RESELLER TERMS & CONDITIONS

TERMS AND CONDITIONS AND AGREEMENT between 1st Place Design Pty Ltd, Unit 2, 5 Church St, Bellingen 2454 in the State of New South Wales, Australia, AND THE Applicant (Reseller).

1. INTERPRETATION

1.1 Definitions In this Agreement unless the context otherwise requires:

“Agreement” means this Agreement.

“Business Day” means any day on which trading banks are open for business in New South Wales.

“Client File” means a password-protected web-based admin panel visible to the Reseller’s staff and detailing all Customer data and the Proof of Achievement information as required in the Service Levels.

“Commencement Date” means the date of this Agreement.

“Confidential Information” means without limitation, trade secrets, information (including financial information, market information, commercial information and other information), customer lists, supplier lists, employee, contractor or agent details, ideas, concepts, know-how, technology, process formulae, software, drawings, forms, interfaces, templates, knowledge and similar information, samples, devices, demonstrations and other materials of whatever description whether subject to or protected by copyright, patent, trademark registered or unregistered or otherwise, Intellectual Property Rights or 1PD Material which is designated as confidential or which by its nature is confidential or which is disclosed in circumstances importing an obligation of confidence, disclosed or communicated directly or indirectly (whether in writing or orally) before and after the date of this Agreement by one party to the other.

“Customer” means a person or business with an account with the Reseller.

“GST” has the meaning given to that term in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) and any regulation made under that Act.

“GST Act” means A New Tax System (Goods & Services Tax) Act 1999 (Cth).

“Initial Term” means the Initial Term of 12 Months. 1PD and the Reseller may agree to a different Initial Term.

“Intellectual Property” means all rights, including the right to apply for registration, with respect to any creative effort resulting from intellectual activity in industrial, scientific, literary, artistic or any other fields, including but not limited to patents, patentable inventions, registered and unregistered trade marks (including service marks), copyright, circuit layouts, registered designs, registrable designs, plant variety rights, trade secrets, models, drawings, specifications, prototypes, software, HTML information and Confidential Information and “Intellectual Property Rights” shall have a corresponding meaning.

“Renewal Term” means the Renewal Term of 6 Months. 1PD and the Reseller may agree to a different Renewal Term.

“Reseller Associated Services” means other web-based services provided by the Reseller.

“Related Body Corporate” has the same meaning as in the Corporations Act 2001 (Cth).

“Reseller Manager” means such person appointed by the Reseller, as notified to 1PD from time to time, to manage the Reseller’s relationship with 1PD and this Agreement.

“Reseller Website” means the universal resource link notified by the Reseller to 1PD from time to time.

“Search Marketing Service” means search engine marketing products and associated services provided by 1PD.

“Service Fee” means the Service Fee allocated to the Reseller, based on the average number of units they are purchasing on a monthly basis. These rates will be provided to the Reseller before sign up.

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

“Term” means the Initial Term and any Renewal Term(s) combined. “Terms and Conditions” means these terms and conditions.

“Unit” is a measure of value allocated to the Services provided by 1PD. The Unit amounts vary with each Service.

“1PD Manager” means such person appointed by 1PD, as notified to the Reseller from time to time, to manage 1PD’s relationship with the Reseller and this Agreement.

“1PD Material” means any material provided by 1PD to the Reseller for the purposes of this Agreement or which is copied or derived from material so provided.

“1PD Website” means http://www.1stplacedesign.com.au or any other universal resource link notified by 1PD to the Reseller from time to time.

