Terms

These terms and conditions (“Terms”), together with Third Culture Kids Client Proposal constitute a legally binding agreement between you (the Client) and Third Culture Kids Pty Ltd (ACN 677 467 524) of 2/45 Reynolds Road, Mount Pleasant (“Third Culture Kids”), for the provision of services set out in your Third Culture Kids Client Proposal (the “Services”) effective from the date the last party signs Third Culture Kids Client Proposal OR starts using the Services.

The following definitions apply to this agreement (unless the context otherwise requires):

Agreement means these Terms, Third Culture Kids Service Specifications and any documents, schedules or annexures referenced or incorporated into this agreement as amended from time to time; Australian Consumer Law means the consumer protections set out in Attachment A of the Competition and Consumer Act 2010 (Cth) as amended from time to time;

Background IPR means a party’s IPR that existed before, or created independently of, this Agreement.

Client Proposal means the document titled the “Third Culture Kids Client Proposal” incorporating these Terms, that sets out the Services, Fees and Special Conditions and/or other details of the Client’s engagement with Third Culture Kids, as agreed in writing by the Client and approved by Third Culture Kids.

Cancellation Fee means the cancellation fee specified in the Fee Schedule;

Client Content means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.

Commencement Date means the date the Services are to commence as specified in Third Culture Kids Client Proposal.

Completion Date means the date the Services will cease as specified in Third Culture Kids Client Proposal;

Confidential Information means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential but does not include information which:
(a) is or becomes public knowledge other than by breach of this Agreement;
(b) is required to be disclosed by law;
(c) was known by the recipient as at the date of this Agreement; or
(d) has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information, where the burden of establishing any of the exceptions referred to in (a) to will be upon the recipient;

Debit Date means the date that the Client’s account will be debited for the payment of the Fee as agreed;

Failed Payment Fee means the reversal fee specified in the Fee Schedule;

Fee means the money payable to Third Culture Kids for the Services and any incidental costs as set out in Third Culture Kids Client Proposal.
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Intellectual Property Rights or ‘IPR’ means all statutory and other proprietary rights in respect of copyright and neighbouring rights (including but not limited to rights in relation to software), all rights in relation to inventions (including registered and not yet registered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
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Material means information, documents, equipment, software, goods, computer files, designs, transferable know-how and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material.
Minimum Term means the term of 6, 12, or 24 months or such other term as agreed with the Client and specified in Third Culture Kids Client Proposal;

Services means the services described in Schedule 1;

Services Material means any Material that is created during the performance of the Services but does not include the Client Content;
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Special Conditions means the special conditions set out in Third Culture Kids Client Proposal (if any); Transfer Fee means the transfer fee set out in the Fee Schedule.
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Uptime SLA means the uptime service level agreement for websites that Third Culture Kids hosts. A series of such breaches occurs by the Client. after receiving notice to desist from Third Culture Kids, Third Culture Kids will terminate your Agreement with immediate effect in accordance with clause 24.2 (a).

During the term of this Agreement, Third Culture Kids shall provide products and services necessary to achieve the deliverables outlined in this proposal.

This Agreement shall commence on the date first above written and shall continue until the agreed scope of work has been completed or 10 months, unless sooner terminated in accordance with the terms of this Agreement. This Agreement shall thereafter be renewed by written agreement between the parties for an additional term until terminated by either Contract summary party as provided herein.

It is understood and agreed that Third Culture Kids is independent in the performance of this Agreement, that Third Culture Kids shall perform the Services under the control of the Client as to the result of such activity only and not as to the means by which such result is accomplished and that Third Culture Kids is providing Services on a full time basis. Third Culture Kids is not an employee of the Client, and has no authority whatsoever to bind the Client by contract or agreement of any kind other than as expressly provided under the terms of this Agreement. The Client acknowledges and agrees that Third Culture Kids shall act on behalf of the Client but will not be liable for payment of media and purchases placed on behalf of Client but for which Third Culture Kids has not been paid by Client.

Upon execution of this Agreement the Client agrees to pay Third Culture Kids as per the agreed payment schedule outlined in this proposal.

Where relevant the Client will provide, or cause to be provided, to Third Culture Kids the information which is necessary for Third Culture Kids to be able to perform the Services fully and properly in accordance with this Agreement and which may reasonably be expected to impact on the performance of the Services.

