Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
15. Dispute Resolution
15.1. If a dispute arises out of or relates to the Agreement, neither Party may commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
15.2. A Party to the Agreement claiming a dispute ("the Dispute") has arisen under the Agreement must give written notice to the other Party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute.
15.3. On receipt of that notice ("the Notice") by the other Party, the Parties must:
15.3.1. Within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
15.3.2. If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Institute of Victoria or his or her nominee;
15.3.3. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
15.4. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.
15.5. If 30 days have elapsed after the start of the mediation of the Dispute and the Dispute has not been resolved, either Party may request that the mediator terminate the mediation.
15.6. In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
16. Intellectual Property
16.1. Any material that the Supplier develops, produces or derives from the Services including, but not limited to, any computer services, systems or processes, is, and remains at all times, the intellectual property of the Supplier, unless authorised in writing by the Supplier.
16.2. The Supplier grants to the Client a non-exclusive, non-transferable licence or right in, all or any part of its Intellectual Property Rights contained in the Services upon receiving full payment of any and all monies owed by the Client to the Supplier.
16.3. The Client acknowledges and agrees that:
16.3.1. The Client has obtained all relevant Intellectual Property Rights, clearances and/or other consents and authorisations over any information such as, but not limited to images, written text, video, software or other content ("Content") which the Client provides to the Supplier in the course of providing the Service.
16.3.2. The Content is the Client's sole responsibility and the Supplier has no ownership, control or responsibility to the Client or to any third party for any Content which may infringe any Intellectual Property Rights of a third party.
17.1. The Supplier may assign its rights under the Agreement at its full discretion and without the consent of the Client.
17.2. The Client may not assign any of its rights under the Agreement without the prior written consent of the Supplier.
18. Service of Notices
18.1. All notices must be in writing and be given by:
18.1.1. Personal service on the other party; or
18.1.2. Prepaid post to the other party; or
18.1.3. Facsimile transmission to the other party.
18.2. Service is effected 2 days after posting if the notice is posted.
18.3. Service is effected immediately upon printed confirmation of receipt of facsimile transmission by the sender of the facsimile transmission.
19.1. Except to the extent necessary to comply with any Statutory Requirements, ASX Listing Rules or government policy relating to the public disclosure of Confidential Information, neither Party may make public, disclose or use any Confidential Information except in accordance with these Terms, unless the other Party gives its prior express written consent to the disclosure
19.2. Each Party may disclose the Confidential Information:
19.2.1. to its Personnel where the disclosure is essential to carrying out their duties for the purposes of the Agreement;
19.2.2. for the purposes of internal corporate governance; or
19.2.3. for the purposes of obtaining legal or other professional advice in respect of its obligations under the Agreement.
19.3. Each Party must ensure that any Confidential Information is used solely in connection with, or for the purposes of fulfilling its obligations under the Agreement.
19.4. Each Party must, at its expense:
19.4.1. ensure, at all times, that each person to whom Confidential Information has been disclosed observes all of that Party's obligations under the Agreement as if those obligations were imposed on that person;
19.4.2. establish and maintain effective security measures to safeguard the Confidential Information from unauthorised disclosure, copying, access or use;
19.4.3. keep the Confidential Information under its control;
19.4.4. immediately take all steps to prevent or stop any suspected or actual breach of this clause 19;
19.4.5. comply with any direction issued by the disclosing Party from time to time regarding any suspected or actual breach of this clause 19; and
19.4.6. immediately notify the disclosing Party of any suspected or actual unauthorised disclosure, copying, access or use of the Confidential Information.
19.5. Each Party will indemnify the other Party ("Indemnifying Party") in respect of any loss, liability or expense incurred by the other Party, arising out of or in connection with a breach by the Indemnifying Party of any obligations under or pursuant to this clause 19.
19.6. This clause 19 will survive the termination or expiration of the Agreement.
20.1. The Client agrees that the Supplier may place a byline and a link to the Supplier's website at the bottom of the Website unless otherwise agreed.
20.2. The Client agrees that the Supplier may include the Website in the Supplier's portfolio for the purposes of its corporate promotion and marketing.
20.3. Any indulgences that the Supplier may grant to the Client shall not affect the rights of the Supplier except to the extent which the Supplier expressly waives the same in writing.
20.4. In the event of any inconsistency between these Terms and the Quotation, the Quotation will prevail.
20.5. Failure or omission by a Party at any time to enforce or require strict or timely compliance with any provision of the Agreement will not affect or impair that provision in any way or the rights of that Party to avail itself of the remedies it may have in respect of any breach of that provision or any other provision.
20.6. Nothing in this agreement should be interpreted as constituting either Party an agent, partner or employee of the other, and neither Party may pledge the credit of the other nor represent to anyone that:
20.6.1. It is the other party or an agent, partner or employee of the other party; or
20.6.2. It has any power or authority to incur any obligation of any nature on behalf of the other party;
20.7. In the event that any provision of these Terms and/or Quotation is held to be invalid or unenforceable, that provision should be read down and the remaining provisions of these Terms and/or Quotation will remain in full force and effect.
20.8. These Terms are governed by, and must be construed in accordance with, the laws of the State of Victoria.