Driven Digital Group

Terms Of Service

TERMS OF SERVICE

 1.0 General Definitions & Interpretations

1.1 Definitions: Capitalised terms or expressions used in this agreement have the meaning set out in this clause.

Applicable Laws:  the laws of Australia and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the exercise of the parties’ rights or the performance of their obligations under this agreement [including the Australian Association of National Advertisers (AANA) Code of Ethics]

Business Day:  a day on which banks are open for business in Brisbane, QLD other than a Saturday, Sunday or public holiday in that city.

Business Opportunities: any opportunities which Driven Digital Group or Driven Digital Group ’s Personnel becomes aware of during the Term which relate to the Client’s Business or which might reasonably be of benefit to the Client.

Change of Control: in relation to a party, the occurrence of any of the following:

  1. the sale of all or substantially all of that party’s assets;
  1. a change in the shareholding of the party (provided that the party is not listed on a recognised securities exchange) that results in [a different person or group of persons having control of the composition of the board of directors or more than 50 % of the shares giving a right to vote at general meetings OR the person or group of persons who at the date of this agreement control the composition of the board of directors or more than 50 % of the shares giving a right to vote at general meetings ceasing to have control of the composition of the board of directors or more than 50% of the shares giving a right to vote at general meetings]; or
  2. a change in the shareholding of the party’s holding company (provided that the holding company is not listed on a recognised securities exchange) that results in [a different person or group of persons having control of the composition of the board of directors or more than 50% of the shares giving a right to vote at general meetings OR the person or group of persons who at the date of this agreement control the composition of the board of directors or more than 50 % of the shares giving a right to vote at general meetings ceasing to have control of the composition of the board of directors or more than 50 % of the shares giving a right to vote at general meetings].

Confidential Information: the Contract Materials and any other information in whatever form (including in writing, oral, visual or electronic form or on any magnetic or optical disk or memory wherever located) relating to the business, clients, customers, products, affairs or finances of a party to this agreement, or any Related Body Corporate of a party, and any trade secrets, including technical data and know-how relating to the business of a party to this agreement, or any Related Body Corporate of a party, or any of their suppliers, clients, customers, agents, distributors, shareholders or management, [that Driven Digital Group or Consultant’s Personnel creates, develops, receives or obtains in connection with the Services,] whether or not such information is marked confidential.

Consultancy Fee:  has the meaning given in Clause 7.1.

Consultant’s Personnel:  Driven Digital Group ’s employees, contractors, staff and other personnel within its employ and control.

Contract Materials:  all things, materials and information, created, conceived, developed or generated by Driven Digital Group or Driven Digital Group ’s Personnel (whether alone or with the Client, its employees, agents or contractors) in supplying the Services under this agreement (including all reports, proposals, marketing materials, records, files, designs, drawings, plans and artwork) [and includes the Deliverables].

Corporations Act:  the Corporations Act 2001 (Cth).

Deliverables:  the deliverables to be provided by Driven Digital Group as a final product of the Services as specified in Paragraph 1.2 of Schedule 1.]

Fair Work Act: Fair Work Act 2009 (Cth).

Fair Work Regulation: Fair Work Regulations 2009 (Cth).

Force Majeure Event:  has the meaning given in Clause 18.1.

Government Agency:  any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

GST Law:  has the same meaning as “GST Law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event:  the occurrence of any one or more of the following events in relation to a party:

  1. it is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
  2. any step is taken to appoint a receiver, a receiver and manager, a liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business;
  3. an administrator is appointed to it under section 436A, section 436B or section 436C of the Corporations Act;
  4. a controller (as defined in section 9 of the Corporations Act) is appointed to it or any of its assets;
  5. an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;
  6. any step is taken to enter into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
  7. it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
  8. it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act;
  9. a notice is issued under section 601AA or section 601AB of the Corporations Act and not withdrawn or dismissed within 14 Business Days;
  10. a writ of execution for an amount of in excess of $100,000 is levied against it or [a material part of] its property which is not dismissed within 15 Business Days;
  11. it ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement; or
  12. anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in paragraphs (a) to (k) of this definition.

