Terms and Conditions
Right Media Pty Limited
T/A Right Media
Terms & Conditions of Service
Right Media agrees to provide the Services requested by the Client 1 November 2015 on the terms and conditions set out below. Words in ITALICS are defined at clause 26.1 below.
1. Acceptance
1.1 Clauses 8.3, 11.3, 18.4, 21.1, 23.1 and 24.1 shall apply to the Agreement unless or to the extent the Order or Order expressly specifies otherwise.
1.2 The Client shall be deemed to have accepted these terms and conditions and the Order if the Client: (a) selects the “I Agree” condition (or the like) on Right Media’s website when completing the online Order and submits the online Order, (b) executes the Order and returns the Order to Right Media, (c)gives or continues to give Right Media instructions in relation to the Services after receiving the Order, or (d) verbally accepts the Order.
1.3 Notwithstanding clause 1.2, Right Media may insist on the Client accepting the Order and these terms and conditions in writing by signing the Acceptance or another form of written acceptance.
2. Services
2.1 Right Media shall provide the Services in accordance with the Agreement. The Client and Right Media agree that the items referred to as Exclusions in the Order, if any, are excluded from the Agreement.
2.2 Right Media warrants that the Services will be provided with due care and skill.
2.3 Right Media shall not be required to commence the Services until the Client has paid the Set Up Fee, if any, in accordance with clauses 5.2.
2.4 Right Media is entitled to pause the Services at any time for operational and management reasons.
3. Term
3.1 Subject to clauses 2.3, Right Media shall provide the Client with the Service for the Term commencing on the date the Agreement is accepted or otherwise agreed in writing between the parties.
3.2 Upon the Term expiring the:
(a) Right Media may provide the Client with the Service on a month-to-month basis commencing on the date after the Term expires, and
(b) Client must pay the Monthly Retainer, and any other monies under the Agreement, for each month until the Agreement is terminated in accordance with clause 10.
4. Client’s Responsibilities & Acknowledgments 4.1 The Client must:
(a) comply with Right Media’s reasonable directions in a timely manner,
(b) provide Right Media access to the Client’s Current Website, and
(c) promptly provide all information requested and reasonably required by Right Media for the purpose of providing the Services including, without limitation:
(i) Google Analytics access, (ii) Facebook access,and (iii) Linkedin access.
4.2 The Client acknowledges that:
(a) the results of the Service may vary due to Google changing its systems and algorithms which affect search rankings,
(b) the ranking of a website on a particular search engine (such as Google) is determined by many factors outside the control of Right Media,
(c) Right Media cannot guarantee that the Services will result in the Client’s desired outcome,
(d) Right Media is not responsible for any independent changes made to the Current Website by the Client or other parties that detrimentally affect the ranking of the Current Website,
(e) the Client is authorised to use any images or content provided to Right Media by the Client,
(f) the Client will indemnify Right Media for any loss or damage incurred by Right Media as a result of any authorised use of images or content provided to Right Media by the Client, and
(g) Right Media may provide incentives to third parties to introduce potential customers or clients to Right Media or to direct Right Media to potential customers or clients.
4.3 Right Media shall not be responsible for any errors brought about by the Client’s failure to provide information or documentation or failure to provide material that is later found to be material to the Client’s requirements or any statutory return.
5. Fees & Invoices
5.1 The Client shall pay to Right Media the Fees and other money that becomes payable under the Agreement (without any set off) in the manner and at the times stated in the Agreement.
5.2 The Client shall pay to Right Media the: (a) Set Up Fee, within 10 Business days of the Acceptance, and (b) Monthly Retainer, if any, on the first day of each calendar month in advance after Acceptance for the Term,
5.3 The Client shall indemnify Right Media for reasonable expenses incurred on behalf of the Client and costs borne in connection with the performing of the Services.
5.4 Right Media may issue an Invoice in respect of work carried out by Right Media: (a) on or after the dates, periods or milestones specified in the Order, if any, (b) on or after the Acceptance date, (c) on a fortnightly basis, (d) on or after the date the Client requests a Variation or Custom Services, and (e) when in Right Media’s opinion the Services or any Variation have been completed.
