1 Definitions and interpretation
In this Agreement:
Adbank Products means, where the Adbank Products Schedule is incorporated into this Agreement, the products set out in Part A of such Schedule to be provided by Adstream to Customer under this Agreement.
Adstream Account Manager means the Adstream representative nominated by Adstream and notified to Customer from time to time.
Adstream Products means the products to be provided by Adstream to Customer under this Agreement.
Adstream Site means www.adstream.com.au.
Agreement means the Customer Registration Form, these General Terms and any Products Schedules.
Applicable Laws includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance, by law, government agency or regulator (whether commonwealth, state, territorial or local).
Authorised Users means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use Adstream Products as further described in clause 2.2.
Back-Up Policy means Adstream’s policy in relation to its archiving procedures for Customer Data.
Broadcast Products means, where the Broadcast Products Schedule is incorporated into this Agreement, the products set out in Part A of such Schedule to be provided by Adstream to Customer under this Agreement.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.
Commencement Date means the date specified in Part A of the relevant Products Schedule.
Confidential Information means information which is or has been disclosed to (whether orally, electronically or in writing), or otherwise obtained by, one party from or through the other party in connection with this Agreement, including information in relation to the Adstream Products, other than any such information which:
(a) was in the public domain at the time of its provision;
(b) became part of the public domain after its provision other than as a result of a disclosure in breach of this Agreement;
(c) is or came into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence;
(d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(e) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(f) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Customer means the entity designed as the customer in the relevant Customer Registration Form.
Customer Data means the data inputted by the Customer, Authorised Users, or Adstream on the Customer’s behalf for the purpose of using Adstream Products or facilitating the Customer’s use of Adstream Products.
Customer Registration Form means an application, in the form provided or approved by Adstream, completed by Customer to apply for credit from Adstream in respect of the Adstream Products.
Customer Representative means the Customer representative nominated by Customer and notified to Adstream from time to time.
Early Termination Fee means the relevant fee payable by Customer for the early termination of a Products Term as set out in the relevant Products Schedule.
Fees means the fees payable by Customer for the relevant Adstream Products, the Implementation and Training Services and any related or additional services, as set out in the relevant Products Schedule.
General Terms means the section of this Agreement entitled, “General Terms”.
Implementation and Training Services means, where the Implementation and Training Schedule is incorporated into this Agreement, the implementation and training services set out in Part A of such Schedule to be provided by Adstream to Customer under this Agreement.
Normal Business Hours means 9.00 am to 5.00 pm Sydney time on a Business Day.
Print Products means, where the Print Products Schedule is incorporated into this Agreement, the products set out in Part A of that Schedule to be provided by Adstream to Customer under this Agreement.
Printpath Products means, where the Printpath Products Schedule is incorporated into this Agreement, the products set out in Part A of that Schedule of this Agreement to be provided by Adstream to Customer under this Agreement.
Products Schedule means any of the Schedules to this Agreement.
Products Term means the period(s) specified in Part A of a Products Schedule during which Adstream will provide the relevant Adstream Product or the Implementation and Training Services to Customer.
Related Body Corporate, Subsidiary and Holding Company each have the meaning given in section 9 of the Corporations Act 2001 (Cth).
Service Levels means the service levels and responses and response times set out in the relevant Products Schedules of this Agreement.
Software means the online or desktop software applications provided by the Adstream as part of this Agreement.
Support Service Policy means Adstream’s policy for providing support in relation to Adstream Products.
Virus means any thing or device (including any software, code, file or programme) which may:
(a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications equipment or network or any other or device;
(b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
In this Agreement, unless the context otherwise requires:
(a) headings are for convenience only and do not affect interpretation;
(b) words importing the singular include the plural and vice versa;
(c) a reference to any thing (including any right) includes a part of that thing but nothing in this clause 1.2(c) implies that performance of part of an obligation constitutes performance of the obligation;
(d) an expression importing a natural person includes any company, partnership, incorporated limited partnership, joint venture, association, corporation or other body corporate and any government agency; and
(e) a reference to a person includes that person’s successors and legal personal representatives.
2 Adstream Products
2.1 Contents and Application of Agreement
(a) This Agreement between Adstream and Customer is comprised of:
(i) the Customer Registration Form;
(ii) these General Terms;
(iii) the relevant Products Schedules, usually specified in Customer Registration Form and provided by Adstream to Customer at or about the same time as the Customer Registration Form; and
(iv) the Implementation and Training Schedule (if applicable).
