Acceptance Period has the meaning set forth in Section 3.4.
Change Order means a written, signed document by which The Client requests, or Born suggests, changes, modifications or amendments to an existing Estimation.
Born means Born Agency Pty Ltd, including all affiliated companies, directors, employees, contractors and third party service providers.
Born Design, Code and Data means design or code software, in object code form, and any data and/or tools created, acquired or licensed by or to Born either before or during the course of performing the Services for Client, and utilised in any manner by Born in performing the Services, and which are generally applicable to design, website or software development, and which are not specifically created, acquired or licensed by Born exclusively for The Client pursuant to the terms of a Estimation and or a Statement of Work. Born Design, Code and Data will be treated as Confidential Information in accordance with the terms hereof.
Client Works means artwork, drawings, audio visual works, text, graphics, audio and/or video files, and other works of authorship created by or on behalf of Born specifically and exclusively for The Client pursuant to the terms of an Estimation which distinguish the Deliverables from other works which Born has developed for itself or other clients, but will not include any Born owned intellectual property or Born Design, Code and Data.
Confidential Information means all information not generally known to the public, relating to each party’s business, in any form, including, but not limited to, all information that is produced or developed under this Agreement and/or in connection with an Estimation, regardless of whether such information or material is marked “Confidential” or “Proprietary” or by another similar marking. Confidential Information includes, but is not limited to, all information known by a party to be considered confidential and proprietary by the other party or from all relevant circumstances should reasonably be assumed by The Client or Born to be confidential and proprietary to the other, including, without limitation, trade secrets, inventions, technical processes and formulas, design methodologies and all financial matters pertaining to the business of Born. Confidential Information also includes any information set forth above which The Client or Born obtains from another party and which The Client or Born designates as Confidential Information. Copyright Limitation means any limitation of the copyright which Born is able to assign under clause 5.1.1, whether such limitation be in the nature of usage rights, time duration or geographic location.
Deliverables means all of the components set forth in each executed Estimation and which Born is expected to deliver to The Client, excluding Born Design, Code and Data.
Error means a bug or defect that is directly attributable to Born’s programming of a Deliverable, and which results in a repeated and repeatable malfunction of such Deliverable.
Estimation means a written description of the Services and Deliverables to be provided by Born to The Client.
Host means the entity, whether a third party or The Client, who will provide internet hosting services, including, but not limited to, use of the Host’s owned, leased or licensed telecommunication facilities, hardware and software which allow The Client’s web site or other Deliverables to be accessible by an Internet user.
Information means materials, images, audio and or video files, that The Client owns or is otherwise authorised to use.
Intellectual Property Rights means, on a world-wide basis, any and all now known or hereafter known tangible and intangible
(i) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works;
(ii) trademark and trade name rights and similar rights;
(iii) trade secret rights;
(iv) patents, designs, algorithms and other industrial property rights, and;
(v) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise.
RAW Footage means master footage recorded by Born as part of the provision of Services.
Statement of Work means the Web or Mobile Site or Application development document which defines and sets out in detail the Deliverables required for developing a web or mobile site or application based on the project objectives set out by The Client.
Services means the services to be provided by Born to The Client as set forth in each Estimation and or Statement of Work or Change Order.
Specifications means a detailed description included or referred to in an Estimation and or a Statement of Work of the features and functionality of a Deliverable.
Third Party Works means any third party “off-the-shelf” software, Information, or other materials incorporated by Born into a Deliverable as a component of the Deliverable.
Trademarks means the trademarks, service marks, trade names, trade dress, URLs, domain names, and other proprietary designs, and logos used or intended to be used by each party to identify or market its goods and/or services, as set forth in each executed Estimation and or Statement of Work.
Warranty Period has the meaning set forth in Section 7.3
In the agreement unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) reference to a thing (including, but not limited to, a chose-in-action or other right) includes a part of that thing;
(c) headings are for convenience only and do not affect the interpretation of the agreement.
