This Terms of Service Agreement sets out the terms and conditions on which ServePoint Pty Ltd Trading as NameKast will provide the Services to the Customer over a 12 month period (“Agreement”).
ServePoint Pty Ltd Trading as NameKast obligations
1. In consideration for the payment of the fees set out in Schedule 1 (“Fees”), ServePoint Pty Ltd Trading as NameKast will provide the Customer with the following services set out in Schedule 1 including a selection of ASIC registered trade names, domain names, websites, logo design, hosting and webmail (the “Services”) in accordance with the terms and conditions of this Agreement.
2. Design of Website: ServePoint Pty Ltd Trading as NameKast will:
a. Design the Website using brand images and logos supplied or purchased from ServePoint Pty Ltd Trading as NameKast by the Customer, and otherwise in accordance with the Customer’s instructions from time to time;
b. Ensure that at all times the Website is:
i. set up in a way which enables the Customer to collect such information as reasonably required by the Customer from customers (“Customer Data”);
ii. set up and operated in a manner which complies with all applicable laws, including the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), and the privacy and compliance principles set out in Schedule 2;
iii. if selected by the Customer is hosted and maintained in a secure Melbourne IT data center. The hosting servers will be installed with McAfee Secure or similar vulnerability management services;
c. Ensure that the Website does not contain controversial issues, political, religious, sexual or racial material, obscene language, sexual or pornographic references, pictures or images or any anti-social material and otherwise comply with all applicable laws, advertising standards, codes of conduct, codes of ethics, codes of practice and guidelines developed, administered or managed from time to time by regulatory organisations and industry groups.
d. ensure all suppliers and customers comply with all applicable laws including the Privacy Amendment (Enhancing Privacy Protection) Act 2012 , the Do Not Call Register Act 2006 and the Spam Act 2003;
e. Deliver the following reports to the Customer as requested by the Customer:
i. (“Reports”) reports will be required detailing the number of competition entries, number of click-throughs on banner ad-tiles, number of completed surveys, income generated; cost of outgoings; net revenue status of campaign (income generated minus outgoings), affiliate networks used for traffic, total cost of traffic buy, number of competition entries generated from traffic buy.
The Customer’s obligations
3. Fees: The Customer will pay ServePoint Pty Ltd Trading as NameKast the fees as set out in Schedule 1.
4. Traffic: The Customer will source and pay for traffic for the Website. The Customer may request ServePoint Pty Ltd Trading as NameKast to source additional traffic, which ServePoint Pty Ltd Trading as NameKast may accept to undertake on a case by case basis and for a fee to be determined prior to the undertaking.
5. Branding/logos: The Website will be branded using logo’s and creative images supplied or purchased by the Customer. The Website will not be released into production until the Customer has confirmed in writing that they have approved the cosmetic appearance and functionality.
Term and Termination
6. Term: This Agreement commence on the date it is signed by both parties and remains in force until terminated by either party in accordance with this clause.
7. Termination: Either party may terminate this agreement immediately upon written notice if:
a. the other party breaches this agreement and fails to remedy that breach within fourteen days of notice from the terminating party; or
b. the other party terminates or suspends its business activities; or
c. Legislation or governmental regulations prohibits the provision of the Microsite and/or Competition.
8. Termination by the Customer: The Customer may terminate this agreement by giving ServePoint Pty Ltd Trading as NameKast thirty (30) days written notice and paying ServePoint Pty Ltd Trading as NameKast any Fees due and payable in accordance with Schedule 1.
9. Duties on Expiration or Termination: On termination or expiry of this agreement:
a. ServePoint Pty Ltd Trading as NameKast will immediately upon payment of any outstanding Fees, cease using any material provided by the Customer to ServePoint Pty Ltd Trading as NameKast;
b. ServePoint Pty Ltd Trading as NameKast will provide the Customer with a copy of the Website, all Customer Data and Reports;
c. each party will immediately return all intellectual property of the other party and/or destroy all data and information obtained from the other party.
Confidentiality & Intellectual Property
10. Confidentiality: Any data or information supplied by one party to the other party in providing the Website or its obligations under this Agreement or collected by ServePoint Pty Ltd Trading as NameKast under this Agreement (including for the avoidance of doubt any Customer Data) must be kept confidential and not disclosed to any person, except to the extent that disclosure is required by law, and may only be used for the purposes set out in this Agreement.