5.5 The Client must pay the Fees progressively as claimed by Right Media within 10 Business days, or such other period as specified in the Order, of service of an Invoice on the Client.
5.6 Where the Fees are determined according to an hourly rate, Right Media shall provide an itemised account of fees and charges upon the Client’s written request.
5.7 If Right Media engages a third party consultant in connection with the Services with the Client’s prior consent, the Client shall indemnity Right Media against all fees and disbursements charged by that third party to Right Media. The Client acknowledges that Right Media may require that the Client enter into a service agreement with the third party directly.
5.8 The Fees shall increase at such other times as Right Media gives 30 days prior written notice to the Client.
5.9 The Client is not entitled to receive the benefit of any credits, discounts, subsidies, rebates, or refunds provided to Right Media by Right Media’s Third-Party Partners.
5.10 If the Fees are paid by direct debit the Client acknowledges that the respective third party direct debit party’s terms & conditions will apply and the Client agrees to be bound by the said terms & conditions.
6. Variations & Custom Services
6.1 A Variation or Custom Services occurs if:
(a) the Agreement deems a Variation or Custom Services,
(b) the Client requests Right Media to perform a Variation or Custom Services and subsequently Right Media performs the Variation or Custom Services in accordance with the Client’s direction,
(c) the Client and Right Media agree in writing to a Variation or Custom Services, including Agreement as to the price of the Variation or Custom Services , or
(d) Right Media’s expenses or supplier costs increase.
6.2 The price of a Variation or the Custom Services Fee is payable progressively as the Variation or Custom Services is performed and is due at the same time as the next Account after it is carried out unless a different time is agreed.
6.3 If the Client has requested Right Media to perform a Variation or Custom Services and Right Media has provided the Client with a cost proposal in respect of the Variation or Custom Services, unless the cost proposal is rejected by the Client in writing within two (2) Business Days the amount of the cost proposal is deemed to be the price of the Variation or Custom Services for the purposes of clause 6.1(b).
6.4 If there is insufficient time to calculate the price of a Variation or Custom Services, or this Agreement deems a Variation or Custom Services, the price of the Variation will be charged to the Client based on Right Media’s prevailing hourly rates at the time.
6.5 There shall be a deemed Variation or Custom Services if:
(a) the requirements of any statutory or other Authority necessitate a change to the Services, such Variation being that work required to effect that change,
(b) additional work is required, or the work is required to be performed in a manner not anticipated,
(c) after the Agreement is made a statutory or other Authority introduces or increases any tax, charge, levy or other regulation or any requirement that affects the Services that causes any increase in the costs of the Services..
6.6 Notwithstanding any other clause herein, Right Media is under no obligation to carry out any deemed Variation, Variation or Custom Services requested by the Client.
7. Acknowledgement of Possible Delays
7.1 The Client acknowledges that completion of the Services may be suspended by Right Media pursuant to clause 8 or delayed by any cause beyond the control of Right Media including; (a) a Variation or a request by the Client for a Variation; (b) an act of God, fire, explosion, earthquake or civil commotion; (c) an industrial dispute; (e) anything done or not done by the Client; (f) Right Media’s period usual Christmas shutdown period, if any, in each year; and (g) any materials required by Right Media to perform the Services not being fully completed or made available to Right Media.
7.2 Right Media shall not be liable for the failure to perform the Services or the Agreement to the extent and for so long as its performance is prevented or delayed without substantial fault or negligence by Right Media because of a circumstance referred to in clause 7.1.
7.3 Where the costs of the Services has increased due to any delay beyond the control of Right Media, there shall be a deemed Variation and Right Media shall be entitled to a reasonable increase in the Fees.
8. Suspension
8.1 If the Client is in breach of the Agreement Right Media may suspend the carrying out of the Services and must promptly give to the Client written notice of the suspension and details of the breach.
8.2 Right Media must recommence the providing the Services within a reasonable time after the Client remedies the breach and gives Right Media written notice of that fact.
8.3 Right Media may suspend the Services without prior notice if any director or company secretary of the Client or spouse of the Client or spouse of any director or company secretary of the Client refuses to execute a personal guarantee of the obligations of the Client under the Agreement in a form approved by Right Media.