2.1 Performance of Services
In consideration of payment by The Client of the fees set forth in each executed Estimation, Born will provide the Services and Deliverables set forth in each executed Estimation and or Statement of Work. Modifications or changes to an Estimation and or a Statement of Work will not be effective, and Born will have no obligation to perform any Services outside the scope of a Estimation and or Statement of Work unless agreed to by the parties, as evidenced by a Change Order or a new Estimation and or new Statement of Work executed by both parties.
2.2 Client’s Obligations
The Client will cooperate with Born in performance of the Services, and will be responsible for the following:
(a) The Client will deliver sufficient Information to Born to enable Born to perform the Services in accordance with the schedule set forth in each executed Estimation and or Statement of Work. If The Client elects to deliver additional Information to Born after the due date specified for delivery of Information in any applicable schedule, The Client must do so by submitting a Change Order in accordance with Section 2.3.
(b) The Client will designate a representative who is authorised to accept the Deliverables, as set forth in Section 3.4.
(c) If The Client is acting as the Host, The Client will maintain a log of any Errors experienced in the Deliverables and promptly make such log available to Born upon Born’s request.
(d) The Client will be responsible for obtaining any authorisations necessary for incorporating external hyperlinks to third party web sites from a Deliverable.
If The Client wishes to implement any changes or revisions that deviate in any material respect from the Specifications or the schedule set forth in any Estimation and or Statement of Work, The Client will submit a Change Order to Born specifying in detail such changes or revisions. Born will review the Change Order and promptly submit to The Client a written proposal for implementing such changes or revisions, including any price or schedule changes. The Client will have five (5) business days from receipt of Born’s proposal to accept or reject, in writing, such proposal. If The Client accepts Born’s proposal, the parties will execute a new Estimation for the changes requested by The Client. Born will not be responsible for any delays caused by the evaluation and execution of a Change Order, and any such delays will not be considered a breach of Born’s obligations under this Agreement.
2.4 Third Party Contractors
Born may employ the services of its affiliates or of third party contractors to provide any Services detailed in any Estimation and or Statement of Work; provided, that Born will remain responsible for the performance of each Estimation and or Statement of Work. If Born chooses to have certain Services performed by a subcontractor and/or affiliate, The Client will not contact or in any way interact directly with such subcontractor and/or affiliate regarding the Services without Born’s prior written consent.
2.5 Modifications by Clients
The parties agree that Born will be neither responsible nor liable for modifications of or any work relating to the Deliverables performed by The Client or by any third party not retained and compensated by Born.
3. DELIVERY, FORMAT AND ACCEPTANCE OF DELIVERABLES
3.1 Delivery & Format
(a) Born will use commercially reasonable efforts to deliver the Deliverables to The Client in accordance with the schedule set forth in the applicable Estimation and or Statement of Work; provided, that:
(i) this Agreement has not been terminated prior thereto, and;
(ii) there has not been an unremedied default by The Client.
(b) If any Deliverable is
(i) Photography; it will be supplied to The Client in full colour JPEG formats. If The Client requests any additional formats it will be treated as an additional deliverable and Born will provide a new Estimation to the The Client for approval.
(ii) Video or animation; it will be supplied to The Client in MP4 format. The Client requests any additional formats or to receive RAW footage of the Deliverable, it will be treated as an additional deliverable and Born will provide a new Estimation to the The Client for approval. Animation project are intellectual property of Born.
(iii) a web site, Born will be responsible for installation of such web site on its test server and for installation of the web site with The Client’s designated Host. The Client will obtain sufficient access for Born with such Host so that Born may perform such installation. To the extent that The Client cannot obtain necessary access to the Host, Born will be relieved of the responsibility for performing such installation until such access can be obtained by The Client, or if access is denied for an unreasonably long period, Born will be relieved of all obligation to install the web site with the Host.
Notwithstanding any other provision of this Agreement, and except as provided in a properly executed Estimation and or a Statement of Work, Born will not be responsible for;
(i) installation of upgrades to Third Party Works after hard launch;
(ii) installation of upgrades to Born Design, Code and Data, except as necessary during the applicable warranty period to correct an Error as provided in Section 7.11, and;
(iii) installation and configuration of network equipment on the Host¹s hosting premises.
