• Open Source Software) To the extent the Supply is a Website and the same includes tools or software which is licensed under an open source software arrangement (a) the terms of the open source licence will apply to the Website, and (b) the provisions of the open source licence will prevail over the terms of the Contract in the event and to the extent of any inconsistency.
• IPR Claims) In the event of any Claim against you alleging that the Supply infringes a third party’s IPR, to the extent the Claim relates to Bellette’s New IPR or Background IPR, Bellette may (at Bellette’s cost) (a) procure for you a licence or right to continue to use the Supply from that third party, or (b) replace or modify the Supply so it no longer infringes the third party’s IPR. Bellette has no obligation or Liability in respect of a Claim for IPR infringement where the same relates to Customer Materials or to the extent the Claim arises from any amendments or modifications to the Supply not made by Bellette (any you indemnify Bellette in respect of any Liability in respect of the same). You must immediately notify Bellette of any claim that the Supply infringes a third party’s IPR and, if Bellette requests, allow Bellette to conduct the defence of that claim (subject to Bellette agreeing to indemnify you in respect of the conduct and settlement of that claim).
• Customer Materials and Consents) You warrant to Bellette that all Customer Materials you provide to Bellette for inclusion or use in a Supply is owned by you or that you have a lawful right to use the same and that none of the Customer Materials infringe the IPR rights of any third party. You must also obtain the consent of each and any person whose image, video, audio and/or written statements you provide to Bellette for inclusion in a Supply. Further, you must procure for Bellette the written consent of any person who is to be interviewed or appear in a video, audio or photo which is to be included in a Supply that the same may be used by Bellette in creating the Supply and allow you to use the same. You indemnify Bellette from all Liabilities arising from any breach of the warranty given by you in this clause. You warrant to Bellette that no Customer Materials will breach any laws (including privacy laws.
• Moral Rights) Bellette will procure the waiver of Moral Rights from each and any Staff member who is engaged in the creation of New IPR in a Supply. In this clause Moral Rights means the rights of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and a right not to have authorship falsely attributed, as defined in the Copyright Act 1968 (Cth). 
• Legal Compliance – Customer Materials): You must ensure that any Customer Materials you provide to Bellette (a) comply with applicable law, (b) are not defamatory or libellous, and (c) are not misleading or deceptive and you indemnify Bellette from all and any Claims in respect of these matters. 

Your Obligations to Assist with Supply

Website Acceptance Tests

Intellectual Property

Updates and Obsolescence

IMPORTANT: You acknowledge and agree that the Website 

(a) is to be used with and in conjunction with web browsers and operating systems, hardware and web browsers including third party supplied versions of any of the same or versions you use or own (Other Systems), and (b) the Website may require upgrades or become obsolescent in the future because of changes to, or the unavailability of, such Other Systems (including, for example, the web browser is updated or discontinued or the operating system on mobile devices which are used to view and access the Website are updated and so the Website requires updates to be compatible with the Website). On this basis, you acknowledge and agree that Bellette provides you with no warranty as to the likely period that the Website will remain viable or before major work will be required to be undertaken to keep the Website functional or operational except as set out in clause 55 (unless the Quote expressly provides otherwise), Bellette is not obligated to provide any Upgrades or other services in respect of the above matters. Where you require Supply to make the Website operational or otherwise arising from the matters set out in this clause in relation to Other Systems, Bellette will charge you for such Supply as agreed in a specific Quote or otherwise by applying the Schedule of rates.

Project Specific Matters

31. (Content Writing): Where the Quote specifies Bellette will provide content writing for the Supply content (Content Writing). You must assist Bellette in respect of any such Content Writing by (a) providing guidance as to the overall structure and topics which the Content Writing must cover, (b) relevant factual information, and (c) guidance on Bellettee’s draft Content Writing including reviewing and signing off on Bellette’s draft Content Writing. You must also notify Bellette if any of Bellette’s draft Content Writing is likely to infringe any IPR rights of any of your competitors. You also agree to check Bellettee’s draft Content Writing and confirm the same is factually accurate and whether the same contains any errors. You remain responsible for the final review and sign off on the use of all Content Writing. You are responsible for the overall strategy and aim of the Content Writing you request Bellette to create. 