(b) These General Terms apply generally to all Adstream Products and the Implementation and Training Services. However, each Products Schedule sets out the additional product-specific terms that apply to the relevant Adstream Products (in the case of the Broadcast Products Schedule, Print Products Schedule, Adbank Products Schedule or Printpath Products Schedule) and the terms which apply to the Implementation and Training Services (in the case of the Implementation and Training Schedule).
(c) If there is any inconsistency between any of the terms set out in these General Terms and any Products Schedule, the terms set out in the relevant Products Schedule will prevail to the extent of any inconsistency.
Adstream grants Customer a non-exclusive and non-transferable licence for Authorised Users to access and use the Adstream Products for the Products Term, as may be further described in the relevant Products Schedule.
2.3 Conditions of Use
(a) Customer’s continued access to and use of the Adstream Products is subject to timely payment of all invoices issued in accordance with clause 3.
(b) Customer must not cause or permit any unauthorised third party access to or use of the Adstream Products or the Adstream Site.
(c) Customer must immediately notify Adstream on becoming aware of any unauthorised use or copying of the Adstream Products.
(d) Customer must not:
(i) make a copy of any of the Adstream Products;
(ii) modify any of the Adstream Products or combine or incorporate any of the Adstream Products in any other program or system (although Customer agrees to assign to Adstream all right, title and interest in such modifications or combinations and Adstream owns all right, title and interest in any such modifications or combinations);
(iii) reverse engineer any of the Adstream Products or separate any of the Adstream Products into component parts; or
(iv) cause or permit any third party to use, copy or install any of the Adstream Products
save as expressly permitted under a Products Schedule.
(e) Customer must not use the Adstream to threaten, menace or harass any person, or in any manner likely to cause or harm to Adstream or any other person, or in any unlawful manner or for any unlawful purpose.
(f) Customer must not create, alter, store, compile, transmit or publish any material using the Adstream Products that:
(i) contains a computer Virus of any kind;
(ii) is an infringement of any intellectual property rights (including copyright) of any third party;
(iii) is defamatory;
(iv) is in breach of any trade practices or other consumer protection legislation; or
(v) is otherwise an infringement of law or any rights of any third party.
Adstream reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
(g) Customer warrants that it will not be involved (whether directly or indirectly) in any act, omission or thing that will or may decrease the value of the Adstream Products or the intellectual property contained in the Adstream Products.
2.4 Customer’s obligations
(a) Customer must allow Adstream to train all new users of any of the Adstream Products, to ensure such users enjoy optimum use of the Adstream Products and their capabilities.
(b) Access to Adstream Products may require the use of one or a series of logins (made up of a combination of an email address and a user-selected password) and pin codes. These are allocated on acceptance by Adstream of an application to become a customer. It is possible to limit the extent of access that a particular login will allow and Customer must advise Adstream of the level of access that each user is permitted at the time of issue of the login.
(c) All passwords must be kept confidential. Customer is solely responsible for maintaining the confidentiality of all passwords issued. Adstream must be notified immediately of any unauthorised use of any password. If any unique passwords are provided to or accessed by a user other than Customer, Adstream accepts no responsibility or liability for any loss or damage that may result from any use of such password.
(d) Customer must:
(i) provide Adstream with:
(A) all necessary co-operation in relation to this Agreement; and
(B) all necessary access to such information as may be required by Adstream, including but not limited to Customer Data, security access information and configuration services;
in order to enable Adstream to provide the Adstream Products;
(ii) comply with all Applicable Laws and regulations with respect to its activities under this Agreement;
(iii) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
(iv) ensure that the Authorised Users use Adstream Products in accordance with the terms and conditions of this Agreement and will be responsible for any Authorised User’s breach of this Agreement;
(v) obtain and maintain all necessary licenses, consents, and permissions necessary for Adstream, its contractors and agents to perform their obligations under this Agreement, including without limitation the services;
(vi) ensure that its network and systems comply with the relevant specifications provided by Adstream from time to time; and
(vii) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Adstream’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
2.5 Adstream’s obligations
(a) Adstream will use commercially reasonable endeavours to make Adstream Products available to the Customer 24 hours a day, 7 days a week, except for:
(i) planned maintenance carried out during any maintenance window as notified to the Customer in writing at least 48 hours in advance; and
(ii) unscheduled maintenance performed outside Normal Business Hours, provided that Adstream has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
Any disruption in the availability of Adstream Products (whether due to planned maintenance or otherwise) will not constitute a material breach of this Agreement.