9. Dispute Resolution
9.1 The parties must attempt to resolve any dispute or claim arising out of or under the Agreement by negotiation in good faith before either party commences any litigation in relation to the dispute or claim. Accordingly, if a party considers that a dispute or claim has arisen under the Agreement they must give written notice to the other party adequately setting out and providing details of the dispute.
9.2 Right Media and the Client must meet within ten (10) Business Days of the giving of a notice pursuant to clause 9.1 to attempt to resolve the dispute or claim or to agree on methods of doing so. The parties must be represented at the meeting by a person with authority to agree to a resolution of the dispute.
9.3 If the dispute is resolved the parties must write down the resolution and sign it.
9.4 The parties agree that anything done or said in the negotiations cannot be revealed in any other proceedings.
9.5 Nothing in this clause prevents either party from commencing urgent injunctive or interlocutory proceedings in a competent Court or affects Right Media’s right to take recovery action in relation to any overdue Account.
10. Default & Termination of Contract
10.1 Right Media may terminate this Agreement at any time by giving the Client 30 days written notice at the absolute discretion of Right Media.
10.2 If Right Media terminates this Agreement under clause 10.1, Right Media will refund to the Client any Monthly Retainer paid by the Client on a pro rata basis.
10.3 Without limiting clause 10.4, a party may terminate the Agreement if:
(a) he other party is in default of the Agreement,
(b)the non-defaulting party has served notice in writing on the party setting out details of the default and stating that the party will be entitled to terminate the Agreement unless the default is remedied within a specified time of not less than 14 days,
(c)the party fails to remedy the default within 14 days of receiving a notice under clause10.3(b),or such longer period as may be specified in the notice, and
(d)the non-defaulting party serves written notice of termination whilst the default remains unsatisfied.
10.4 If the Client fails to pay any money under the Agreement within seven (7) days of the due date for payment:
(a) Right Media may terminate the Agreement by notice in writing to the Client,
(b) Right Media shall be entitled to interest on the outstanding amount at the rate of 2.5% per calendar month calculated daily from the due date for payment and compounding monthly on the first day of each month until payment is received,
(c) the Client shall indemnity Right Media from and against all costs and disbursements incurred or payable by Right Media in connection with the recovery of monies owing by Right Media (including, without limitation, legal fees on an indemnity basis, collection agency costs and bank dishonour fees), and
(d) Right Media may cancel all or any part of the Services or Services in connection with any other contract or contracts made with the Client to which these terms and conditions apply whereafter all amounts payable by the Client to Right Media shall became payable immediately.
10.5 The Client agrees to pay to Right Media, as genuine pre-estimate of Right Media costs:
(a) a processing and handling fee of $20.00 in respect of each payment made under the Agreement that is not in satisfaction, or in satisfaction of the balance, of an Account, and
( b) a default fee of $50.00 in respect of any failure by the Client to pay an Account by the due date for payment or by the corresponding day of each subsequent calendar month until the Account is paid in full.
10.6 The Client acknowledges that due to the nature of the internet, certain information posted about the Client during the course of providing the Services may continue to be available on the internet following termination of the Agreement. Clauses 4, 11, 12, 13, 14 and 18 will survive termination of this Agreement.
11. Warranties & Representations
11.1 Except as expressly provided to the contrary in the Order, Order or elsewhere in these terms and conditions, all representations, warranties, guarantees and conditions in relation to the Services (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
11.2 If the Client is aware (or should be aware) that the Services are for a particular purpose, the Client agrees to clearly specify that purpose in writing in the Order.
11.3 The Client warrants that it has made its own enquiries in relation to the suitability of the Services and has not relied on any representation made by Right Media in relation to their suitability for any particular purpose.
11.4 Right Media provides the Services without any warranty or guarantee of continuous or uninterrupted availability. If the Services are delayed or interrupted whatsoever, Right Media’s only obligation will be to restore the Services as soon as reasonably possible.
11.5 Right Media makes no warranty or guarantee in respect of the Services to the performance of any campaign or any Service provided by Right Media.
11.6 Right Media does not warrant, guarantee or endorse for any product or service advertised or offered by any third party in relation to the provision of the Services.