3.3 Client Delays
If The Client has delayed Born’s performance for any reason including, without limiting the generality of the foregoing;
(i) failure to cooperate with or respond to a reasonable request of Born;
(ii) failure to timely provide the Information to Born;
(iii) failure to meet deadlines for approval of Deliverables, or;
(iv) requests from The Client for Change Orders, then the applicable schedule will be deemed modified to allow Born to deliver the Deliverables within a reasonable period from the date specified in the original Estimation and or Statement of Work, in light of The Client’s actions or omissions.
After Born’s delivery of a Deliverable to The Client, The Client will have up to seven (7) calendar days (or such other period as specified in the Estimation and or a Statement of Work) to review, test and evaluate the Deliverable during the Acceptance Period. The Client will accept the Deliverable by notifying Born in writing or, alternatively, will provide Born with written notice of material discrepancies between the Deliverable as delivered and the features and/or functionality of the Deliverable as set forth in the Estimation and Specifications, and request that Born correct such material discrepancies. Notwithstanding the foregoing, if the Deliverable contains all material features and functionality as set forth in the applicable Estimation and or a Statement of Work and Specifications, The Client will accept the Deliverable. If, at the end of any Acceptance Period, The Client has not accepted the Deliverable in writing or issued a request that Born correct material discrepancies, the Deliverable will be deemed to have been accepted by Client.
3.5 Correction of Deliverables
Born will notify The Client upon completion of the correction of any material discrepancies specified by The Client in accordance with Section 3.4. After Born so notifies The Client, The Client will have five (5) calendar days to review, test and evaluate the corrected Deliverable, unless the parties mutually agree to an alternative time period. Within such time period, so long as the previously specified discrepancies are substantially corrected, The Client will accept the Deliverable by notifying Born in writing. If the discrepancies are not corrected, The Client may elect to either;
(i) repeat the non-acceptance procedures set forth in Section 3.4, or;
(ii) terminate this Agreement as set forth in Section 9.
3.5 Artistic Licence
The Client acknowledges and agrees that editing of videos and the production of finished Deliverables may include elements of artistic expression and interpretation. Born reserves the right to use ‘Artistic Licence’ in the provision of any Service that requires editing or the production of a Deliverable.
4. PAYMENT & CANCELLATION
4.1 Service Fee Payments
In consideration of the Services provided and the rights granted by Born to The Client under this Agreement, The Client will pay Born the fees as set forth in any Estimation(s) and subsequent Invoice(s). Such fees will be exclusive of Born’s out-of-pocket costs and expenses incurred in the course of Born’s performance of its obligations hereunder. If The Client fails to make timely payments, Born may suspend the performance of Services and/or terminate the applicable Estimation and/or this Agreement as provided in Section 9.
4.2 Reimbursable Expenses
The Client will reimburse Born for out-of-pocket costs and expenses incurred by Born in performing the Services under this Agreement, including, but not limited to, the expenses relating to travel and office expenses incurred on behalf of Client (e.g. postage, messenger and delivery services and the like).
The Client will pay or reimburse Born for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Born under this Agreement, excluding income taxes which may be levied against Born.
4.4 Goods and Services Tax (GST)
(a) The price for the Supply of any goods, services or other things under this Agreement is stated as exclusive of GST.
(b) If GST is imposed on any Supply made pursuant to this Agreement, The Client must pay, in addition to the price, an amount calculated by multiplying the prevailing GST rate by the price. Subject to Section 4.4.4, any amount payable under this Section 4.4.2 is payable on the day that payment of the price (or part of the price) for the Supply that has given rise to the obligation to pay GST, is required pursuant to this Agreement.
(c) Born will comply with the provisions of Part V13 of the Trade Practices Act 1974 (Cth).
(d) Born must ensure that any invoice or other request or demand for payment of Supplies provided by it to The Client includes such information as would constitute a tax invoice under the relevant GST legislation or any Australian Tax Office (ATO) Public Ruling. No amount shall be due and payable by The Client in respect of any Supply under this Agreement unless The Client has received from the party making the Supply a tax invoice which complies with this Section 4.4.4.