(b) Adstream will, as part of the supply of Adstream Products, and at no additional cost to the Customer:
(i) provide the Customer with Adstream’s standard customer support services during Normal Business Hours in accordance with Adstream’s Support Services Policy. The Customer may purchase enhanced support services separately at Adstream’s then current rates. Limited customer and technical phone support may be available outside Normal Business Hours in situations where there is a total loss of the Adstream Product during a peak or critical processing period;
(ii) provide all relevant documentation (including user guides) for the Adstream Products to the Customer Representative;
(iii) ensure that Adstream Products and services will be delivered substantially in accordance with the applicable Service Levels and with reasonable skill and care; and
(iv) maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
(c) This Agreement will not prevent Adstream from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
The obligations in clause 2.5 will not apply to the extent of any non-conformance which is caused by use of Adstream Products contrary to Adstream’s instructions, or modification or alteration of Adstream Products by any party other than Adstream or Adstream’s duly authorised contractors or agents. If the Adstream Products do not conform with the obligations in clause 2.5, Adstream will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of clause 2.5. Despite the foregoing, Adstream:
(a) does not warrant that the Customer’s use of Adstream Products will be uninterrupted or error-free or that Adstream Products and/or the information obtained by the Customer through Adstream Products will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that Adstream Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Adstream retains ownership of all right, title and interest (including intellectual property rights such as copyright) in the Adstream Products (including any documentation provided by Adstream in relation to the Adstream Products) and the Adstream Site.
Risk of loss or damage to the Adstream Products will pass to Customer upon installation or first use of the Adstream Products at the Customer’s premises and from this time:
(c) Customer will be solely responsible for the supervision, management and control of the Adstream Products; and
(d) Customer will ensure that the Adstream Products are protected at all times from unauthorized access or use by a third party or physical misuse, damage or destruction by any person.
3 Credit and Payment
(a) On request by Adstream, Customer will provide to Adstream a completed Customer Registration Form.
(b) On receipt of a completed Customer Registration Form, Adstream will evaluate the credit worthiness of Customer and may require:
(i) Customer’s credit worthiness be confirmed by a credit-reporting agency; and/or
(ii) Customer to provide security for any credit extended by Adstream in a form nominated by Adstream (for example by way of a director, personal or bank guarantee).
(c) Customer authorises Adstream to contact Customer’s banking/financing institutions, vendor references and credit reporting agencies. Customer hereby grants permission for these parties to release and to make available both current as well as historical commercial credit information to Adstream.
(d) Where Adstream is willing to extend credit to Customer, Adstream may specify payment terms that are additional to or variations of those in these General Terms and will include those payment terms the Customer Registration Form.
(e) If at any time Adstream is concerned about Customer’s ability to pay the Fees, Adstream may require Customer to provide advance payment of the Fees or security for payment in a form nominated by Adstream.
3.2 Invoices and monthly statements
Adstream will provide to Customer an invoice for each Adstream Product or service provided and a monthly statement that sets out all current and overdue invoices (“Invoices Statement”).
Customer will pay Adstream the Fees within 30 days from the date of the Invoices Statement or, where alternative payment terms are specified in the Customer Registration Form, Customer will pay the Fees in accordance with those terms.
3.4 Overdue amounts
(a) If Customer does not paid the Fees in accordance with clause 3.3, Adstream may charge Customer interest on the overdue amounts at the rate of 3% above the then published rate of the National Australia Bank’s benchmark rate until the date the overdue amount is paid in full.
(b) Customer agrees to reimburse Adstream for any additional expenses incurred by Adstream in collecting any outstanding Fees, including any fees charged by an external debt collecting agency.
(c) If Customer elects to pay by cheque, Adstream will charge Customer an administration fee if Customer’s cheque is dishonoured.
(d) If Customer has an overdue account, Adstream may, in its absolute discretion, withdraw the credit extended to Customer by Adstream.