12. Third-Party Websites & Obligations
12.1 The Client authorises Right Media to:
(a) post content on third party sites, such as Facebook, Linkedin and other social media sites, in relation to providing the Services, and
(b) enter into, on behalf of the Client, relationships with third party sites.
12.2 The Client agrees to be bound by the terms and conditions of any third party site Right Media enters into a relationship with in accordance with clause 12.1 above.
12.3 Any content Right Media provides to or posts on any third party site will be subject to the relevant third party site’s terms and conditions and the Client authorises Right Media to:
(a) publish on the Current Website content related to the provision of the Services, and (b) monitor the internet for mentions of the Client.
12.4 Right Media may create, publish and distribute marketing and promotional content for the Client (“Marketing Content”).
12.5 Right Media will not be responsible or liable for any loss or damage incurred by the Client in relation to the Marketing Content.
12.6 The Client authorises Right Media to do all things reasonable necessary to perform Right Media obligations under this Agreement including, without limitation:
(a) submitting and managing the Marketing Content on or through third party sites,
(b) establishing or assuming control of relationships on the Client’s behalf with third party sites,
(c) registering the Client with third party sites,
(d) generating or storing passwords for third party sites, and
(e) using the functionality of third party sites on the Client’s behalf.
13. Compatibility, Integration & Updates
13.1 Right Media will use its best endeavors to ensure the Services will be compatible with industry supported browser technology. Right Media provides no guarantee that the Services will function on future browser versions.
13.2 Any integration of the Services with third party software or plugins will only be provided for the current versions of the third party software or plugins. Right Media provides no guarantee that the Services will function on future versions of third party software or plugins.
13.3 Right Media will use its best endeavors to ensure the Services will be compatible with industry supported content management systems. Right Media provides no guarantee that the Services will function on future versions of content management systems.
13.4 If the Client requests Right Media to perform works to address compatibility, integration or update issues as set out in this clause 13, the said work will constitute Custom Services and Right Media’s Custom Services Fees will apply.
14. Limitation of Liability
14.1 Unless the Order specifies otherwise, Right Media disclaims any assumption of responsibility for reliance on the Services or any document:
(a) by any party other than the Client, and
(b)for any purpose other than the purpose for which the document was prepared.
14.2 To the maximum extent permitted by the law, Right Media excludes all liability for any:
(a) errors, mistakes or inaccuracies in information,
(b) personal injury or property damage as a result of access to or the use of the Services,
(c)unauthorized access to Right Media’s servers or systems including Right Media’s company information,
(d) interruption of transmission of the Services,
(e) computer or technical bugs, viruses, trojan programs or the like that may be transmitted through the provision of the Services by any third party, and
(f) loss or damage, of any kind as a result of the posting of any information or emails sent in providing the Services.
14.3 Right Media’s liability to the Client (and any party claiming through the Client against Right Media) for any claim for loss or damage (including legal expenses), whether arising in contract, tort or otherwise, in connection with the Agreement shall be limited to the lesser of the costs of:
(a) supplying the Services again, or
(b) payment of the costs of having the Services supplied again.
14.4 Right Media shall not be liable for any unauthorised release or sharing of any content relating to the Services that may be disclosed or released by any third party engaged by Right Media during the course of providing the Services.
14.5 Right Media shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the carrying out of the Services.
15. Guarantee
15.1 In consideration for Right Media entering into the Agreement, the Guarantor guarantees to Right Media the performance by the Client of all of the Client’s obligations under the Agreement including any Variation.
15.2 If the Client does not pay any money due under the Agreement the Guarantor must pay that money to Right Media on demand without deduction, set-off or counterclaim even if Right Media has not tried to recover payment from the Client.
15.3 Even if Right Media gives the Client extra time to comply with an obligation under the Agreement or does not insist on strict compliance with the terms of the Agreement the Guarantor’s obligations will not be affected.
15.4 Where a payment made by the Client or the Guarantor to Right Media is set aside by law, the parties are restored to their respective positions prior to the payment being made and are entitled to exercise all rights which they had under the Agreement.
15.5 If there is more than one (1) Guarantor:
(a) this guarantee shall be binding on each of them jointly and severally, and
(b) the release by Right Media of any Guarantor from this guarantee does not affect the liability of any other Guarantor.