(e) The parties agree to use reasonable efforts to do everything required by the relevant GST legislation or any ATO Public Ruling to enable or assist the other party to claim or verify any input tax credit, set off, rebate or refund in respect of any GST paid or payable in connection with Supplies under this Agreement.
(f) If any amount payable by The Client under this Agreement is calculated by reference to any cost, expense or other liability incurred by any person including Born, the cost for the purposes of that calculation shall be the amount of the cost actually incurred by the relevant party less the amount of any input tax credits (as defined in the relevant GST legislation) which that party is entitled to claim in respect of that cost. Born must provide details of the Cost and any input tax credits to The Client on demand.
(a) If The Client has engaged Born to provide or commence Services on a specified date, the The Client may notify Born in writing (during business hours) that The Client does not require the Services to be provided or commenced on that date. If notification of the cancellation is provided outside of normal business hours, it is deemed to have been provided at the commencement of the following business day.
(b) If the cancellation is made more than 24 hours prior to the day on which Born has been engaged to provide or commence the Services, The Client must pay 50% of the agreed Estimation, unless otherwise agreed by both parties..
(c) If the cancellation is made within 24 hours prior to the day on which Born has been engaged to provide or commence the Services, The Client must pay 100% of the agreed Estimation, unless otherwise agreed by both parties.
(d) If the cancellation is made while Born is providing Services to The Client, The Client must pay the agreed Estimation in full, unless otherwise agreed by both parties.
5. OWNERSHIP RIGHTS, ASSIGNMENT AND LICENCE
5.1.1 By Client
Subject always to clause 5.1.2, Born hereby acknowledges and agrees that copyright in Client Works created pursuant to an Estimation and or a Statement of Work, and incorporated into a Deliverable, whether such Client Works are derived from the Information or are original or derivative works created by Born and its employees or Contractors shall be assigned from Born to The Client immediately upon full and final payment of all outstanding invoices relating to that work, subject always to any Copyright Limitation. Full and final payment is defined cleared funds received by Born into its nominated bank account.
5.1.2 By Born
Born will retain all right, title and interest in and to Born Design, Code and Data, including any updates or enhancements thereto, but excluding client database information. Born hereby reserves all rights in and to Born Design, Code and Data not expressly granted to The Client herein, and The Client will have no ownership rights of any kind in or to Born Design, Code and Data.
5.1.3 Altering Copyright Limitations
When Born assigns copyright pursuant to clause 5.1.1 it shall also certify to The Client the nature of any Copyright Limitations relating to such copyright. If The Client wishes to alter such Copyright Limitations at any time it must request this in writing from Born, who will then provide The Client with a quote for such Copyright Limitation alteration. This quote must be paid in full by The Client prior to such Copyright Limitation being altered.
5.2 License of Born Design, Code and Data
Subject to the terms and conditions of this Agreement, Born hereby grants to The Client an unassignable, worldwide, non-exclusive, royalty free, irrevocable (except as provided in Section 9.3) license to use and reproduce Born Design, Code and Data, to the extent that such Born Design, Code and Data are
(i) incorporated into the Deliverables and;
(ii) required for operation of the Deliverables. Such license will be effective upon acceptance of the applicable Deliverable by Client.
5.3 License to Information
The Client hereby grants to Born a royalty-free, non-exclusive license to use, reproduce, modify, transmit, digitise, adapt and publicly display the Information solely as necessary to perform its obligations under this Agreement.
5.4 Third-Party Works
To the extent The Client elects to include Third Party Works as a component of a Deliverable, or to the extent Third Party Works are otherwise required to maintain the functionality or design of a Deliverable, The Client will acquire, and if applicable, pay for, any licenses to such Third Party Works. Such licenses will include all rights necessary for Born to modify or otherwise utilise the Third Party Works in a manner consistent with Born’s obligations under this Agreement. The Client hereby grants to Born a royalty free, nonexclusive license to use, modify, reproduce and publicly display all such Third Party Works contemplated by this Section solely as necessary to perform its obligations under this Agreement.