(e) Adstream may, on providing written notice to the Customer, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Adstream Products and Adstream will be under no obligation to provide any or all Adstream Products while the Invoices Statement concerned remains unpaid.
3.5 Disputed invoices
(a) Subject to clause 3.5(b), Customer may in good faith dispute any Fees on the basis that there is a manifest error in the determination of the amount specified in the relevant Adstream invoice, or if it considers, on reasonable grounds, that Adstream has not provided the items or services for which the amount is claimed, provided that Customer:
(i) promptly notifies Adstream of the amount disputed;
(ii) promptly provides Adstream with all information reasonably necessary to explain the basis for the dispute; and
(iii) pays all undisputed Fees in accordance with this clause 3.
(b) Customer may not dispute any Fees appearing on an invoice provided by Adstream after the expiry of the period of 30 days from the date of the Invoices Statement on which details of the relevant invoice appear.
4.1 Recovery of GST
If one party (“supplying party”) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the consideration (“receiving party”) must also pay an amount equal to the GST payable by the supplying party.
4.2 Time for payment of GST amount
Subject to first receiving a tax invoice, the receiving party must pay the GST amount when it is liable to provide the consideration.
4.3 Identity and reimbursement payment
If one party must indemnify or reimburse another party (“payee”) for any loss or expense incurred by the payee, the required payment does not include any amount which the payee (or an entity that is in the same GST group as the payee) is entitled to claim as an input tax credit, but will be increased under clause 4.1 if the payment is consideration for a taxable supply.
In this Agreement:
(a) terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended; and
(b) consideration includes non-monetary consideration, in respect of which the parties must agree on a market value, acting reasonably.
5 Acknowledgements, liability and indemnities
Customer acknowledges that:
(a) the Internet is not a completely secure medium of communication;
(b) the speed and upload capability of the Adstream Products available online is determined by the quality of the Internet connection from where such Adstream Products are accessed;
(c) use of Adstream Products and the availability of the Adstream Site may involve reliance on third party data carriers over which Adstream has no control; and
(d) except as expressly provided in this Agreement and to the extent permitted by law, Adstream does not make any warranties of any kind, whether express or implied in relation to goods or services supplied by Adstream in accordance with this Agreement (including the Adstream Products).
5.2 Limitation of liability
If any statute implies any term into Customer’s use of, or any arrangement arising out of Customer’s use of the Adstream Products or receipt of the Implementation and Training Services and that statute prohibits exclusion of that term, then that term is included. However, if and to the extent permitted by the statute, Adstream’s liability for any breach of such term is limited to the re-supply of the Adstream Products or the re-performance of the Implementation and Training Services.
5.3 Exclusion of indirect loss
Adstream, Adstream’s Related Bodies Corporate and Adstream’s licensors are not liable for any indirect or consequential loss or damage, lost profits, lost revenue, lost data or business interruption suffered or incurred by Customer or any other person arising out of or in connection with the provision of the Adstream Products or the Implementation and Training Services, whether arising from breach of contract or in tort.
5.4 Exclusion of specific liability
Adstream, Adstream’s Related Bodies Corporate and Adstream’s licensors are not liable to Customer or any other person for any loss or damage arising out of or in connection with:
(a) any person gaining unauthorised access to the Adstream Site or any user zone;
(b) any malfunction, bugs or viruses in customer equipment, software or links as a result of using Adstream Products;
(c) use or disclosure of any data obtained by any third party as a result of the unauthorised access to the Adstream Site or having intercepted any data as it passes between Customer, Adstream or any third party;
(d) defects in or the unsuitability of any materials supplied by Customer or a third party or by Adstream’s adherence to specific instructions given by Customer;
(e) any data sent via the Internet, via or to Adstream, or via any dedicated link made available by Adstream to Customer or to any third party;
(f) the unavailability of the Adstream Site;
(g) Customer’s inability to access the Adstream Site or to use the Adstream Site or the Adstream Products; or
(h) any delay in the receipt of any data transmitted by Adstream or using any of the Adstream Products.
5.5 Liability cap
Subject to clause 5.6, Adstream’s, Adstream’s Related Bodies Corporate and Adstream’s licensors’ liability for any loss or damage (whether arising from breach of contract or in tort) which is not excluded or limited by clauses 5.2, 5.3 or 5.4 is limited in aggregate to the amount of Fees paid by Customer in the 12 months prior to the date of the event giving rise to the liability.