15.6 The Guarantor’s liability under this clause is continuing and unlimited.
16. Personal Property Security
16.1 In this clause ‘attaches’, ‘financing statement’, ‘financing change statement’, ‘personal property’, ‘security Agreement’, ‘security interest’ and ‘verification statement’ have the meanings given to them by the PPSA.
16.2 The Client and the Guarantor, if any, hereby charge all their respective interest in their personal property as security for the performance by the Client of the Client’s obligations under the Agreement.
16.3 The Client acknowledges and agrees that:
(a) the Agreement constitutes a security agreement for the purposes of the PPSA,
(b) a security interest exists in all of the Client’s existing and future personal property (and their proceeds), and
(c) Right Media has not agreed to postpone the time the security interest attaches to the Client’s personal property.
16.4 The Client shall:
(a) promptly sign all documents and provide any further information that Right Media may reasonably require to register a financing statement or financing change statement in relation to a security interest granted to Right Media under the Agreement or any other document required to be registered under the PPSA, and
(b) on demand reimburse Right Media for all costs and expenses incurred in registering a financing statement or financing change statement.
16.5 The Client irrevocably appoints Right Media as the Client’ true and lawful attorney for the purpose of performing all acts and signing all documents necessary to give effect to this clause.
16.6 Any requirement under the PPSA on the part of Right Media to give a notice to the Client or any Guarantor shall not, to the extent that the requirement may be contracted out of (including, without limitation, under Section 115(1) of the PPSA), apply to the Agreement. Further, to the extent that that the Client and/or the Guarantor may waive the right to receive a notice under the PPSA (including, without limitation, notice in relation to a verification statement under Section 157(1) of the PPSA), the Client and the Guarantor waives that right.
16.7 The Client irrevocably authorises and licenses Right Media to enter upon the Client’s property or premises, without notice, and without being in any way liable to the Client, if Right Media has cause to exercise any of Right Media’s rights under Section 123 of the PPSA, and the Client shall indemnify Right Media from any claims made by any third party as a result of such exercise.
16.8 Right Media and the Client agree to treat information of the kind referred to in Section 275(1) of the PPSA as confidential. Neither Right Media or the Client will disclose, send or make available any of the information referred to in Section 275(1) of the PPSA to any person except as required by law or the Agreement.
16.9 Right Media and the Client acknowledge and agree that clause 16.8 constitutes a confidentiality Agreement pursuant to Section 275(6) of the PPSA.
17. Real Property Security
17.1 The Client and the Guarantor, if any, hereby charges all their right, title and interest in any real property capable of being charged that they, or any of them, own or hereafter own either solely or jointly, in favour of Right Media as security for the performance of the Client’s obligations pursuant to the Agreement and authorises Right Media to register a Caveat over the title of any such property in the event of a default by the Client under the Agreement.
17.2 The Client shall indemnify Right Media from and against all costs and disbursements incurred or payable by Right Media in connection with exercise of Right Media’s rights under clause 17.1 (including, without limitation, legal fees on an indemnity basis, stamp duty and registration fees).
18. Intellectual Property
18.1 Where Right Media has designed, drawn or developed unique and/or original works, designs or drawings in connection with the Services, copyright in such works, designs or drawings shall vest in Right Media.
18.2 The Client warrants that Right Media is entitled to use all documents and drawings provided by the Client for the purposes of providing the Services and that such use will not infringe any third party’s intellectual property rights.
18.3 The Client shall indemnify Right Media from and against all claims and all losses and damages incurred by Right Media as a consequence of any claim against Right Media for infringement of a third party’s intellectual property rights in connection with the provision of the Services in accordance with a document that is; supplied by, prepared under the instruction of, or prepared from sketches provided by, the Client.
18.4 The Client authorises Right Media to use any documents, designs, drawings or goods that Right Media has created for the Client including photographs thereof for the purposes of marketing Right Media’s business or entry into any competition.
19. Agency
19.1 If the Client is purchasing advertising on behalf of another company or individual, the Client represents that it has the authority of the company or individual to act as its agent in all respects of this Agreement including, without limitation:
(a) the making of any elections or giving of consents, and
(b) that the company or individual has been made aware of the Agreement.
