Terms & Conditions
SHAREITAGE PODCAST TERMS AND CONDITIONS
1. Definitions and interpretation
1.1 In this Agreement the following definitions apply:
Agreement: means the contract between the Customer and Shareitage comprised of this document and the Contract Details.
Business Days: means any day that is not Saturday, Sunday or a public holiday in Perth, Western Australia.
Customer: means the party described as the Customer in the Podcast Plan.
Document: includes, in addition to any document in writing, any audio recording, drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
In-put Material: means all Documents, information and materials provided by the Customer relating to the Services.
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: means all Documents, information and materials provided by Shareitage to the Customer relating to the Services which existed prior to the commencement of this agreement and includes any pre-existing materials specified in the Podcast Plan.
Podcast: means the personal podcast prepared in connection with the Podcast Plan.
Podcast Materials: means all Documents, products and materials developed by Shareitage or its agents, subcontractors, consultants and employees in relation to the Podcast.
Podcast Plan: means the plan for the Podcast submitted by the Customer to Shareitage, which Shareitage accepts by written notice, as amended by clause 5 of this Agreement.
Relevant Person: means a person with which Shareitage is instructed to engage by the Customer in providing the Services.
Services: means the services provided or to be provided by Shareitage to the Customer under this Agreement.
Shareitage means Rubicon Communications Pty Ltd ABN 81 146 795 957 trading as Shareitage..
1.2 Clause, schedule and paragraph headings do not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Words in the singular include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.7 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. Commencement and duration
2.1 This Agreement commences on the date that Shareitage confirms by written notice to the Customer that the Podcast Plan submitted to Shareitage by the Customer has been accepted.
2.2 This Agreement terminates on the date the Podcast is provided to the Customer by Shareitage or the date on which it is terminated in accordance with its terms.
3. Shareitage's obligations
Shareitage must use reasonable endeavours to:
3.1 Provide the Services to the Customer in accordance with the Podcast Plan;
3.2 Provide regular updates on the status of the Services against the Podcast Plan and otherwise keep the Customer advised of the progress of the Services;
3.3 observe all health and safety rules and regulations and any other reasonable security requirements notified to it by the Customer in relation to the Customer's premises or the premises of a Relevant Person.
4. Customer's obligations
The Customer must:
4.1 Co-operate with Shareitage in all matters relating to the Services;
4.2 Provide or ensure the timely provision of such In-put Material and other information as Shareitage may reasonably require in order to provide the Services, and ensure that it is accurate in all material respects;
4.3 Inform Shareitage of any health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises or the premises of any Relevant Person.
5. Change in Podcast Plan
5.1 Each of Shareitage and the Customer acknowledge and agree that the Podcast is a creative project and that some changes to the Podcast Plan by Shareitage may be necessary or desirable because of:
5.1.1 the unavailability of the Customer, a Relevant Person or In-put Material; or
5.1.2 any change in, or the introduction of new, laws or regulations that make the Podcast Plan unachievable or fundamentally alters the effort associated with the Podcast Plan,
(each a Change Event).
5.2 If a Change Event occurs, Shareitage may provide a notice to the Customer (Change Notice) setting out:
5.2.1 the Change Event;
5.2.2 the impact of the Change Event on the Podcast Plan;
5.2.3 any variations to the Podcast Plan that Shareitage considers is necessary or desirable in order to deliver the Podcast; and
5.2.4 Shareitage's reasonable estimate of the increase to its charges that would be required to put Shareitage in the position it would have been financially, but for the Change Event.
5.3 The Customer must within 2 Business Days following receipt of a Change Notice confirm whether it accepts or rejects the Change Notice.
5.4 If the Customer accepts the Change Notice, the Podcast Plan will be deemed to have been amended in accordance with the Change Notice.
5.5 If the Customer rejects the Change Notice, either of the Customer or Shareitage may terminate this Agreement on 1 Business Day’s written notice.
6. Charges and payment
6.1 In consideration of the provision of the Services by Shareitage, the Customer shall pay the charges described in the Podcast Plan in accordance with the due date and payment methodology stipulated in the Podcast Plan.
6.2 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Shareitage on the due date described in the Podcast Plan, Shareitage may suspend all Services until payment has been made in full.
6.3 All sums payable to Shareitage under this Agreement shall become due immediately on its termination, despite any other provision. This clause 6.3 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
7.1 In this clause 7:
7.1.1 GST has the meaning given to that term in the GST Law;
7.1.2 GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
7.1.3 the terms adjustment note, recipient, supply, tax invoice and taxable supply have the meanings given to those terms in the GST Law.
7.2 All amounts payable under this Agreement are expressed as being inclusive of GST.
7.3 If there is a taxable supply under or in connection with this Agreement, then the recipient must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to, and at the same time as, payment for the taxable supply is required to be made under this Agreement.
7.4 The supplier must provide a tax invoice (or an adjustment note) to the recipient in respect of the taxable supply and the obligation of the recipient to pay the GST on a taxable supply is conditional on the supplier providing a tax invoice or adjustment note.
8. Intellectual property rights
8.1 As between the Customer and Shareitage, all Intellectual Property Rights and all other rights in the:
8.1.1 In-put Materials are owned by the Customer; and
8.1.2 subject to clause 8.1.1, Podcast, Podcast Materials and the Pre-existing Materials are owned by Shareitage.
8.2 Subject to clause 8.4, Shareitage licenses all such rights owned by it to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable, non-commercial, use of the Podcast.