5.6 Liability for non-transmission
If Customer uses the Adstream Products in the transmission of any material and the material is not transmitted, Adstream will (at Customer’s option):
(a) arrange retransmission of the material; or
(b) refund any licence or service fee paid to Adstream in respect of that particular transmission.
Customer agrees this is Adstream’s entire liability to Customer in such circumstances.
5.7 Indemnity by Customer
Customer must indemnify Adstream, Adstream’s Related Bodies Corporate and Adstream licensors (“indemnified party”) against all claims, liability, loss and damage of any kind whatsoever suffered or incurred by an indemnified party arising out of or in connection with Customer’s act or omission or any breach by Customer of this Agreement. Customer must provide the indemnified party with prompt notice of any third party claim or threatened third party claim of which Customer has knowledge. Customer must not enter into any settlement or compromise of any third party claim without the indemnified party’s prior written consent.
6 Confidential Information
6.1 Confidentiality obligations
Each party (“Recipient”) who receives Confidential Information from the other party (“Discloser”) must not:
(a) use Confidential Information for any purpose other than performing its obligations under this Agreement;
(b) disclose to any person any Confidential Information except as permitted by this Agreement; or
(c) make or assist any person to make any use of Confidential Information other than in accordance with this Agreement.
6.2 Certain disclosures not prohibited
Either party may disclose Confidential Information:
(a) to a Representative of the Recipient who needs to know that information for the purposes of this Agreement, provided that such disclosure is under conditions of confidentiality consistent with this clause 6; or
(b) in respect of which the Discloser has given its written consent to disclosure or use.
6.3 Notification of disclosure
The Recipient must immediately notify the Discloser of all information which comes to its attention regarding any actual or potential disclosure or use of Confidential Information of the Discloser other than in accordance with this clause 6.
6.4 Return of Confidential Information
On the earlier of:
(a) a demand by the Discloser; or
(b) the expiry or termination of this Agreement,
the Recipient must deliver to the Discloser (or with the Discloser’s prior consent, destroy or erase) any Confidential Information of the Discloser in the possession, power or control of the Recipient or any of its representatives.
Each party will hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
6.6 Reasonable steps
Each party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
6.7 Third parties
Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6.8 Adstream’s confidential information
The Customer acknowledges that:
(a) details of Adstream Products and the results of any performance tests of Adbank, constitute Adstream’s Confidential Information.
(b) due to the unique nature of the Customer’s circumstances, the pricing model Adstream have offered under this Agreement and any Products Schedule is specific to the Customer and therefore constitutes Adstream’s Confidential Information.
6.9 Customer data
Adstream acknowledges that the Customer Data is the Confidential Information of the Customer.
6.10 Survival post termination
This clause 6 will survive termination of this Agreement.
7 Customer data
The Customer will own all right, title and interest in and to all of the Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 Archiving procedure
Adstream will follow its archiving procedures for Customer Data as set out in its Back-Up Policy, as amended by Adstream in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy will be for Adstream to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Adstream in accordance with the archiving procedure described in its Back-Up Policy. Adstream will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Adstream to perform services related to Customer Data maintenance and back-up).
7.4 Personal data
If Adstream receives any personal information from Customer or processes any personal information on Customer’s behalf (whether comprised in the Customer Data or otherwise) when performing its obligations under this Agreement:
8 Delay, Suspension and Cancellation
(a) The time for performance or delivery of the Adstream Products or any separately quoted products or services, in every case, is dependent on the prompt receipt of all necessary information, final instructions or approvals from Customer. Alteration by Customer of Customer’s requirements may result in a delay in performance or delivery.
(b) If there are any delays in the Customer’s provision of such assistance required to be provided under this Agreement, Adstream may adjust any agreed timetable or delivery schedule as reasonably necessary.
(a) Adstream may at any time withhold the provision of, or Customer’s use of, any of the Adstream Products or any separately quoted products or services or delivery of any goods (including the Implementation and Training Services), pending payment of any sum due from Customer under any agreement between Customer and Adstream or any invoice rendered by Adstream to Customer.