19.2 The Client and the company or individual shall be jointly and severally liable for the fulfillment of obligations under this Agreement, including all payment obligations.
20. Subcontracting & Assignment
20.1 Right Media may subcontract the whole or any part of the Services but remains responsible for all of the Services.
20.2 Right Media may assign the Agreement to any person. In the event of the assignment the Client may, if it has reasonable grounds to believe that the assignee will not comply with the Agreement, within seven (7) days of receiving notice of the assignment terminate the Agreement by 30 days written notice to Right Media whereafter the termination will be effective unless the assignment is withdrawn.
21. Cancellation
21.1 Notwithstanding any other clause herein Right Media may cancel any agreement to which these terms and conditions apply at any time before the Services are commenced by giving written notice to the Client whereafter any deposit or other amount paid by the Client on account of the Services shall become immediately repayable to the Client. Right Media shall not be liable for any consequential loss or damage in relation to any such cancellation.
21.2 If the Client purports to cancel the Agreement, without limiting any other right available to Right Media, the Client shall be liable to Right Media for any and all loss or damage suffered by Right Media in connection with the cancellation including, without limitation, loss of profit in respect of the Services and/or loss of profits in respect of orders and opportunities foregone as a result of the scheduling of the Services.
22. Privacy Act 1988 (Cth)
22.1 The Client and the Guarantor, if any, consent to Right Media obtaining a Credit Report from a credit reporting agency in relation to the Client and the Guarantor respectively for the purpose of:
(a) assessing the creditworthiness of the Client, and
(b) the collection of payments that are overdue in respect of commercial credit.
22.2 The Client and the Guarantor, if any, agree that Right Media may exchange information about the Client and the Guarantor with those credit providers either named as trade referees by the Client or named in a Credit Report issued by a credit reporting agency for the following purposes:
(a) to assess an application for commercial credit by the Client,
(b) to notify other credit providers of a default by the Client,
(c) to exchange information with other credit providers, where the Client is in default with other credit providers, and (d) to assess the creditworthiness of the Client.
22.3 The Client and the Guarantor, if any, consent to Right Media using any personal information collected by Right Media for the following purposes or as required by law:
(a) the performance of the Services,
(b) the marketing of the supply of Services by Right Media,
(c) the analysing, verifying and checking of the Client’s credit and/or payment status in relation to the performance of the Services,
(d) the processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and
(e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the performance of the Services.
22.4 Right Media may give information about the Client and the Guarantor to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Client and/or the Guarantor, or (b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Client and/or the Guarantor.
23. GST
23.1 The Fees and all other monies payable by the Client pursuant to the Agreement are exclusive of GST.
23.2 If Right Media incurs a liability to pay GST in connection with a supply to the Client pursuant to the Agreement, the consideration that the Client must pay to Right Media for the supply is increased by an amount equal to the GST liability that Right Media incurs in making the supply and the amount of the GST liability is payable at the same time and in the same manner as the consideration in respect of the supply is payable.
23.3 Right Media shall provide the Client with a tax invoice for any GST included in any payment made pursuant to the Agreement.
24. Notices
24.1 The parties agree that email shall be the primary method of contact and communication in relation to any matters arising under the Agreement.
24.2 A notice is deemed to have been given or serviced if the notice is:
(a) delivered by hand to the other party,
(b)
posted by ordinary prepaid mail to the other party’s address (including a Post Office Box) stated in the Order or Order on the second Business Day following the date of posting, or (c)sent by facsimile transmission to the parties’ facsimile number stated in the Order or Order upon receiving confirmation of delivery of the transmission, or
sent by email to the parties’ email address stated in the Order or Order upon receiving confirmation of delivery of the email without error.
25. General
25.1 Payments may only be made by cash, bank cheque, electronic funds transfer, direct debit or credit card (unless Right Media agrees otherwise in relation to a payment). The Client agrees to pay a surcharge equal to 2.5% in respect any payment made via credit card.
25.2 The Client may not; (a) set off against or deduct from any monies payable under the Agreement any sums owed or claimed to be owed by Right Media to the Client, or (b) withhold payment of any Account because the Account or part of it is in dispute.
25.3 The Agreement embodies the whole agreement between the parties relating to the subject matter of the Agreement and supersedes any and all oral and written negotiations and communications by or on behalf of any of the parties.