1.2 Interpretation
Unless expressed to the contrary:
(a) words importing the singular include the plural and vice versa, and words importing any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases have corresponding definitions;
(c) a reference to:
(i) a person includes a partnership, unincorporated association, corporation and a government or statutory body or authority;
(ii) a person includes its legal personal representatives, successors and assigns;
(iii) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(iv) a right includes a benefit, remedy, discretion, authority or power;
(v) an obligation includes a warranty, indemnity or representation and a reference to a failure to observe or perform an obligation includes a breach of a warranty, indemnity or representation;
(vi) where any word or phrase is given a defined meaning in this Agreement, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;
(vii) this Agreement or any other instrument, policy or document includes this Agreement, instrument, policy or document as varied, amended, modified or replaced, notwithstanding any change in the identity of the parties;
(viii) any authorities, associations, bodies and entities whether statutory or otherwise shall, in the event of such authority, association, body or entity ceasing to exist or being reconstituted, replaced or the powers or functions thereof being transferred to or taken over by any other authority, association, body or entity, be deemed to refer respectively to the authority, association, body or entity established, constituted or substituted in lieu thereof or which exercises substantially the same powers or functions in lieu thereof;
(d) any covenant, agreement, warranty or indemnity on the part or for the benefit of two or more persons shall bind them and be for the benefit of them jointly and severally respectively;
(e) “$” or “dollars” is a reference to the lawful currency of Australia;
(f) any thing (including, without limitation, any amount) is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them;
(g) “including” and similar expressions are not words of limitation;
(h) a month means a calendar month;
(i) this Agreement includes the front page, the Terms and Conditions and all schedules, exhibits, annexures, appendices and similar documents, including the Service Levels, referred to in this Agreement;
(j) writing includes any mode of representing or reproducing words in tangible and permanently visible form and includes facsimile transmissions;
(k) any term defined in the statement of names and descriptions of the parties has the meaning there defined; and
(l) nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or any part of it.

1.3 Headings
Clause headings do not affect the interpretation of this Agreement.

1.4 Business Day
If any amount payable under or pursuant to this Agreement is to be paid on a day which is not a business day in the place where the payment originates, the amount may be paid on the next business day in that place.

2. TERM

2.1 The Initial Term commences on the Commencement Date and will continue unless terminated in accordance with Clause 12.

2.2 At the end of the Initial Term, this Agreement will automatically be renewed for further Renewal Terms unless terminated in accordance with Clause 12.

3. SERVICES AND OBLIGATIONS

3.1 1PD shall:
(a) provide the Search Marketing Services as outlined on the 1PD Website;
(b) list the Reseller as a reseller on the 1PD Website and provide a link to the Reseller’s Website;

4. SERVICE FEES

4.1 1PD will invoice the Reseller for the Service Fees for each Customer taking the Search Marketing Services respectively on the 1st day of each month following the Commencement Date. The invoice will provide details of all Customers that will be taking the Services respectively during the relevant month.

4.2 The Reseller authorises either their credit card or bank account to be debited with Account Management Fees. The Reseller authorises 1PD to debit their credit card or bank account with such account charges and fees as are due and payable at that time, using this authority until revoked.

4.3 The provision by 1PD of the Services is contingent upon our having received payment in full from the Reseller in respect of the relevant Services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, 1PD reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to the Reseller.

4.4 If the Reseller fails to make payment within the terms of this agreement, they will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate matching the Genral Interest Charge (GIC), from the due date of the payment.

5. CUSTOMER DISPUTES AND REFUNDS

5.1 1PD shall refund the Service Fees in respect of a Customer in the following circumstances:
(a) 1PD fails to adhere to the requisite service levels as defined in the Service Levels for that Customer; or
(b) both parties agree that the results obtained for that Customer are not satisfactory.

6. FORECASTS

The Reseller will use its best endeavours to identify sales and marketing opportunities for Customers and prospects in respect of the Search Marketing Service.

7. MUTUAL UNDERTAKINGS

7.1 Each party undertakes to:
(a) use the 1PD Manager and the Reseller Manager as each respective party’s first point of contact with respect to all Customer matters and matters relating to this Agreement;
(b) maintain open and effective channels of communication through the 1PD Manager and the Reseller Manager;
(c) provide all information and assistance reasonably requested by the other party to allow the other party to perform its obligations under this Agreement;
(d) provide to the other party, free of charge, such product and Customer information as the other party regards is reasonably necessary to enable it to perform its obligations under this Agreement; and
(e) ensure that the other party is informed and is kept up to date on the details of its products and services including its relevant promotional activities.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 All Intellectual Property Rights of either party shall be the sole property of that party.