Intellectual Property Rights:  all intellectual property (IP) rights of any kind, in any jurisdiction, subsisting now or in the future (including business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.

Key Personnel:  Driven Digital Group ’s Personnel named in Schedule of Key Terms section 8.

Moral Rights:  the rights conferred by Part IX of the Copyright Act 1968 (Cth) and including any similar rights existing or that may come to exist anywhere in the world.

Pre-existing IP Rights:  Intellectual Property Rights in all materials owned by the Client and Consultant independent of this agreement.

Project: DIGITAL MARKETING CAMPAIGN being a project for an agreed program of digital marketing for the client.

Related Body Corporate:  the definition given to that term in section 9 of the Corporations Act.

Services:  the services set out in Schedule 1 to be provided by Driven Digital Group to the Client, through Driven Digital Group ’s Personnel, in accordance with this agreement.

Start Date: [To Be Determined].

6.2Substitute:  has the meaning given in Clause 6.2.

Tax Invoice:  has the meaning given in Clause 7.2.

Term:  has the meaning given in Clause 2.1.

  • In this agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
  • Headings and subheadings are for convenience only and do not affect the interpretation of this agreement.
  • References to clauses, Schedules, annexures, appendices, attachments, and exhibits are references to the clauses of, and the Schedules, annexures, appendices, attachments and exhibits to, this agreement.
  • References to parties are references to the parties to this agreement.
  • References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
  • Words denoting the singular include the plural and words denoting the plural include the singular.
  • Words denoting any gender include all genders.
  • The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association, and any Government Agency.
  • A reference to a body (other than a party to this agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
  • A reference to any agreement or document (including this agreement) includes any amendments to or replacements of that document.
  • A reference to a law includes:
  • legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
  • any constitutional provision, treaty or decree;
  • any judgment;
  • any rule or principle of common law or equity,and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
  • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
  • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
  • No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this agreement.
  • If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
  • A reference to time is a reference to Australian Eastern Standard Time (AEST) unless otherwise specified.
  • A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
  • If any act is required to be performed under this agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
  • If any act is required to be performed under this agreement on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day.
  • A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
  • Specifying anything in this agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
  • This agreement includes all Schedules, annexures, appendices, attachments and exhibits to it.
  • A reference to writing or written includes fax and email unless otherwise expressly provided in this agreement.
  • References to a document in agreed form are to that document in the form agreed by the parties and initialled by them or on their behalf for identification.
  • Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
  • An agreement other than this agreement includes a deed, undertaking or legally enforceable agreement or understanding whether in writing or not.
  • If there is any conflict between the terms of the main body of this agreement and the terms of this agreement’s Schedules and attachments, the terms of the main body of this agreement will prevail.

 2.0 ENGAGEMENT OF DRIVEN DIGITAL GROUP

    • Contract Term: This agreement will start on the Start Date and will continue until the Expiry Date unless terminated earlier by the Client or Driven Digital Group under terms contained in Clause 17 (Termination).
  • Contract Renewal:

  1. Minimum Renewal Periods: This agreement will renew for a period of [3] months recuring from the last date of contract expiry or any subsequent expiry dates.
  1. Termination Notice: At least 30 days before the Expiry Date (or subsequent expiry dates), the Client must duly inform Driven Digital Group, in writing, of its intention to terminate this contract. Neither the Client nor Driven Digital Group is under any obligation to agree to extend the engagement of the Driven Digital Group after the Expiry Date.
  1. If Driven Digital Group continues to provide the Services after the Expiry Date, this entire agreement (other than Clause 2.1) continues to apply on the terms agreed herein, subject to:

(i) a superseding new agreement is issued, in writing and signed by both parties; or