All general artwork, content and digital assets which may be commissioned by the Client becomes the property of the Client subject to all outstanding payments having been received.

Each party must at all times:

7A. not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party;
7B. not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party;
7C. refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same; and
7D. use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.

8A. If the Client fails to perform or observe any obligation, term, condition or stipulation contained in this Agreement then Third Culture Kids may give written notice to the Client that unless the default is remedied within the time specified in the notice (which must be a minimum of 14 business days), this Agreement will be terminated. If the Client fails to rectify the default within the time specified in the notice Third Culture Kids may terminate this Agreement with a 30 day written notice to the Client.

8B. If Third Culture Kids fails to perform or observe any obligation, term, condition or stipulation contained in this Agreement then the Client may give written notice to Third Culture Kids that unless the default is remedied within the time specified in the notice (which must be a minimum of 14 business days), this Agreement will be terminated. If Third Culture Kids fails to rectify the default within the time specified in the notice, the Client may terminate this Agreement with a 30 day written notice to Third Culture Kids.

8C. Third Culture Kids may terminate this Agreement with immediate effect by written notice to the Client if the Client breaches a material provision of this Agreement where that breach is not capable of remedy, the Client ceases to carry on business, the Client eases to be able to pay its debts as they become due, any step is taken to enter into any arrangement between the Client and its creditors or administrator or other like person of the whole or part of the Client's assets, operations or business.

8D. On termination of this Agreement as outlined in 7A and 7B, the Client will pay Third Culture Kids:• the unpaid value of any fees and charges for Services performed up to the date of termination;• the applicable Fees as outlined in Clause 4 of this Agreement for the remainder of the Term, (to a maximum of 3 months) and;• in the case of termination due to any default of the Client, any costs incurred by Third Culture Kids in relation to the cessation and transfer if applicable to other Service Providers of the Services.

8E. On termination of this Agreement as outlined in 7B, Third Culture Kids will forward the Client details of any work in progress, including both electronic and physical copies and relevant work details that may be needed by the Client on an ongoing basis. This is to be forwarded to the Client within 4 weeks of the request for such materials.

8F. After the minimum commitment period, Client may give 60 days written notice to Third Culture Kids to terminate the agreement.

Notwithstanding anything in this Agreement expressed or implied to the contrary, to the extent permitted by law, neither party will be liable to the other for loss of actual or anticipated profit or revenue, loss of use, loss of income or rent, loss of business, loss of production, loss of contract, loss of anticipated savings or business, loss of financial opportunity, financing and holding costs, business interruption, delay costs, loss by reason of shutdown or increased expense of operation, loss or corruption of data, loss of goodwill, denial of use of any plant, port or facility, economic loss or any consequential, special, contingent, penal or indirect financial loss, damage or expense, whether arising out of a breach of this Agreement at law or in equity.

The Client will indemnify and keep indemnified Third Culture Kids, its directors, employees, agents and contractors against all claims, damages, judgments, demands, losses, liabilities, expenses and costs (including all legal costs and disbursements on a solicitor and own Client basis and whether incurred by or awarded against Third Culture Kids) arising out of or in connection with the performance of the Services or this Agreement or any reports prepared by Third Culture Kids or any reliance on such reports by any third party. Third Culture Kids will indemnify and keep indemnified the Client, its directors, employees, agents and contractors against all claims, damages, judgments, demands, losses, liabilities, expenses and costs (including all legal costs and disbursements on a solicitor and own Client basis and whether incurred by or awarded against the Client) arising out of or in connection with the performance of the Services or this Agreement or any reports prepared by the Client or any reliance on such reports by any third party.

This Agreement does not create a relationship of employment, Third Culture Kids, partnership or joint venture between the parties. The invalidity of any part provision of this Agreement will not affect the enforceability of any other part or provision of this Agreement. The parties will not assign or otherwise transfer any or all of its rights arising out of this Agreement without the written consent of the other party. Any variation to this Agreement will be in writing and signed by the parties. This Agreement will be governed by and construed in accordance with the laws in force in the State of Western Australia from time to time. The parties to this Agreement submit to the exclusive jurisdiction of the courts of the State and those courts having right to hear appeals there from. This Agreement represents the entire Agreement between the parties and supersedes all prior agreements whether written or oral in relation to the use and disclosure of the Confidential Information.