8.2 Ownership of all 1PD Material remains vested at all times in 1PD. The Reseller shall ensure that the 1PD Material is used, copied, supplied or reproduced only for the purpose of this Agreement strictly in accordance with any conditions or restrictions imposed in writing by 1PD. Upon the termination of this Agreement, the Reseller shall return to 1PD all 1PD Material remaining in its possession.

9. CONFIDENTIALITY

9.1 Each party to this Agreement, will not, without the prior written approval of the other party, disclose the other party’s Confidential Information to any third party.

9.2 A party will not use, and will ensure that its directors, officers, employees, agents and representatives do not use, Confidential Information other than for the purposes for which it is disclosed to it.

9.3 Each party shall, on the written request from the other party, deliver to the party making that request all Confidential Information of that party which is at the time of the request in a recorded form, and which is in that party’s possession or control.

9.4 Each party shall assume responsibility for the actions of its directors, employees, agents and representatives who have access to the Confidential Information from time to time and shall ensure that they are aware of and strictly bound by the confidentiality obligations created under this Agreement.

9.5 Confidential Information shall not include information that:
(a) at the time of disclosure is or thereafter becomes a part of the public domain through no act or error of the receiving party;
(b) is received by a party from a third party lawfully in possession thereof and who has the lawful power to disclose such Confidential Information to the receiving party;
(c) is officially approved in writing for release by the disclosing party;
(d) was otherwise in the lawful possession of the receiving party prior to disclosure as shown by competent evidence; or
(e) is required to be disclosed pursuant to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange provided, however, that the receiving party shall advise the disclosing party of such required disclosure promptly upon learning thereof in order to afford the disclosing party a reasonable opportunity to contest, limit and/or assist the receiving party in preparing such disclosure.

9.6 The party intending to rely on any of the exceptions stated in Clause 10.5 shall bear the onus of proof that the exception applies.

9.7 The confidentiality obligations under this Agreement shall remain in force both during and after the termination or expiry of this Agreement.

9.8 Confidential Information directly communicated by the disclosing party’s directors, officers, employees, agents or representatives to the receiving party shall be deemed to be Confidential Information belonging to the disclosing party for the purpose of this Agreement.

9.9 Neither party will disclose all or part of the contents of this Agreement without the prior written approval of the other party.

9.10 Neither party shall use the other party’s name in any advertising or other promotional material without the prior written permission of the other party.

9.11 Confidential Information includes Confidential Information belonging to a Related Body Corporate of a party.

10. WARRANTIES

10.1 Each party represents and warrants to the other party that at the time of entering into this Agreement:
(a) it has full and corporate power to execute, deliver and perform its obligations under this Agreement;
(b) this Agreement and any schedules and attachments constitute a legal, binding and enforceable obligation on it in accordance with its terms;
(c) there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware and that may have a material effect on the subject matter of this Agreement; and
(d) it has all licences, authorisations, consents, approvals and permits required by all applicable laws and regulations in order to perform its obligations under this Agreement.

10.2 Each party warrants that it will carry out its obligations under this Agreement: (a) with due care and skill and to the best of its knowledge and expertise; and (b) in compliance with all applicable laws, regulations and industry codes.

10.3 Each party warrants that it shall not knowingly infringe the Intellectual Property Rights of the other or any third party.

11. TERMINATION

11.1 Either party may terminate this Agreement (including during any negotiations with a Customer) by written notice effective immediately if:
(a) the other party breaches a term of this Agreement and such breach remains unremedied after 14 days of receipt of a written notice from the other party, setting out the breach and the action required to remedy the breach;
(b) an order is made for the bankruptcy, winding up or dissolution of the other party;
(c) a receiver or receiver and manager, official manager, trustee, provisional liquidator, liquidator, controller, administrator or similar officer is appointed in respect of the other party or in respect of all or any part of the assets or undertaking of the other party;
(d) the other party enters into, or resolves to enter into, an arrangement, composition or compromise with, or assignment for, the benefit of its creditors generally, or any class of creditors or proceedings are commenced to sanction such an arrangement, composition or compromise, except for the purposes of a restructure; or
(e) the other party is taken to have failed to comply with a statutory demand.