(ii) this agreement is terminated under Clause 17

3.0 CONSULTANTS DUTIES & RESPONSIBILITIES

    • Driven Digital Group will provide the Services to the Client on the terms of this agreement, including those serviced identified in Schedule Of Key Terms section 3.
    • Driven Digital Group will provide the Services:
  • with the standard of care, skill, judgment and diligence expected of a contractor experienced in supplying the same or similar Services;
  • in a manner that promotes the best interests of the Client and the Client’s Business;
  • using the Key Personnel;
  • in a timely, efficient, dependable, and cooperative manner;
  • using its own equipment, supplies, tools and other materials (such items to be at Driven Digital Group ’s own expense) and
  • in accordance with any reasonable direction given by the Client from time to time that is consistent with the scope of this agreement.
    • Driven Digital Group may determine the manner or means by which it performs the Services for the Client, including but not limited to the time and place for performance of the Services;
    • Driven Digital Group will:
  • obtain and maintain all necessary licences, professional registrations, training and consents as required to enable it to provide the Services;
  • ensure it is not under any restriction which would interfere with or conflict with providing the Services; and
  • comply with all Applicable Laws and any relevant rules, policies and procedures of the Client notified to Driven Digital Group in writing from time to time.
  • ACCESS TO PREMISES

    • The Client will provide Driven Digital Group with access to the Client’s Premises and equipment to the extent necessary for Driven Digital Groups performance of the Services.
    • RELATIONSHIP OF THE PARTIES

    • The parties acknowledge that:
      1. Driven Digital Group is engaged by the Client as an independent contractor and nothing in this agreement creates or constitutes a relationship of employer and employee, principal and agent, trustee and beneficiary or of partnership or joint venture between the parties;
      2. any Consultant Personnel (including any Key Personnel) will remain at all times an employee, independent contractor or agent of Driven Digital Group;
      3. Driven Digital Group provides the Services to the Client on a non-exclusive basis, and is free to provide its services to third parties during the Term of this agreement provided that Driven Digital Group will not provide such services in a way that is inconsistent with any of the provisions of this Agreement;
    • Unless specifically authorised to do so by the Client in writing:
      1. Driven Digital Group has no authority to incur expenditure in the name, or for the account, of the Client; and
      2. Driven Digital Group will not, and will procure that Driven Digital Group ’s Representatives do not, make any representations, warranties or undertakings on behalf of the Client or hold itself out as having authority to bind the Client.
    • SUBCONTRACTS, 3P PLATFORMS & PRIVACY

      • Subject to Clause 6.1(b), Driven Digital Group reserves the right to hire personnel (whether as employee, agent or consultant to Driven Digital Group), contract third party service providers (including any software as a service (SasS) providers), for any services necessary to perform the deliverables under this contract, provided that:
        • the Client will not be liable for the cost of those functions; and
        • Driven Digital Group will endeavour contain any such sensitive or confidential information via mandating third-party confidentiality undertakings equivalent to those imposed on Driven Digital Group in this agreement before such third party commences work.
        • Where clause 6.1(b) above, does not pertain to the privacy conditions obliged by third party SaaS providers. Notwithstanding, Driven Digital Group will duly provide third party SaaS privacy conditions, on any client request.
  • FEES AND PAYMENT
    • In consideration of Driven Digital Group providing the Services itemised herein, the Client will pay Driven Digital Group the compensable sums outlined in Schedule Of Key Terms Section4.
    • The Client must pay each Tax Invoice submitted by Driven Digital Group on or before the 20th day of the month on which the corresponding tax invoice is submitted.

 

  • GST

    • Words used in this Clause 8 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
    • Unless expressly stated otherwise, the consideration for any supply under or in connection with this agreement is exclusive of GST.
    • To the extent that any supply made under or in connection with this agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this agreement for that supply (unless it expressly includes GST) plus an amount (Additional Amount) equal to the amount of that consideration (or its GST-exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
    • The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
    • Whenever an adjustment event occurs in relation to any taxable supply to which Clause 8.3 applies:
  1. the supplier must determine the amount of the GST component of the consideration payable; and

    (b)if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to, or credited to the recipient, as applicable.