5.5 Reservation of Rights
Notwithstanding any other provision of this Agreement, The Client will obtain no right, title or interest in or to the Client Works unless and until The Client pays the applicable fees in accordance with Section 4.1.
6. TRADEMARKS & CREDIT
6.1 Use of Trademarks and Work Product by Born
The Client hereby expressly grants Born the right to use and reproduce The Client’s Trademarks
(i) to create any Deliverables, as specified in the Specifications, and;
(ii) in Born’s marketing materials, advertisements, press releases, promotional brochures, presentation portfolios, contest entries, Born’s web site, or in any media now known or later developed, solely for the purpose of identifying The Client as a client and describing Born’s Services provided to The Client.
6.2 Trademark Use by The Client
Subject to the terms and conditions of this Agreement, Born hereby grants to The Client the right to use the Trademarks of Born solely for the purpose of providing Born credit for the development of the Deliverables, as set forth in Section 6.3.
6.3 Ownership of Trademarks
Each party will be the sole and exclusive owner of its Trademarks, and any goodwill arising from either party’s use of such Trademarks will insure solely to the benefit of the Trademark owner.
6.4 Use of Trademarks
Each party will use the other party’s Trademarks in conformance with any trademark guidelines provided by the party owning the Trademarks, which guidelines may reasonably be revised from time to time. The party owning the Trademarks will have the right to monitor the other party’s use of any of its Trademarks. Upon reasonable request by the owning party, the other party will provide the owning party with representative samples of each such use prior to the time such Trademarks are published on the Internet or in promotional materials. If the owning party determines that the other party is using such Trademarks improperly, the owning party will notify the other party, and the other party will promptly remedy the improper use following receipt of such notice.
7. REPRESENTATIONS, WARRANTIES & INDEMNIFICATION
7.1 Born’s Duties
a) Born must provide the Deliverables as specified in the Estimation and or Statement of Work and must use its best endeavours to deliver the same.
b) Whilst on The Client’s premises or accessing The Client’s Information Systems, Born will comply with all reasonable security and other directions given to it by The Client.
c) Subject to the prior approval of The Client, Born is required to obtain all necessary licences, permissions and approvals and pay all royalties, licence and other fees (if any) relative to the use or exploitation by Born of any material made or contributed by a third party in the provision of the resulting services. The Client agrees that it will reimburse any expense that Born incurs in obtaining such licences, permissions and approvals within thirty (30) days of receiving an invoice from Born in respect of such reimbursable items.
7.2 Born’s Liability
a) Born represents and warrants that:
(i) the components built for the services will perform in accordance with its functional, performance and operational specifications;
(ii) the components built for the services will not corrupt, damage or destroy any data in any computer system, software or database of the Client;
(iii) the work will be provided in a timely and professional manner using appropriately experienced and qualified personnel.
(iv) it will be liable for damages that result from unauthorised access, use or disclosure of Confidential Information that breach section 8.1.
b) Born’s liability to The Client is limited at Born’s option to either the resupply of the services or the payment of the cost of having the services resupplied.
c) The Client acknowledges and agrees that Born is not liable for any defect in the services to the extent that the defect results from:
(i) use of the material supplied by the Client or;
(ii) the hosting or maintenance of the services by the Client or a third party.
d) Born is not liable for any delay in providing the services if the delay or failure results from the Client’s act or omission or from a breach either intentional or inadvertent, by the Client in relation to its obligations under this agreement.
7.3 Born’s Limited Warranty of Performance
Born warrants that the Services will be performed in a professional manner, and, if applicable, that final Deliverables will operate substantially in accordance with the Specifications, and will continue to do so for a period of thirty (30) calendar days after the acceptance of the final Deliverables (the Warranty Period). Notwithstanding acceptance of a Deliverable by The Client, if, during the Warranty Period, The Client makes a written request to Born to correct Errors in a Deliverable, The Client’s sole and exclusive remedy and Born’s sole responsibility will be to correct or provide a work around for such Errors, at Born’s expense. This warranty is void to the extent that the affected Deliverable is modified by Client. If any Deliverable is a web or mobile site or application, The Client will obtain sufficient access for Born with The Client’s designated Host so that Born may correct such Errors.