11.2 Either party may terminate this Agreement by giving 6 months prior written notice to the other party during the Initial Term or any Renewal Term PROVIDED THAT such a notice shall not operate to terminate this Agreement prior to the expiry of the Initial Term.

11.3 This Agreement may be terminated at any time by mutual written agreement between the parties.

11.4 On termination of this Agreement: (a) neither party will represent to members of the public that its business has any affiliation with or approval from the other party; (b) each party shall cease to use the Intellectual Property Rights of the other; and (c) each party shall return to the other all Confidential Information of the other in that party’s possession or control.

11.5 Termination or expiry of this Agreement shall be without prejudice to the rights and obligations of the parties accrued at the time of termination or expiry.

12. INDEMNITY

12.1 Notwithstanding any other provision of this Agreement neither party shall be liable to the other by way of indemnity or by reason of any breach of contract or statutory duty or by reason of tort (including but not limited to negligence) for consequential, indirect or special damages whatsoever that may be suffered by the other, including, but not limited to, loss of business profits, anticipatory profits, business interruption or loss of business information.

12.2 Each party, to the extent permitted by law:
(a) excludes all conditions and warranties implied into this Agreement; and
(b) limits its liability for breach of any such condition or warranty that it cannot exclude to the greater of: (i) resupplying the services; or (ii) paying the cost of having the services resupplied.

12.3 Each party is responsible for:
(a) deducting PAYE tax and the superannuation guarantee levy from the wages or salaries of its employees; and
(b) all payments (of whatever nature, including, but not limited to, wages or salaries and workers compensation) to its employees.

12.4 Each party indemnifies the other and its respective directors, officers and employees from and against any and all liability, loss, harm, damage, cost or expense (including legal fees) howsoever arising that they, or any of them may suffer, incur or sustain as a result of a breach of their obligation in this Clause 13.

13. INSURANCE

Each party shall, for so long as any obligations remain in connection with this Agreement, effect and maintain insurance (including, but not limited to, public liability and employer’s liability insurances) with respect to any liabilities which may arise out of or in connection with this Agreement and any other insurances required by law. Each party shall provide the other with a certificate of currency of each policy of insurance upon request by the other party.

14. EXERCISE OF RIGHTS

14.1 A party may exercise a right, at its discretion, and separately or concurrently with another right.

14.2 A single or partial exercise of a right by a party does not prevent a further exercise of that or of any other right.

14.3 Failure by a party to exercise or delay in exercising a right does not prevent its exercise.

15. ASSIGNMENT

15.1 The Reseller shall not assign, or subcontract its obligations under, this Agreement in whole or in part without 1PD’s prior written consent.

16.2 1PD may assign, or subcontract its obligations under, this Agreement without the consent of the Reseller PROVIDED THAT 1PD shall be responsible for any of its obligations which may be subcontracted under this Clause 16.2.

16.3 This Agreement is binding upon and enures for the benefit of the parties and their respective permitted successors and assigns.

17. REMEDIES CUMULATIVE

The rights provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.

18. GOVERNING LAW

This Agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales and the parties, by entering into this Agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.

19. NOTICES

19.1 General A notice, demand, certification or other communication under this Agreement:
(a) shall be given in writing and in the English language; and
(b) may be given by an agent of the sender.

19.2 Method of Service In addition to any means authorised by law a communication may by given by:
(a) being delivered personally;
(b) being left at the party’s current address for service;
(c) being sent to the party’s current address for service by pre-paid ordinary mail or if the address is outside Australia, by pre-paid air mail; or
(d) facsimile to the party’s current facsimile number.