32. (Disbursements): Where Bellette procures any third party services or items for you (including any Stock Materials, domain name licence, stock, commissioned photos, video or graphics) in making the Supply you must promptly pay Bellette for the same on Bellette providing such third party invoices to you including any GST on such invoices or which arise from the same being disbursed by Bellette to you.   

33. (Payment Facilities): To the extent that the Website is to include any online credit card or other merchant payment facility (such as paypal) (Payment Functions), (a) you are responsible for contracting with vendors or providers of the same (including paying licensing and integration fees), and (b) we are only responsible (if provided in the Quote) to provide the webpage on the Website where the Payment Functions are to made available. You agree that we have no obligations or Liability in respect of any Payment Functions.

34. (Secure Portals): To the extent that the Quote includes a Website with a secure access portal you are responsible for all passwords and administration of the same (Secure Portal). In respect of a Secure Portal, the only warranty we provide in respect of the same is that the Secure Portal will have the level of security set out in the Quote, or if not specified, then current level of security used by like secure portals. 

40. Unless otherwise agreed in writing, where Bellette agrees to a variation to the Supply (including the time of performance or completion date) then the offered price will be adjusted by amount agreed with you, or otherwise by applying Bellette’s then current Schedule to such variations. Where you request and Bellette accepts a delay in the performance of any Supply, you must pay Bellette an amount equal to that which Bellette determines (acting reasonably) Bellette suffers or incurs because Bellette has committed resources, including Staff, to such Supply.

41. An invoice is payable by you alone and under no circumstances may you withhold payment on the basis you are awaiting payment from any third party or request Bellette seek payment directly from any third party.

Price Adjustment

42. If a Quote is prepared on incomplete, misleading or incorrect information provided by you then, on Bellette’s request, you must pay Bellette an additional amount equal to the difference between the offered price and what Bellette would have offered had the information supplied been accurate and complete.

Payment

43. Payments must be made by electronic transfer in cleared funds into an account nominated by Bellette. Bellette is not required to commence a Supply unless you first pay in full to Bellette any deposit or commencement fee specified in a Quote.

44. Unless a Quote otherwise specifies, you must pay each invoice within 14 days of the date of the invoice. If payment is overdue, Bellette may charge you interest at the Interbank Overnight Cash Rate as published by the Reserve Bank of Australia on its website plus 4% from the date of the default until Bellette receives payment in full. Bellette may apportion any part payments you make against any outstanding principal or interest as Bellette may decide. Bellette may also apportion any payments you make under one Contract to amounts due under another Contract.

45. If payment is overdue under any Contract, Bellette may, in respect of any or all Contracts, suspend the provision of Supply. You must still pay Bellette for Supply already performed under any such Contracts.

46. You may not deduct from the price any set off, counterclaim or other sum unless Bellette agrees in writing.

CONFIDENTIAL INFORMATION

Confidentiality and Privacy

47. A party may use or disclose Confidential Information about the other party only:

47.1 to perform its obligations under a Contract;

47.2 as required by the mandatory operation of law;

47.3 to its professional advisors (bankers, accountants, lawyers) for a proper purpose;

47.4 in respect of Bellette to any related company which has common shareholders to those of Bellette; and/or

47.5 with the other party’s prior written consent.

48. You agree that Bellette owns all Confidential Information that Bellette provides to you (including in respect of a Quote).  If you do not accept a Quote you agree not to provide Bellette’s Confidential Information in a Quote to any third party to assist them to perform the services Bellette quoted for.

49. Bellette agrees that you own all Confidential Information that you provide to Bellette including after the expiry or termination of a Contract.