7.4 Born’s Non-Infringement Warranty and Indemnity
To the best of Born’s knowledge, the Deliverables as delivered do not infringe Intellectual Property Rights of any other person or entity, nor will they, to the best of Born’s knowledge, defame or libel any person or entity. Notwithstanding the foregoing, Born will not be deemed to have breached the warranties contained in this section to the extent that The Client, its employees, agents, independent contractors or assigns have modified the Deliverable in any manner, or to the extent that the Deliverable is based on Specifications provided by Client, or incorporates third-party materials through the use of Third Party Works or Information provided by The Client, through web site framing, or otherwise. Subject to the conditions contained in Section 7.7, Born agrees to defend, indemnify, and hold harmless The Client, and its directors, officers, employees and agents from and against any third-party claim, demand, cause of action, debt or liability (including reasonable lawyers fees) arising out of the breach of this section of this Agreement.
7.5 The Client’s Warranty of Responsibility and Indemnity
The Client hereby acknowledges that it has directed Born to develop the Deliverable utilising the Specifications, Information, and, where applicable, Third Party Works. Except as expressly provided herein, The Client will be solely responsible for the Deliverables, including, without limitation, any and all forms of Client Works, Information, and media included in the Deliverables; any means or methods of, or items placed into, commerce by means of the Deliverables; any membership programs and/or benefits available on or contained within the Deliverables; and conforming the Deliverables to any and all applicable laws, rules and/or regulations. If any third party not retained and compensated by Born performs any services in respect of the Deliverables, The Client agrees to indemnify, defend and hold Born harmless from and against any and all liability, costs and/or expenses (including reasonable lawyers fees) relating to such Deliverables resulting directly or indirectly from use of, or any services performed by, such third party.
7.6 The Client’s Non-Infringement Warranty and Indemnity
The Client represents and warrants that;
(i) The Client owns or has the right to use and to sublicense to Born, as specified in Sections 5.3 and 5.4, all Information, Third Party Works, and any Trademarks supplied by The Client, including the right to publicly display, publish, and distribute the Information on the Internet and to authorize Born to use the same in accordance with this Agreement;
(ii) The Client is authorized to use the Information in connection with the advertising, promotion and exploitation of the Deliverables as provided herein;
(iii) The use by Born of any Information or Third Party Works in accordance with this Agreement will not violate the Intellectual Property Rights of any third party; and;
(iv) Client has obtained any authorizations necessary for hyperlinks, if any, with the exception of the hyperlink provided for in Section 6.3.
Subject to the conditions contained in Section 7.7, Client agrees to defend, indemnify, and hold harmless Born, its parent, subsidiaries, and affiliates, and each of their respective directors, officers, employees and agents from and against any claim, demand, cause of action, debt or liability (including reasonable lawyers fees) arising out of the breach of Sections 7.5 or 7.6 of this Agreement.
7.7 Conditions to Indemnity
In claiming any indemnification hereunder, the indemnified party will promptly provide the indemnifying party with written notice of any claim which the indemnified party believes fails within the scope of this Section 7. The indemnified party will, at its own expense, reasonably assist in the defence of such claims; provided, that the indemnifying party will control such defence and all negotiations relative to the settlement of any such claim, and further provided, that any settlement intended to bind the indemnified party will not be final without the indemnified party’s prior written consent, which will not be unreasonably withheld.
7.8 Limitation of Liability
Notwithstanding any other provision of this agreement, neither party will be liable under this agreement or otherwise for any form of indirect, consequential, exemplary, special, incidental, or punitive damages, even if such party has been advised of the possibility of such damages. Notwithstanding any other provision of this agreement, each party’s liability for any reason and upon any cause of action will be limited to the fees due to Born from the client under this agreement. This limitation applies to all causes of action in the aggregate, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any other tort.