19.3 Address for Service
(a) The address, telephone and facsimile numbers are initially:
(i) in the case of 1PD: Address: 2/5 Church St Bellingen NSW 2454 Telephone: (02) 8014 8653 Facsimile: (02) 6699 1068
(ii) in the case of the Reseller the contact details provided to 1PD for this Agreement.
(b) A party may from time to time change its address or numbers for service by notice to the other party.

19.4 Service by Post A communication given by post shall be deemed received:
(a) if posted within Australia to an Australian address, on the third Business Day after posting; and
(b) in any other case, on the seventh Business Day after posting.

19.5 Service by Facsimile A communication given by facsimile shall be deemed received when the sender’s facsimile machine produces a transmission report stating that the facsimile was sent to the addressee’s facsimile number.

19.6 Form Received A communication given by facsimile shall be deemed given in the form transmitted unless the message is not fully received in legible form and the addressee immediately notifies the sender of that fact.

19.7 Process Service Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this Agreement may be served by any method contemplated by this Clause 19 in addition to any means authorised by law.

19.8 Service After Hours If a communication to a party is received by it: (a) after 5.00pm in the place of receipt; or (b) on any day which is not a Business Day, it will be deemed to have been received at the commencement of the next Business Day.

20. ADDITIONAL WARRANTIES

The parties severally warrant that:
(a) they have relied on their own enquiries and have not entered into this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement to that party by or on behalf of the other party otherwise then as has been set out in this Agreement; and
(b) they are aware that each other party is relying upon these warranties in executing this Agreement.

21. AMENDMENTS

This Agreement may not be modified, amended or otherwise varied except by a document in writing signed by or on behalf of each of the parties.

22. WAIVER AND VARIATION

22.1 No delay or failure by a party enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor any waiver of those rights operate as a waiver of a new subsequent breach. 22.2 Any provision or right under this Agreement may only be waived in writing signed by the party granting the waiver.

23. INVALIDITY

If the whole or any part of a provision of this Agreement is invalid or unenforceable in a jurisdiction it shall if possible be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement is not capable of being read down it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

24. CONSENT

A party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise.

25. MERGER

A party’s obligations under this Agreement exist beyond, and do not merge on, its termination or expiry.

26. ENFORCEMENT OF INDEMNITIES

A party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given. The party which recovered the payment under an indemnity will if requested by the other party provide evidence of the payment in respect of which the indemnity is given.

27. SURVIVAL OF INDEMNITIES

Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement.

28. ENTIRE AGREEMENT

This Agreement constitutes the whole agreement between the parties concerning the subject matter of this Agreement.

29. ATTORNEYS

Each person who executes this Agreement on behalf of a party declares that he/she has no notice of the revocation or suspension by the grantor or in any manner of the power of attorney under the authority of which he/she executes this Agreement.

30. GOODS AND SERVICES TAX (“GST”)

30.1 All consideration provided under this Agreement is exclusive of GST unless it is expressly stated otherwise.

30.2 If GST is payable by the supplier on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply.

30.3 The amount payable, if any, under Clause 30.2 shall be paid at the same time and in the same manner that the consideration for the supply is paid or provided under this Agreement.

30.4 The supplier shall provide to the recipient a tax invoice in accordance with the GST Act at or before the time that GST is payable by the recipient to the supplier under Clause 30.3.

30.5 Each party warrants at the “time of supply” as that term or its equivalent is defined in the GST Act, they will be registered under the GST Act. If one of the parties requests evidence of registration from the other, that party must make the request in writing and the party claiming to be registered will produce written evidence of such registration.

31. SPECIFIC PERFORMANCE

The parties agree that damages for breach of this Agreement may be inadequate and a party is entitled to specific performance or injunctive relief, or both in addition to damages.

32. RELATIONSHIP BETWEEN THE PARTIES

Both 1PD and the Reseller are independent contractors with respect to each other and nothing contained in this Agreement is intended to or will create an association, partnership, joint venture, employment or agency relationship between them.

33. ANNOUNCEMENTS

Neither party shall make any public announcement of any kind relating to the subject matter of this Agreement or the collaboration of the parties in relation to any customer or otherwise without the prior written consent of the other.