8.3 The Customer licenses all such rights owned by it to Shareitage free of charge and on a non-exclusive, world-wide basis to such extent as Shareitage considers it necessary or desirable to promote Shareitage’s services.
8.4 The Customer acknowledges that, where Shareitage does not own any of the Pre-existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on Shareitage obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Shareitage to license such rights to the Customer.
9.1 Subject to clause 9.2, Shareitage must not disclose information provided to it by the Customer and any Relevant Person, except in order to:
9.1.1 perform the Services;
9.1.2 prepare a variation to the Podcast Plan; or
9.1.3 where Shareitage considers it necessary to do so in order for Shareitage to comply with any legislative or regulatory provision imposed on it or to which Shareitage voluntarily wishes to submit.
9.2 The Customer consents and must ensure the consent of any Relevant Person to Shareitage retaining part of all of the Podcast and Podcast Materials in order for Shareitage disclose for promotional purposes.
10. Limitation of liability
10.1 If the Customer is a “consumer” under the Australian Consumer Law, Shareitage does not exclude any guarantees that are implied under the Australian Consumer Law to the extent Shareitage is unable to do so.
10.2 Subject to clause 11, neither party is liable to the other party for any indirect, consequential or pure economic loss arising in connection with this Agreement.
10.3 Subject to clauses 10.1 and 10.2, Shareitage excludes its liability to the Customer:
10.3.1 for any loss caused by the Customer or any third party;
10.3.2 for any loss associated with Shareitage’s conduct in connection with this Agreement, except to the extent that it arises as a direct result of Shareitage’s negligence, willful default of this Agreement or the death or injury of any person arising as a direct result of Shareitage’s conduct.
10.4 Any liability of Shareitage to the Customer not excluded under this Agreement is limited to the aggregate fees actually paid to Shareitage by the Customer.
11.1 The Customer indemnifies Shareitage against all claims, losses, demands or liabilities incurred or to be incurred by Shareitage in relation to a claim by any third party arising in connection with any statement made by the Customer or a Relevant Person in a Podcast or in Podcast Materials.
11.2 If Shareitage intends to rely upon the indemnity referred to in clause 11.1, it must provide a notice to the Customer setting out the particulars of any claim, loss, demand or liability described in clause 11.1 and the amount payable by the Customer.
11.3 The Customer must on receipt of such notice pay Shareitage the amount notified in the manner described in the notice.
12 Suspension of Services and termination
12.1 Shareitage may by written notice to the Customer suspend the Services:
12.1.1 for as long as the Customer is in breach of clause 6 of this Agreement; or
12.1.2 if an event occurs that in Shareitage’s reasonable opinion:
(a) prevents or delays Shareitage from performing the Services; or
(b) materially increases the costs of Shareitage performing the Services
(each a Suspension Event).
12.2 A notice issued to the Customer by Shareitage under clause 11.1 must describe the reason for the suspension.
12.3 Shareitage must use reasonable endeavours to reduce the duration of a Suspension Event.
12.4 For the duration of any suspension of Services Shareitage must, at the Customer’s request, promptly advise the Customer of the anticipation duration of the suspension of Services and the date on which Shareitage considers it will recommence providing Services.
12.5 Either party may terminate this Agreement if a continuing Suspension Event has been in effect for more than two months.
12.6 This Agreement terminates on and from the date the Podcast is provided to the Customer.
12.7 The accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
12.8 Clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: 6 (Charges and payment), clause 8 (Intellectual property rights), clause 9 (Privacy), clause 10 (Limitation of liability), clause 12 (Dispute resolution) and clause 13 (General).
13. Dispute resolution
13.1 If any dispute arises in connection with this Agreement, Shareitage and the Customer shall, within 5 Business Days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
13.2 Nothing in this clause 12 prevents a party from commencing or continuing court proceedings.
14.1 This Agreement can only be varied by the parties in writing, signed by all of the parties.
14.2 The fact that a party fails to do, or delays in doing, something that party is entitled to do under this document does not amount to a waiver of that party’s right to do it.
14.3 A waiver by a party is only effective if it is in writing.
14.4 A written waiver by a party is:
14.4.1 only effective in relation to the particular obligation or breach in respect of which it is given; and
14.4.2 is not to be taken as an implied waiver of:
(a) any other obligation or breach; or
(b) that obligation or breach in relation to any other occasion.
14.5 This Agreement contains everything that the parties have agreed on in relation to the matters it deals with. No party can rely on an earlier document, or anything said or done by another party (or a director, officer, agent or employee of that party), before the date on which this Agreement commenced.
14.6 If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this Agreement is not affected.
14.7 Each party must do anything (including executing a document) another party reasonably requires in writing to give full effect to this Agreement.
Relationship of the parties
14.8 This Agreement does not create a partnership, agency, fiduciary or any other relationship, except the relationship of contracting parties, between the parties.
14.9 No party is liable for an act or omission of another party, except to the extent set out in this Agreement.
Governing Law and Jurisdiction
14.10 This Agreement is governed by the Law of the State of Western Australia. The parties submit to the non-exclusive jurisdiction of its courts. The parties will not object to the exercise of jurisdiction by those courts on any basis.
14.11 Each party is responsible for all costs relating to the negotiation and execution of this Agreement.
14.12 A notice or other communication given to a party under or in connection with this Agreement shall be in writing in English and delivered by email to the other party’s nominated email address.
14.13 If a notice or other communication has been properly sent or delivered in accordance with this clause, it will be deemed to have been received at the time it is recorded as being sent by the server from which the email is sent.