    • If either party is entitled under this agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified.
  • EXPENSES

    • The Client agrees to reimburse all [pre-approved] reasonable expenses properly and necessarily incurred by Driven Digital Group or Driven Digital Group ’s Personnel in the course of providing the Services, subject to production of receipts or other appropriate evidence of payment.
  • INSURANCE

 

  • Driven Digital Group will obtain and maintain appropriate insurances with a reputable insurer for the Term of this agreement.
  • WORK HEALTH AND SAFETY

    • To the extent that Driven Digital Group representatives, agents, employees or personnel are occupying the clients premises, they agree to adhere to the WHS policies maintained by the client or prescribed by applicable governing law.
  • CONFIDENTIALITY & SENSITIVE MATERIAL

    • Each party will have access to Confidential Information.
    • Each party (Recipient) must keep secret and confidential and not disclose any Confidential Information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers) or the terms of this agreement, except:
  1. where the information is in the public domain as at the date of this agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
  2. if the Recipient is required to disclose the information under any Applicable Law or the rules of any recognised securities exchange, provided that the Recipient has [to the extent practicable having regard to those obligations and the required timing of the disclosure] consulted with the provider of the information as to the form and content of the disclosure;
  3. where the disclosure is expressly permitted under this agreement;
  4. if disclosure is made to its officers, employees, consultants or professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under this agreement or to conduct their business generally, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
  5. where the disclosure is required for use in legal proceedings regarding this agreement; or
  6. if the party to whom the information relates has consented in writing before the disclosure.
  • The Recipient must notify the other party (and Driven Digital Group must procure that Driven Digital Group ’s Personnel notify the Client) as soon as practicable if it becomes subject to an obligation to disclose Confidential Information.
  • The Recipient must provide the other party (and Driven Digital Group must procure that Driven Digital Group ’s Personnel provides to the Client) any assistance reasonably required by the other party in relation to any proceedings commenced against a third party for the unauthorised use, copying or disclosure of Confidential Information.
  • Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient’s obligations under this Clause 12.
  • DELIVERABLES

    • Driven Digital Group must provide the Deliverables as described in Schedule Of Key Terms Section3 in a timely manner to the Client.
    • The Client may on reasonable notice to Driven Digital Group during the Term, request an update on how the Services are being performed, the Deliverables are being produced or an opportunity to inspect the draft Deliverables.
    • Within 30 days of any such inspection, the Client may notify Driven Digital Group of any defects in the deliverables or deviations from the requirements of this agreement identified in relation to the ‘Scope of Services or the Deliverables’ and Driven Digital Group must promptly at its own expense remedy such defects or deviation, subject to all parties acting reasonably.
    • If the Client on inspection or review of the Deliverables following delivery, reasonably determines that any of the Deliverables do not comply with the specification identified in Schedule Of Key Terms Section 3 or are otherwise defective, the Client may, without limiting any other rights it has under this agreement, reject the Deliverables by written notice to Driven Digital Group .
    • Provided all parties are acting in good faith, where the Client has rejected the Deliverables under Clause 13.4, Driven Digital Group agrees, on request at the Client’s option, to rectify any deviations in the Deliverables free of charge.
  • INTELLECTUAL PROPERTY

    • Each party acknowledges that all Pre-existing IP Rights remain the sole property of the owners. Ownership of Pre-existing IP Rights remains unchanged by this agreement, other than as expressly set out in this agreement.
    • Driven Digital Group grants the Client a worldwide, non-exclusive, royalty-free licence to use the Pre-existing IP Rights owned by it for the sole purpose of:
      1. performing the Services; and
      2. to the extent required to use and exploit the Intellectual Property Rights in the Deliverables.
    • The Client grants Driven Digital Group a worldwide, non-exclusive, royalty-free, non-transferable licence to use the Pre-existing IP Rights owned by it for the sole purpose of performing the Services.
    • Driven Digital Group retains all its rights, title and interest in the Contract Materials from the date of their creation, including all existing and future Intellectual Property Rights, to the extent permitted by law.
    • Driven Digital Group grants the Client a worldwide, non-exclusive, royalty-free licence to use the Contract Materials from the date of their creation.
  • INDEMNITIES

 

  • To the greatest extent, permitted by applicable governing law, the client indemnifies, defends and holds harmless Driven Digital Group in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis) in condition with any of the following:
  1. Any breach of this agreement;
  2. Negligent acts or omissions;
  3. Your use of services, including any third party claims made in connection with or arising out of the clients use of the service, other than use in accordance with this agreement.
  4. Breach of third party intellectual property.