11. Intellectual Property: Each party is and remains the sole owner of all data, works, items, materials, documents and information (“Existing Works”) and the intellectual property rights in Existing Works that is owned at the time of becoming a party to this Agreement. ServePoint Pty Ltd Trading as NameKast assigns to the Customer, upon its creation, all intellectual property rights of any kind (subsisting anywhere in world) including copyright directly or indirectly arising out of or in connection with customization of the Website for the Customer and any Customer Data collected using the Website. For the avoidance of doubt, ServePoint Pty Ltd Trading as NameKast will own all rights to the software, tools and design that comprise the Website.
Cooperation and Dispute Resolution
12. Relationship: Nothing in this Agreement is intended to create a partnership, agency, joint venture or fiduciary relationship between the parties or establish any party as an agent or representative of any other party. Neither party has authority to act for, or incur any obligations on behalf of the other, except as provided for in this Agreement.
13. Dispute resolution: Any dispute under this Agreement will be handled via discussions between senior management of both parties.
14. To the extent permitted by law, ServePoint Pty Ltd Trading as NameKast’s liability to the Customer for damages in contract, tort, or under any statute or regulation in the performance of or incidental to the supply of Services or the Website, shall be limited to the re-supply of the Services and/or Website. Each party shall have a duty to mitigate damages for which the other party may be responsible.
15. Neither party shall in any event be liable to the other (whether in contract, tort including negligence pursuant to statute or otherwise) for any loss of production, loss of business, revenue or profit or any other special, indirect, incidental or consequential damages, whether or not the possibility of such damages could have been reasonably foreseen.
16. Interpretation: In this clause: –
GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to the GST law or otherwise on a supply:
GST Act means a New Tax System (Goods and Services Tax) Act 1999 (Cth);
GST Law has the same meaning as in the GST Act;
Tax Invoice includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.
a. Any reference in this clause to a term defined or used in the GST Act is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
b. Any amount referred to in this agreement which is relevant in determining a payment to be made by one of the parties to the other is exclusive of any GST unless indicated otherwise.
c. If GST is imposed on a supply made under or in connection with this agreement, the consideration for the supply is increased by the rate at which the GST is imposed. The additional consideration is, subject to the supplier issuing a tax invoice to the recipient, payable at the same time and in the same manner as the consideration to which it relates.
d. Whenever an adjustment event occurs in relation to any taxable supply to which clause 21(c) applies:
i. the supplier must determine the amount of the GST component of the consideration payable;
ii. if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as the case may be; and
iii. the supplier must issue an adjustment note in relation to the adjustment event when required by the recipient.
e. If one of the parties to this agreement is entitled to be reimbursed for an expense or outgoing incurred in connection with this agreement, then the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed (or its representative member) in relation to that expense or outgoing.
General Terms & Conditions
18. Compliance with the law: In delivering the Website and/or providing the Services, both parties shall comply will all relevant law, including but not limited to the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), the Do Not Call Register Act 2006 (Cth) and the Spam Act 2003 (Cth). Both parties warrant to each other that providing the Website and/or Services does not conflict with any obligation or duty owed to any third party, nor infringe the rights of any third party.
19. Assignment: ServePoint Pty Ltd Trading as NameKast may transfer, assign or novate part or all of this agreement to any Customer in respect of any proposed merger, acquisition, asset purchase, debt or equity financing, factoring arrangement or change of control of ServePoint Pty Ltd Trading as NameKast, without the consent of the Customer.
20. Governing Law: This agreement is governed by the laws of the State of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of that State and of all courts competent to hear appeals from those courts.
Schedule 2 – Privacy and Compliance
ServePoint Pty Ltd Trading as NameKast has implemented an effective privacy and security program consistent with the Australian Privacy Principles as set out in the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth).
To achieve this, ServePoint Pty Ltd Trading as NameKast will:
• Collect personal information in a manner consistent with the collection requirements of the Australian Privacy Principles and to address the requirements of express consent defined in the Do Not Call Register Act 2006 and the Spam Act 2003
• Where relevant, have contracts with all suppliers and customers specifying their responsibilities for compliance with the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), the Do Not Call Register Act 2006 (Cth) and the Spam Act 2003 (Cth).
• Respect the legal and moral rights of consumers and provide them with the opportunity to opt-out from third party use of information, and to request access to their personally identifiable information for update and corrective purposes
• Have implemented user authentication and security to computer hardware and software applications to help ensure only authorised parties are permitted access to the identifiable information
• Have contracts with system administration specialists to review and/or update operating systems and data management applications on a monthly basis with the aim to minimise the potential for security violations