(b) Adstream may at any time without notice to Customer and without liability to Customer or any third party, suspend access to any of the Adstream Products, if:
(i) Adstream needs to carry out maintenance, updates and/or corrections to any of the Adstream Products or the Adstream Site;
(ii) Adstream is obliged to do so to comply with an order, instruction or request of any government or other competent administrative authority; or
(iii) Adstream cannot provide any of the Adstream Products due to any cause beyond Adstream’s control.
(c) Adstream has no liability to Customer or any third party arising out of, or in connection with, Adstream’s exercise of its rights under clause 8.2(a) or 8.2(b).
9 Term and Termination
This Agreement commences on the Start Date specified in the Customer Registration Form (or, if no Start Date is specified, on the date on which the Adstream Products are first provided) and continues in force until such time as the Products Term for each of the Adstream Products has expired, unless earlier terminated in accordance with this clause 9.
9.2 Termination for breach
Either party may terminate this Agreement in whole or in part with immediate effect if:
(a) the other party is in breach of any provision of this Agreement; and
(i) the breach cannot be remedied; or
(ii) the other party fails to remedy the breach within 14 days after notice is given to the other party to do so.
9.3 Termination for insolvency
Either party may terminate this Agreement with immediate effect if:
(a) an application is presented against the other party, an order made or a resolution passed, for the other party’s winding up;
(b) an administrator, trustee, liquidator, provisional liquidator, receiver, receiver and manager or other insolvency administrator is appointed over all or any part of the other party’s assets;
(c) the other party becomes insolvent, or a party believes, on reasonable grounds that the other party is, or may become, insolvent;
(d) the other party becomes bankrupt, or a party believes, on reasonable grounds, that the other party is, or may become, unable to pay the other party’s debts as and when they fall due;
(e) the other party ceases to carry on the other party’s business or ceases to pay its debts or suspends payment generally; or
(f) the other party enters into, or propose to enter into, any scheme, composition or arrangement with the other party’s creditors generally or with any class of the other party’s creditors or a meeting is convened for any such purpose.
9.4 Termination for convenience
(a) Subject to the payment of any applicable Early Termination Fee, Customer may terminate this Agreement in whole or in part on 60 days’ written notice to Adstream.
(b) Adstream may terminate this Agreement in whole or in part on 30 days’ written notice to Customer.
9.5 Consequences of termination
(a) Termination of this Agreement will result in immediate termination of Customer’s access to the Adstream Products.
(b) On termination of this Agreement for any reason:
(i) Customer must promptly return to Adstream all of Adstream’s property that is in Customer’s possession or control; and
(ii) Adstream will, provided that Customer has complied with all of Customer’s obligations in this Agreement (including payment obligations) promptly return all materials and files owned by Customer in Adstream’s possession or control, in a format as may be agreed between the parties, and Customer will be responsible for Adstream’s reasonable costs in doing so.
Clauses 5 and 6 of these General Terms, together with any term of a Products Schedule which is expressed to, or is by its nature intended to, survive the termination or expiry of this Agreement, survive termination or expiry of this Agreement.
(a) Customer may not assign or otherwise deal with all or any of Customer’s rights or obligations under this Agreement without Adstream’s prior written consent.
(b) Adstream may assign or otherwise deal with all or any of Adstream’s rights and obligations under this Agreement on giving notice to Customer.
10.2 Variation and Waiver
A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
(a) A notice, approval, consent or other communication in connection with this Agreement must be in writing and hand delivered, sent by prepaid mail or facsimile to the addressee set out in the Details section on the front of this Agreement.
(b) A notice or other communication takes effect when received or otherwise:
(i) in the case of a posted letter – from the third day after posting; and
(ii) in the case of a facsimile – from the production of a facsimile transmission report from the machine from which the notice was sent showing the facsimile to have been successfully sent to the correct facsimile number in its entirety.
If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
10.5 Entire agreement
This Agreement set out the entire agreement between the parties concerning all matters dealt with by it, and supersedes any prior agreement between the parties in regard to those matters.
10.6 Causes beyond Adstream’s reasonable control
If Adstream is delayed, interrupted in, or prevented from, performing its obligations under this Agreement by any cause beyond its control, Adstream will not be in breach of this Agreement and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention.
10.7 Governing law and Jurisdiction
This Agreement is governed by the law in force in the State of New South Wales. Each party submits to the exclusive jurisdiction of the courts of that place.