You indemnify and agree to keep Driven Digital Group, its Directors, Officers and employees against all loss arising from actions taken performing the Services / Deliverables,

  • TERMINATION

 

  • If not terminated earlier, this agreement and the engagement of Driven Digital Group expires at the completion of the Services to the satisfaction of the Client.
  • Either party (the non-defaulting party) may terminate this agreement with immediate effect by giving written notice to the other party if:
  1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;
  2. the other party commits a Material Breach of any other term of this agreement and either:
    • the breach is irremediable; or
    • the breach is remediable, and the other party fails to remedy that breach within a period of 14 days after the other party has, or is deemed to have, received written notice requesting it to do so;
  3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
  4. an Insolvency Event occurs in relation to the other party;
  5. there is a Change of Control of the other party without the consent of the non-defaulting party, such consent not to be unreasonably withheld or delayed; or
  6. any warranty given by the other party in Clause 22 of this agreement is found to be untrue or misleading.
    • The Client or Driven Digital Group may terminate the engagement of Driven Digital Group and this agreement at any time without cause by giving the other party 30 days’ notice in writing.

      But for any receipt of termination notice not issued / received before a period 30 days prior to the expiry date (or subsequent expiry dates) shall remain subject to the minimum renewal period specified in Clause 2.2a.

  • The Client may also terminate this agreement in accordance with Clause 16.5 or Clause 16.2.
  • For the purposes of Clause 16.2, a Material Breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
  1. a substantial portion of this agreement; or
  2. any of the obligations set out in Clause 3, Clause 11, Clause 12 or Clause 14,
    • over the term of this agreement. In deciding whether any breach is material no regard will be had to whether it occurs by some accident, mishap or mistake.
    • The rights available to a party under this Clause 16 do not affect any other right or remedy otherwise available to it.
  • CONSEQUENCES OF TERMINATION

 

  • On termination or expiry of this agreement:
  1. Driven Digital Group must promptly provide to the Client:
    1. a copy of the Contract Deliverables / materials
  2. each party must promptly deliver to the other all property belonging to the other that is in its possession or control, including any Confidential Information or Contract Materials
  3. each party must pay to the other any sums that are outstanding and to be accounted for under this agreement;
  4. Clause 1 (Definitions and interpretation), Clause 12 (Confidentiality), Clause 14 (Intellectual property), Clause 15 (Indemnities), this Clause 17 (Consequences of termination), Clause 20 (Announcements) and Clause 21 (Default interest) to Clause 28 (Governing law and jurisdiction) survive termination or expiry of this agreement[ together with any other term which by its nature is intended to do so.
    • Termination or expiry of this agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
  • FORCE MAJEURE

    • Neither party is in breach of this agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party’s control (Force Majeure Event).
    • If a Force Majeure Event occurs, the Affected Party must notify the other party (Non-affected Party) in writing as soon as practicable of the particulars of the Force Majeure Event and the anticipated delay.
    • On providing the notice in Clause 18.2, the Affected Party will be entitled to a reasonable extension of time for performing its obligations under the agreement, however, the Affected Party must continue to use all reasonable endeavours to perform those obligations.
    • The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
    • If the delay due to the Force Majeure Event continues for 30 days, the Non-affected Party may terminate this agreement immediately on providing notice to the Affected Party.
  • DISPUTE RESOLUTION

    • If a dispute arises out of or relates to this Agreement, a Party may not commence any court or arbitration proceedings relating to the dispute unless the Party has complied with this clause, except where the Party seeks urgent interlocutory relief. Where a Party fails to comply with this clause any other Party in dispute with the Party so failing to comply need not comply with this clause before referring the dispute to arbitration or commencing Court proceedings relating to that dispute.

A Party claiming that a dispute to which this clause applies has arisen under this Agreement or in relation to this Agreement shall give written notice to each of the other Parties designating as its representative in negotiations relating to the dispute a person with authority to settle the dispute on its behalf. Each other Party given written notice shall promptly give notice in writing to each other Party designating as its representative in negotiations relating to the dispute a person with similar authority.