7.9 Trade Practices Act
Notwithstanding any other term of this Agreement, if any goods or services supplied by Born under this Agreement are held to be subject to the mandatory conditions and warranties of the Trade Practices Act 1974 (Cth), Born’s liability for breach of any such condition or warranty will be limited at Born’s option to:
(i) in the case of goods, anyone or more of the following:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired AND
(ii) in the case of services:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
8.1 Non-Disclosure of Confidential Information
The Client and Born recognise that in carrying out this Agreement, they may receive, develop, or otherwise acquire Confidential Information of the other party. All Confidential Information which the parties may now possess, obtain or create during or after the work contemplated by this Agreement will be held confidential by the parties for the benefit of the other, using the same standard of care that each uses to protect its own confidential and proprietary information to prevent the disclosure of the Confidential Information, but in no event less than reasonable care. The Client and Born will not directly or indirectly reveal, report, publish or disclose such Confidential Information to any person, firm or corporation not expressly authorized by the owner of such Confidential Information to receive such Confidential Information, or use (or assist any person to use) such Confidential Information except for the benefit of the owner thereof and in the course of their work hereunder. In addition, neither The Client nor Born will appropriate the Confidential Information to its own use, or to the use of any third party. Each party will require that each of its independent contractors who work on or have access to the Confidential Information sign a suitable confidentiality and work for hire/assignment agreement and be advised of the confidentiality and other applicable provisions of this Agreement.
8.2 Disclosure Exception
Any non disclosure pursuant to Section 8.1 will not apply to the extent The Client or Born is required to disclose any Confidential Information by applicable law or legal process, nor will any information be deemed confidential that the receiving party can demonstrate is;
(i) as of the time of its disclosure, or thereafter becomes part of the public domain without violation of this Agreement by The Client or Born as the receiving party;
(ii) already in The Client or Born’s possession as evidenced by written documents prior to the disclosure thereof by the other party, or;
(iii) subsequently learned, without violation of this Agreement by the receiving party, from a third party not under a confidentiality obligation to the disclosing party.
9. TERM AND TERMINATION
This Agreement will commence upon The Client approval of an Estimation, and will terminate upon the acceptance of the final Deliverable and all outstanding payments due to Born have been paid by The Client, unless earlier terminated as provided in this Section 9.
9.2 Termination for Cause
In addition to any other right or remedy provided by this Agreement or by law, each party will be entitled to terminate this Agreement and/or any Estimation and or Statement of Work for cause either:
(a) upon the expiration of thirty (30) calendar days following written notice to the other party of its material breach of any of its obligations under this Agreement; provided, that the other party has not remedied such breach within such thirty (30) day period; or
(b) if a petition in bankruptcy is filed by or against the other party and is not withdrawn within sixty (60) calendar days, or if the other party becomes insolvent, or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law, or if the other party discontinues its business or if a receiver is appointed for its business.
9.3 Effect of Termination
If this Agreement is terminated by Born for cause, any license granted to The Client under Section 5 will be terminated, except as set forth below. In the event of such termination, The Client will have the right to retain all Deliverables delivered to it under this Agreement prior to Born’s termination, and The Client will pay Born an amount equal to the total of the number of hours that each of Born¹s employees incurred in providing the Services multiplied by Born’s then-current hourly billing rates, plus an amount for out-of-pocket expenses incurred by Born prior to termination, plus one-hundred and twenty percent (120%) of the amount of any payment Born is obligated to make to any third party who performed or was to perform any part of the Services or who provided or was to provide products or services for the benefit of The Client. Born will credit against such amount any monies already paid by The Client. If The Client has paid Born more than the accrued amounts as set forth above, Born will refund such excess amounts within thirty (30) calendar days of the effective date of termination. Any licenses granted to The Client under Section 5 will survive to the extent that The Client fulfils its obligations under this Section 9.3.1.
If this Agreement is terminated by The Client for cause, any and all licenses granted to The Client under Section 5 will survive; The Client will pay Born all accrued amounts due and payable to Born for such Deliverables that have been accepted by The Client pursuant to Section 4, or an appropriate pro-rata portion thereof; and, if Born has received monies in excess of accrued amounts due and payable as set forth in this Section 9.3.1, Born will refund such excess amount, within thirty (30) calendar days of the effective date of such termination.
