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Welcome to the Hens.com.au Webcasting Advertising Agreement
This Agreement is entered into by and between Sucheta Kotwal trading as WWW.HENS.COM.AU (Reg'd No. BN 98108814) (“we”, “us” or “Website Owner”) and the person referred to on the Booking Confirmation page (“you”, “your” or “Advertiser”). The parties agree as follows:
1. Purpose and Background.
We own and operate the “Hens.com.au” website which has the following URL : www.hens.com.au (the “Website”). We offer various advertising packages with a variety of ways of calculating fees. Please refer to Rate Card for fee structure.
2. Non-Exclusivity.
It is understood that we have other advertisers on our website including advertisers that may be your competitors.
3. Term Fees and Payments.
Your advertisement will appear on our Website for the period of 12 months commencing from date of our receipt of payment of the Fee in the sum set out on the Booking Confirmation page.
4. Term and Termination.
Either party may terminate this agreement in the event of breach of a term of this Agreement by the other party, upon the failure of the party in default to remedy such breach within seven days of receipt of written notice of breach from the non-defaulting party.
5. Representations and Warranties.
5.1 We represent and warrant that We own and control the Website.
5.2 You represent and warrant that:
(a) You have the full right to enter into and perform this Agreement.
(b) You further have full right and authority to sell all services, products, goods and any downloads that you sell or otherwise make available.
(b) You own all interest in and to the names, marks and logos that you are authorising us to use in connection with your advertising on our website including your logos.
(c) The advertising and sale of your goods and or services is not in breach of any law including without limitation, passing off, misleading and deceptive conduct, false advertising, fraud, deceit, infringement of copyright, defamation or any action at law or equity.
(d) The goods and services advertised on our web site by you are properly represented and suitably described in your advertisement, are where the context so admits, fit and proper for the purpose and of a merchantable quality suitable for sale.
6. Trademarks; Approvals.
We acknowledge that you are the owner of all rights, title and interest in the trademarks and service marks of your company and that we acquire no rights whatsoever in those marks by virtue of this Agreement. You acknowledge that we, and/or our licensor(s), are the owner of all rights, title and interest in the names, logos and/or marks of the Website and further that you acquire no rights whatsoever in those names, logos and/or marks by virtue of this Agreement and all benefits therein shall inure to the benefit of the owner.
7. Taxes.
7.1 All Fees and amounts payable under this agreement are expressed exclusive of goods and services tax.
7.2 If goods and services tax (“GST”) is payable in respect of payments, goods or services or any consideration under this Agreement the consideration will be increased by the amount of GST, provided that:
(a) the supplier/recipient of the consideration is registered for purposes of GST, and
(b) the supplier/recipient of the consideration provides to the party paying a valid tax invoice in accordance with A New Tax System (Goods and Services Tax) Act, 1999 including Regulations, Amendments and related Acts.
8. Limitation of Liability.
8.1 Under no circumstances shall either party be liable to the other for special, incidental, consequential, indirect, punitive or other similar damages, even if such party, or any of its representatives or agents, have been advised of the possibility of such damages. Our liability shall be limited solely to the amount of advertising fees paid by you under this agreement.
8.2 We take no responsibility for the content or accuracy of your advertising or the merchantability of your goods or services. We rely entirely upon you to ensure you fully comply with all your legal obligations as an advertiser and vendor or supplier.
8.3 You warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by us.
8.4 You shall at all times indemnify and hold us and our officers, employees and agents licensees and assigns ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) a breach by you of your obligations under this Agreement; or
(b) any wilful, unlawful or negligent act or omission by you.
8.5 We shall be under no liability to you for any loss or damage which may be suffered by you in respect to services supplied under this agreement including any liability for any outage, drop-out, or other service, connection, routing or transmission fault or other software, data, electronic or other failure, error or difficulty in respect to access use operation and content of our Web site. We disclaim to the fullest extent permissible by law any liability for loss or damage suffered by you arising out of the operation of our web site. We may in our absolute discretion agree to grant you some free advertising time where there is an outage of our site in excess of 24 hours.
9. Notices.
All notices shall be in writing and shall be delivered, faxed, emailed or sent by registered or certified mail, postage fully prepaid, with a copy sent by ordinary mail.
10. Confidentiality.
10.1 Each of the parties agrees that any confidential information of one of the parties (the “Disclosing Party”) to the other party (the “Receiving Party”) as provided in connection with this Agreement will be maintained in confidence and not used except as contemplated under this Agreement by the Receiving Party. Such information is referred to herein as the “Confidential Information.”
10.2 Our Confidential Information includes, but is not limited to, the terms of this Agreement and the number of hits our web site receives, all data we collect in the course of operation of our web site save that we agree to share with you any information as to the number of click throughs to your web site from ours if such data is collected by us. Your Confidential Information includes, but is not limited to, the number of click-throughs to your website and sales connected with such click-throughs.
10.3 Notwithstanding any other provision of this Agreement, Confidential Information shall not include:
(a) information which is, or subsequently becomes, within the knowledge of the public generally through no fault of yours;
(b) information which you can substantiate by written documentation was known to you at the time of receipt;
(c) information which is subsequently obtained lawfully from a third party who had obtained the information free of any confidentiality obligations; or
(d) information which is independently developed by you.
10.4 Each of the parties agrees that the Confidential Information of the other party will be maintained in confidence and will not disclose or use such information except as provided herein or as reasonably required for the purposes provided herein and in that regard only to employees, with a need to know, who have entered a binding written agreement not to disclose such information. Such information may also be provided to contractors, financial advisors and attorneys on a “need to know” basis who are legally committed to maintain such confidentiality.
11. Assignments.
11.1 The benefits and obligations of each of the parties under this Agreement may be assigned by us.
11.2 The benefits and obligations of each of the parties under this Agreement may be assigned by you subject to our written consent.
12. Governing Law.
12.1 This Agreement shall be governed by and construed in accordance with the laws of New South Wales Australia and the parties agree to submit to the jurisdiction and forum of the courts and tribunals of New South Wales Australia which the parties hereby agree shall be lex loci (applicable laws) lex fori (applicable courts) and forum conveniens (most suitable place for hearing).
12.2 In the event of any inconsistency or conflict of laws notwithstanding any choice of law rule the parties agree that the laws of New South Wales Australia shall prevail.
13. Severability.
The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
14. Variation
This agreement may only be varied in writing signed by both parties. No waiver or consent can be relied upon by either party.
15. Force Majeure
Neither party shall be held liable for any delay or failure in performance of any part of this Agreement (with the exception of the payment of money owed) from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, terrorism, current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers.
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