  • Driven Digital Group may pause work to conduct whatever investigations deemed appropriate and, within 90 days of the given written notice, seek to resolve the dispute.
  • If the dispute is not resolved within the following 90 days (or within such further period as the representatives may agree is appropriate), the Parties shall within a further 90 days (or within such further period as the representatives may agree is appropriate) seek to agree on:
  1. a process for resolving the whole or part of the dispute through means other than litigation or arbitration, such as further negotiations, mediation, conciliation, independent expert determination; the procedure and timetable for any exchange of documents and other information relating to the dispute;
  2. procedural rules and a timetable for the conduct of the selected mode of proceeding;
  3. a procedure for selection and compensation of any neutral person who may be employed by the Parties to assist in relation to the dispute; and
  4. whether the Parties should seek the assistance of a dispute resolution organisation.

  5. The Parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this Clause is to attempt to settle the dispute between the Parties
    • After the expiration of the time established by or agreed upon under this Clause for agreement on a dispute resolution process, any Party which has complied with the provisions of Clause 24 may in writing terminate the dispute resolution process provided for in those paragraphs and may then refer the dispute to arbitration or commence Court proceedings relating to the dispute.
  • ANNOUNCEMENTS

    • Subject to Clause 20.2, no party may make, or permit any person to make, any public announcement, communication or circular (Announcement) concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed).
    • Where an Announcement is required under any Applicable Law or the rules of any recognised securities exchange, or by any court or other authority of competent jurisdiction, the party required to make the Announcement must promptly notify the other parties. The party concerned must make all reasonable attempts to agree the contents of the Announcement before making it.
  • DEFAULT INTEREST

    • If any sum due for payment under this agreement is not paid on the due date, the party in default must pay interest on the amount unpaid at the daily 11.00 am cash rate quoted on Reuters page RBA30.
    • Interest payable under Clause 21.1 accrues on a day to day basis from the due date up to and including the date of actual payment.
    • Interest payable under Clause 21.1 may be capitalised by the non-defaulting party on a monthly basis.
  • REPRESENTATIONS AND WARRANTIES

    • Each party represents and warrants to the other that:
  1. it has full authority to enter into this agreement and is not bound by any agreement with any third party that adversely affects this agreement;
  2. it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this agreement.
    • Driven Digital Group represents and warrants that: it is free to provide the Services and has no other written or oral commitments that would breach the confidentiality, non-competition, non-solicitation, or other agreement entered into by Driven Digital Group with any third party;
  3. all Services will be performed by suitably qualified and experienced persons;
  4. the Services and the Contract Materials will be fit for the purpose for which they are supplied;
  5. all Contract Materials are and will be Driven Digital Group ’s original work (except for material in the public domain or provided by the Client or supplied in connection with consultation agreements with Driven Digital Group) and, to the best of Driven Digital Group ’s knowledge do not and will not violate or infringe upon the intellectual property rights or any other rights whatsoever of any person, firm, corporation or other entity; and
  6. the supply of the Contract Materials, and the use of the Contract Materials by the Client, does not and will not contravene any Applicable Laws or infringe the rights of a third party.
  • VARIATION

    • Driven Digital Group reserves the right to amend these terms of service. Any amendment or variation of these terms will be issued to the client for consideration, in writing. Subject to genuine concern, by the client and having regards to provisions within clause 14, clause 15 and clause 17, the client may reject these new terms of service or duly terminate this agreement.
  • ASSIGNMENT AND OTHER DEALINGS

    • A party may only assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement:
  1. in accordance with Clause 6; or
  2. with the prior written consent of the other party, whose consent must not be unreasonably withheld.
  • NO WAIVER

    • No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
    • Words or conduct referred to in Clause 2.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
  • SEVERABILITY

    • If the whole or any part of a provision of this agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
    • Clause 26.1 does not apply if the severance of a provision of this agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this agreement.
  • ENTIRE AGREEMENT

This agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

  • GOVERNING LAW AND JURISDICTION

    • This agreement is governed by the law in force in [Queensland, Australia].
    • Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in [New South Wales] and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.