50. Each party acknowledges that the Confidential Information is commercially valuable and that any breach of clause 47 by either party will result in the other party suffering loss and damage. Each party acknowledges that damages alone may be an insufficient remedy for a breach of this clause and each party is entitled to see injunctive relief to prevent a breach of clause 47 or for specific performance.

51. Each party agrees to return to the other party all of the other party’s Confidential Information (including copies and materials derived from or including the same) on the completion or termination of a Contract.

52. Each party agrees to comply with all applicable and mandatory privacy laws in carrying out a Contract.

Warrenties and claims

Warranties

53. Where the Supply comprises of the development of a Website, Bellette warrants that the Website initially provided to you will be free from significant programming and operation errors and perform substantially in accordance with the Specifications when used in the environment contemplated by the Quote including that the Website will be compatible with the web browser versions specified in the Quote (Limited Warranty). 

54. The Limited Warranties are given in addition to other rights or remedies you may have under a law In relation to goods or services to which the Limited Warranties relate. 

55. The Limited Warranty is valid for a period of 30 days from the eariler of the date the Website is completed, passes any Acceptance Tests or you make the Website publiclt available (Warranty Period). During the Warranty Period Bellette will resolve at Bellette’s cost any significant programming and operation errors with the performance of the Website including arising from its use and access by the web browser versions specified in a Quote or the Specifications so long as you promptly notify Bellette during the Warranty Period (including full details of the nature of the error of the Website). Unless you give Bellette a notice within the Warranty Period, you will be deemed to have given Bellette Notice that the Website complies with Limited Warranty (you may give Bellette a notice by post or email - the details of which are set out in this clause). Bellette Pty Ltd (ACN 089 989 417) GIVES THE LIMITED WARRANTY and has the following contact details Suite 9, 11 Todd Street, Alice Springs NT 0870, Freecall: 1800 421 621. The Limited Warranties are given in addition to other rights or remedies you may have under a law in relation to goods or services to which the Limited Warranties relate.

56. This clause applies in respect of any Supply made by Bellette to you, where you are a “consumer” within the meaning of section 3(1) of the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (Australian Consumer Law).  Bellette’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: (a) to cancel your service contract with Bellette; and (b) to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or services. 

57. Bellette does not warrant that any Supply (including any Content Writing developed or written by Bellette) will result in any economic outcome for you including increased sales. Where the Supply is a Website, Bellette does not warrant that the Website will be secure from hacking or unauthorised access or use.

58. To the extent permitted by law, Bellette makes no other warranty or representation as to fitness for use or performance or compatibility or otherwise of the any other Supply.

Liability

59. Bellette’s liability for a breach of a condition or warranty of supply (including a condition or warranty implied by any law including by the Competition and Consumer Act 2010 (Cth)) or otherwise arising under or in connection with a Contract is limited to (as Bellette may decide):

59.1 in the case of goods, (i) the replacement of the goods or the supply of equivalent goods or the repair of the goods, or (ii) the payment of the cost of replacing the goods or of acquiring equivalent goods or of the cost of having the goods repaired; and

59.2 in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.

60. Bellette will not be liable to you for any economic loss, consequential, contingent, special or indirect damages (including resulting from the loss of business, revenue or profit) with respect to Claims (including third party claims) arising in connection to a Contract or the Website, including any act or omission by Bellette in performing a Contract, for a breach of contract or for negligence or under any other theory of law (even if the risk of such loss or damage was known to Bellette or you).

61. Where either party suffers Liability as the result of the proportionate fault of both parties, the amount recoverable by either party (if any) is to be reduced to such extent as the court thinks just and equitable having regard to each party’s contribution to the overall fault for such Liability.

62. Bellette’s Liability to you for all Claims not caught by clause 59 is limited to a maximum amount equal to the lesser of $5,000 or the total amount you have paid Bellette for all Supplies in the 12 months before you first gave Bellette Notice of a Claim. You agree that:

62.1 this is a genuine pre-estimate of your likely Liability arising from a breach by Bellette;

62.2 if this clause was not included then either (a) the terms of the Contract on which Bellette would have agreed to provide the Supply would have been substantially different (including an increase in price), or (b) Bellette would have refused to enter into the Contract. 