25.4 The terms in the Agreement may not be varied, waived, discharged or released, except with the prior written consent of the parties.
25.5 No right under the Agreement is waived or deemed to have been waived in relation to any particular instance unless in writing and signed by the party waiving the right. A party does not waive its right under the Agreement by granting an extension of time or any other forbearance to another party.
25.6 The Agreement shall be governed by and constructed pursuant to the laws of the State or Territory in which the Order is received. The parties irrevocably submit to the jurisdiction of the Courts of that State or Territory in connection with any dispute relating to the Agreement. The parties further agree that the Court of competent jurisdiction located closest to Right Media’s principal place of business in the relevant State or Territory shall be the appropriate Court for the hearing of any claims in connection with this Agreement.
25.7 The parties agree that a construction of the Agreement that results in all provisions being enforceable is to be preferred to a construction that does not so result.
25.8 If, despite the application of clause 25.7, a provision of the Agreement is illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; and
(b) in any other case, the whole provision is severed, and the remainder of the Agreement continues in force.
26. Definitions & Interpretation
26.1 In these terms and conditions:
(a) “Acceptance” means the acceptance document signed or accepted by the Client in relation to the Order and these terms and conditions;
(b) “Account” means both a statement of the Fees claimed to be due to Right Media under the Agreement and a tax invoice as defined in the A New Tax System (Goods and Services Tax) Act 1999;
(c) “Agreement” means the agreement between the Client and Right Media arising from the Client’s acceptance of Right Media’s offer comprised by the Order;
(d) “Authority” means the Local Government, State or Federal Government, or any Government agency that has power to affect the Services;
(e) “Business Day” means any day other than Saturdays, Sundays or public holidays;
(f) “Client” means the party named as the Client or customer in the Order;
(g) “CustomServices”meansanyadditionalservicesthatarerequestedoutsidethescopeoftheServicesorwherenootherpricehasbeenagreedbetween the parties for the Services;
(h) “Custom Services Fees” means the fees for Custom Services that will be charged at Right Media’s prevailing hourly rates as varied from time to time;
(i) “Current Website” means the Client’s website(s) as at the commencement of this Agreement;
(j) “Right Media” means Right Media Pty Limited ACN 608 102 718 trading as Right Media, it’s successors and assigns;
(k) “Exclusions”means the exclusions described in the Order;
(l) “Fees” means the:
(i) Set Up Fee, (ii) Monthly Retainer ,and (iii) Custom Services Fees.
(m) “GST” has the same meaning as given to it in the A New Tax System (Goods and Services Tax) Act 1999.
(n) “Guarantor” means the person or persons who have signed the Order as Guarantor and includes their executors, administrators, successors and assigns;
(o) “Monthly Retainer” means the amount or rates stated as the monthly retainer in the Order and will be:
(i) charged in advance, and
(ii)calculated on a prorate basis for any part of the Term commenced before the first day of the calendar month;
(p) “Order” means the proposal, if any, provided by Right Media to the Client in respect of the Services;
(q) “PPSA” means the Personal Property Securities Act 2009 (Cth);
(r) “Set Up Fee” means the amount or rates stated as the Set Up Fee in the Order;
(s) “Services” means the services described in the Order and includes Variations but excludes the Exclusions.
(t) “Term” means the term specified in the Order;
(u) “Third Party Partners” means any party that Right Media has a relationship with or commercial agreement within the industry that the Services relate;
(v) “Variation” means to vary the Services by; carrying out additional work, omitting any part of the Services or changing the scope of the Services and includes Custom Services Fees.
26.2 In the Agreement, unless otherwise indicated by the context: (a) the singular includes the plural and vice versa; (b) a reference to one gender includes a reference to all other genders; (c) headings to clauses are included for the sake of convenience only and will not affect the interpretation of the clauses to which they relate; (d) references to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any Orders, regulations, instruments or other subordinate legislation made under the relevant statute; (e) the word person means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not; (f) the Agreement will bind each party’s legal personal representatives, successors and assigns; and (g) where a party comprises two (2) or more persons the rights and obligations of such persons pursuant to the Agreement will ensue for the benefit of and bind each of them jointly and severally.