Sections 1 (Definitions), 4 (Payment); 5.1 (Ownership); 5.5 (Reservation of Rights); 6 (Trademarks and Credit); 7 (Representations, Warranties & Indemnification); 8 (Confidentiality); 9 (Term and Termination) and 10 (Miscellaneous) will survive any termination or expiration of this Agreement. Licenses will survive as specified in Sections 9.3.1 or 9.3.2
10.1 Status of Parties
Nothing contained in this Agreement nor the performance hereunder will render Born, its employees or contractors to be an agent, employee, joint venturer or partner of The Client. Neither The Client nor any of its officers or employees will have authority to contract for or bind Born in any manner and will not represent themselves as an agent of Born or as otherwise authorized to act for or on behalf of Born.
10.2 Force Majeure
Except for the failure to pay any money due hereunder, any failure by either party to perform, or delay in performance of, any obligation arising under or in connection with this Agreement will be excused by the other party if such failure will have been caused by any act or circumstance beyond the reasonable control of a party, including, but without limiting the generality of the foregoing, any Act of God, fire, flood, explosion, lightning, windstorm, earthquake, pandemic, endemic, failure of machinery or equipment, shortage of materials, discontinuation of power supply, court order or governmental interference, civil commotion, riot, war, strike, labour disturbances or transportation difficulties.
10.3 No Solicitation
During the term of this Agreement and for a period of one (1) year thereafter, The Client will neither solicit, directly or indirectly, the employment of, nor hire
(i) any of Born’s employees, directors or officers or;
(ii) persons who have been employees, directors or officers of Born in the six (6) months prior to their initial contact with Client.
Any notice required or permitted hereunder will be validly and effectively given if delivered personally to the other party or sent by overnight mail to the address in accordance with the last sentence of this Section 10.4 (or to such other address as will be advised by either party to the other in writing). Notices delivered personally in accordance with this Section will be considered received on the date of delivery and notices sent via overnight mail will be deemed to have been received one day after placement with a standard overnight service. Notices will be provided to a party at the addresses set forth on an Estimation or most recent correspondence by either party, to the attention of the individual set forth on an Estimation or most recent correspondence on behalf of that party.
If any provision of this Agreement is held to be unenforceable, invalid or illegal, in whole or in part, by any court of competent jurisdiction, such unenforceable, invalid or illegal provisions will not affect the remainder of this Agreement, unless to do so would clearly violate the present legal and valid intention of the parties hereto.
10.6 Entire Agreement
The Agreement constitutes the entire agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof. This Agreement supersedes any and all other agreements, either oral or in writing (including any interim agreements executed by the parties), between the parties hereto with respect to the subject matter hereof. No change or modification of this Agreement will be valid unless the same be in writing and signed by an authorised officer of The Client and Born, respectively.
10.7 Governing Law and Jurisdiction
This Agreement will be governed by the laws of New South Wales, Australia, without giving effect to any conflict of law provision or rule, whether such provision or rule is that of the New South Wales, Australia or any other jurisdiction. Any suit will be brought in a court of competent jurisdiction in New South Wales and each party irrevocably consents to the exclusive jurisdiction of the courts of the State of New South Wales.
No waiver of any provision of this Agreement will be valid unless in writing and signed by the person or party against whom enforcement of such waiver is sought.
This Agreement may be executed in any number of counterparts, but all counterparts hereof will together constitute but one agreement.
Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that either party may assign this Agreement without the other party’s consent in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which more than fifty percent (50%) of the party’s voting shares are transferred.
10.11 Provision of Services in Pandemic / Endemic Environment
The Client acknowledges that Born’s ability to deliver the Services and the Deliverables are likely to be affected during times of pandemics, endemics and the like, along with the associated Government-mandated lockdowns and trading restrictions. During such times, and whilst Born will make every effort to replace key personnel if so affected, and to deliver the Services and the Deliverables in accordance with the terms agreed, Born may incur additional costs in doing so. The Client agrees to be liable for such additional costs which are incurred by Born, acting reasonably at all times.
10.12 Agreement to these Terms and Conditions
By engaging Born to provide Services to you, the Client agrees to these terms and conditions.