63. To avoid any doubt, in no circumstances will Bellette’s Liability for any number of Claims (under these Terms and all Contracts) exceed in total the amount stated in clause 62.

Cost Recovery 

64. Both parties must pay to the other party all costs, expenses and disbursements (including reasonable legal fees on an lawyer /client basis) incurred in the recovery of monies owed by either party or in otherwise enforcing the other’s rights under a Contract.

Termination

65. Either party may terminate all or any Contracts by Notice to the other party if:

65.1 the other party fails to pay any amount in full within 28 days of the due date under a Contract;

65.2 the other party materially breaaches any term or condition in a Contract and fails to remedy that breach within 14 days of Notice or immediately if the breach cannot be remedied;

65.3 the other party is subject to a Bankruptcy Event;

66. Where the Corporations Act 2001 (Cth), stays or prevents a party from exercising a right to terminate a Contract under clause 65.3, that party may suspend the performance of its obligations under a Contract unless and until the controller or administrator in respect of the other party (Affected Party) provides undertakings in writing acceptable to that party that the Affected Party is and will remain able to perform its obligations under the applicable Contract. In this clause controller and administrator have the meaning given in section 9 of the Corporations Act 2001 (Cth).

67. Bellette may terminate a Contract if you fail to pay Bellette in full by the required time and you fail to remedy the same within 7 days’ notice from Bellette. You may terminate a Contract in respect of Supply at any time by providing 21 days’ notice to Bellette subject to (a) you having paid all invoices in full at the date you provide the notice to Bellette, (b) you pay Bellette’s invoice for the Supply Bellette has performed up to the date you provide Bellette with the notice of termination, and (c) if the Quote provides for an early termination fee you pay the same to Bellette in full on the date you issue the termination notice to Bellette (you agree that any such early termination fee has to be set to compensate Bellette for such early termination and is not a penalty).

68. Termination does not affect any of Bellette’s rights or remedies existing before termination or arising from termination. Clauses 9, 10, 44, 47, 48, 49, 51, 59, 60, 61, 62, 63, 64, 66, 70, 72, 85, 86 and 88 survive the termination of a Contract.

69. Any right or obligation accrued before the termination remains in force and does not affect any right or remedy of either party in respect of any breach before the termination.

70. Neither party may speak publicly about the termination of any or all of the Contracts without the prior written consent of the other party.

71. Either party may terminate these Terms on 30 days’ notice. To avoid doubt termination of these Terms does not affect any Contract in place at the time of such termination of these Terms.

General

No Poaching

72. Subject to any Quote, you agree that you will not, without Bellette’s prior written consent, directly or indirectly solicit, employ or engage any Staff:

72.1 during a Contract; and

72.2 for a period of 12 months from the completion of a Contract if the Staff has been engaged in providing the Supply to you.

Instructions and Communications

73. Unless you give Bellette Notice to the contrary, Bellette will assume that:

73.1 all of your employees, directors and officers who give Bellette instructions are authorised to do so and that Bellette may act on oral instructions;

73.2 Bellette may communicate with you by email; and

73.3 you will direct all communications concerning a Contract to a Bellette team leader as nominated by Bellette from time to time.

74. Bellette is not liable to you for any Liability suffered by you which results from Bellette or its Staff following your directions or specifications in providing or in performing the Supply.

Force Majeure

75. Bellette will not be liable for failure to perform Bellette’s obligations under a Contract to the extent and for so long as Bellette’s performance is prevented or delayed because of circumstances outside of Bellette’s direct control (including labour disputes, obtaining labour, destruction or damage to Bellette’s premises or a relevant Supply site, default or insolvency of any third party, an act of government or governmental authority, terrorism, disruption to the supply of power, gas, internet, water, electronic or telecommunication services, civil disorder, pandemic, the weather or other natural events) and without fault or negligence by Bellette, but only if Bellette:

75.1 gives Notice to you as soon as practicable; and

75.2 does everything reasonable to remedy the cause quickly.

76. Bellette may terminate a Contract 30 days after a Notice is issued under clause 75 if, in Bellette’s opinion, Bellette is unable to perform that Contract or can only perform that Contract at a loss due to the effects of such an event.

Assignments and Amendments

77. You may not assign your rights or obligations under a Contract without Bellette’s prior written consent. If after the date of Bellette’s first Supply to you, you sell the majority of your assets or the persons controlling you change (because of the issue, transfer or sale of shares) then there will be deemed to be an assignment by you requiring Bellette’s consent (which such consent Bellette will not unreasonably withhold).

78. Bellette may use agents and subcontractors to perform any part of the Supply without notifying you or obtaining your consent.

79. Notice

80. Notice can only be in writing (sender).

81. Notice can only be given to a party (recipient):

81.1 personally;

81.2 by registered post to the recipient’s last known place of business or residence. Notice by post is deemed to be received at the time at which the letter would be delivered in the ordinary course of post; and/or

81.3 by email to a recipient’s last known email address. Notice by email is deemed to be received immediately after it is sent unless a delivery failure or delay message is received by the sender within 48 hours; but

81.4 if any notice is deemed to be received at a time which is outside normal business hours in the place where the recipient is, the notice will be deemed to be received at the beginning of normal business hours on the next business day in that place.

Costs and Entire Agreement

82. Unless otherwise provided in a Contract, a party must pay its own costs and expenses in carrying out its obligations.

83. Each Contract is the whole agreement between the parties about its subject matter and supersedes any prior contract or obligation between the parties about its subject matter (including term sheet and heads of agreements). 

No Waiver

84. A party waives a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

Law, Jurisdiction and Disputes

85. >span class=”MsoPageNumber”>86 and 87, the parties submit to the exclusive jurisdiction of the courts of the Northern Territory and the Federal Circuit Court of Australia (Alice Springs Registry).

86. Subject to these Terms, all disputes arising out of or in connection with this these Terms and any Contract, including any question regarding the existence, scope, validity, or termination of these Terms or a Contract or this clause (and including any tortious or statutory claims), will be referred to and finally resolved by arbitration under the Rules of Resolution Institute, which Rules are deemed to be incorporated by reference into this clause but subject to the following:

86.1 the number of arbitrators shall be 1; and 

86.2 the place of arbitration shall be Alice Springs, Northern Territory. 

87. Clause 87 does not apply to any dispute as to the payment of any fees by you to Bellette. Nothing in this clause prevents Bellette from bringing proceedings to obtain an urgent court injunction or order to prevent any potential serious or irreparable harm to Bellette in any court having jurisdiction in respect of matters connected to these Terms and any Contract.

Meanings and Interpretation

88. In these Terms:

Acceptance Tests means the tests (if any) specified in the Specifications or Quote.

Bankruptcy Event means a person (a) becomes a Chapter 5 body corporate, (b) becomes an insolvent under administration or has steps taken against them to make them an insolvent under administration, (c) has a controller appointed over any of its property, (d) has a resolution passed for its winding up or liquidation, (e) cannot pay its debts as and when they fall due, (f) has proceedings brought against it under any bankruptcy or insolvency law and such proceedings are not discharged or stayed within 15 days, or (g) causes or is subject to any event that has analogous effect to any of the above (words italicized in this section have the meaning given in section 9 of the Corporations Act 2001 (Cth)).

Background IPR means all IPR and Materials of Bellette in existence prior to the commencement of the Supply and any Improvements made to the same by Bellette in performing the Supply.

Bellette means Bellette Media Pty Ltd (ACN 089 989 417) of Suite 9, 11 Todd Street, Arrernte Country, Alice Springs NT 0870.

Claim means, in relation to a party, a demand, threat, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Confidential Information means any confidential or proprietary information (in any form) obtained in connection with a Contract (including the terms of a Contract and any notes or copies of confidential information). It, however, excludes information which:

Contract means each and any contract for the performance of Supply by Bellette to you.

Customer Material means all data, logos, graphics, photographs, text, scripts, video and other content required for the Supply other than materials or content which the Quote requires Bellette to procure, develop or provide as part of the Supply and includes any amendments you make or direct to any Content Writing Bellette prepares for you.

Documentation means any manuals and other written materials (including in electronic form) concerning the Website that Bellette agrees in a Quote to prepare and provide to you.

GST means any goods and services tax imposed (as applicable) under Australian law.

IPR means all intellectual property rights, title and interest including in patented and unpatented inventions, copyright (including in source code, data sets and algorithms), trade secrets, know-how and trade marks (registered or unregistered).

Liabilities means Claims, losses, liabilities, costs or expenses of any kind and however arising, including penalties, fines and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

Materials means any all text, graphics, script, logos, software, source code, object code, or other materials created by Bellette in relation to the Supply (whether in a material form or not) and includes Content Writing.

Milestones means the milestones (if any) specified in the Quote.

Milestone Due Dates means the dates (if any) for performance of the Milestones as specified in a Quote or agreed in writing.

New IPR means all IPR and Materials developed by Bellette in providing the Supply and provided to you which is not Existing IPR.

Improvements means all improvements, modifications, customisations or adaptations made to specified IPR (including all documentation and source code relating to the same).

Notice means written notice by post or email.

Policies means any of Bellette’s policies (whether attached to a Quote or these Terms or available at a website specified by Bellette) which Bellette otherwise applies to the applicable Supply being provided (each as amended or re-issued by Bellette from time to time) including the Support Policy (if any).

Quote means any written quote or proposal or written offer from Bellette to you to perform Supply including any statement of works Bellette gives you which references or attaches these Terms in respect of multimedia development services.

Schedule means any of Bellette’s schedules of rates and prices from time to time including:

Supply means Bellette’s provision of services to you under a Contract as set out in a Quote or, if outside the scope of a Quote, as agreed with you and includes all services (services may include website design, multimedia design and advice, branding development and advice, advertising development and creation (including videos) and corporate report preparation.

Specifications means any specifications for a Supply specified in a Quote.

Staff means any of Bellette’s employees, contractors or agents engaged by Bellette to perform the Supply.

Support Policy means Bellette’s policy, if any, as provide by Bellette to you with a Quote or available from a website designated by Bellette.

Tax Law means all forms of taxation, duties, levies and imposts of any jurisdiction (Federal, State or Local).

Third Party IPR means any third party IPR used in a Supply.

Website means the website (including portal if applicable), accessible via the world wide web which provides multimedia content via a graphic user interface as set in the Specifications.

You means the person or company signing or accepting these Terms.

89. In these Terms:

89.1  a reference to “$” or “dollars” is to the lawful currency of Australia;

89.2  a reference to “law” means singular includes plural and vice versa;

89.3  reference to a person includes a corporation and partnership and vice versa;

89.4  headings do not affect interpretation;

89.5  no rule of construction applies to the disadvantage of a party because that party put forward these Terms or a Contract or any portion of it;

89.6  if any part of a Contract would be unenforceable, the provision must be read down to the extent necessary to avoid that result, and if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of the Contract;

89.7  where Bellette is required to provide you with any written document or information Bellette may do so electronically;

89.8  reference to a party includes a successor to the rights or obligations of that party under this Terms and its officers, employees and agents;

89.9  a reference to a web browser version in a Quote is the stated version of that web browser; and

89.10any agreement or consent made or given under these Terms must be in writing and writing includes by email exchange.



BELLETTE MEDIA PTY LTD (ACN 089 989 417)

Version Control: Version 1.1

Dated: 29 March 2021