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My Wedding Concierge

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RECITALS:

A.   The Provider owns and operates the Business on the Website.
B.   The Subscriber subscribes to the Provider and the Provider consents to the Subscriber’s Details being included in the Directory.
C.   The parties have entered into the Agreement to record the terms and conditions of the arrangement reached between them.


DEED TERMS:


1. DEFINITIONS

Directory
means the list of wedding service providers who subscribe to the Provider.

Advertising Space
means the advertising space on the website which has been agreed upon by the Parties and as detailed in the Specifications Sheet.

Agreement
means this Subscription Agreement.

Business
means the business of providing to the Customers an online comparison system whereby Customers can compare goods, services and prices of subscribers through the Directory.

Claim
means any complaint, action, suit, cause of action, proceedings, arbitration, account, cost and expense (including any legal cost and expense), demand, verdict or judgement arising under the provisions of any statute, award, order or determination.

Content
means the content which will appear in the Advertising Space.

Customers
means the customers and users of the Website.

GST
means a Goods and Services Tax as defined pursuant to the provisions of A New Tax System (Goods and Services Tax ) Act 1999 (Cth).

Party
means a party to this Agreement.

Provider
means the Provider and its employees, contractors, agents and any other person engaged or contracted by the Provider.

Renewal Fee
means the amount set out in the Specification Sheet.

Services
means any products or services provided by the Subscriber.

Specification Sheet
means the specification sheet attached hereto and marked as ‘A’.

Subscriber
means the Subscriber named in the Specification Sheet and includes any employee, contractor, agent, invitee, consultant or other person employed, engaged, contracted or otherwise controlled by the Subscriber.

Subscriber’s Details
means the details specified in the Specification Sheet.

Subscription Fee
means the amount specified in the Specification Sheet. means the period specified in the Specification Sheet.

Subsequent Term
means the amount specified in the Specification Sheet.

Term
means the amount specified in the Specification Sheet.

Website
means the website www.myweddingconcierge.com.au.


2. INTERPRETATION

2.1  In this Agreement, unless the context requires otherwise:
(a)  Words importing the singular number include the plural number and vice versa;
(b)  Words importing any gender include the other genders;
(c)  Words importing the whole of the matter or thing include a part of the matter or thing;
(d)  A reference to statute includes a reference to an enactment, amendment or consolidated statute and any enactment substituted for the enactment;
(e)  Reference to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;
(f)  All warranties, representations, undertakings, indemnities, covenants, guarantees and obligations entered into by more than one person are entered into jointly and severally.

2.2  Headings in clauses to this Agreement do not form part of the clause. Headings are included in this Agreement for convenience only and shall not be used to interpret this Agreement.

3. SUBSCRIPTION

3.1  The Provider grants to the Subscriber the right to advertise the Content in the Advertising Space on the Website and to include the Subscriber’s Details in the Directory on the Website for the duration of the Term.
3.2  In consideration of clause 3.1, the Subscriber must pay to the Provider the Subscription Fee on or before the day which is ten (10) business days prior to the commencement of the Term via the Website by way of either:
(a)  Paypal; or
(b)  direct credit card payment.
3.4 The Subscriber must provide to the Provider the Subscriber’s Details and any other information reasonably required by the Provider on or before the day which is ten (10) business days prior to the commencement of the Term.

4. CREATIVE CONDITIONS AND SPECIFICATIONS

4.1  The Subscriber must provide to the Provider the Content within five (5) business days prior to the commencement of the Term in a format which is compatible with the operating system of the Website.
4.2  The Provider may, in its absolute discretion, reject the Content from being advertised on the Website and in the event this occurs, the Subscriber shall provide to the Provider amended Content in accordance with the Provider’s requirements within five (5) business days of the date upon which the Provider advises the Subscriber that their Content has been rejected.
4.3  In the event the Subscriber fails to meet the Provider’s Content requirements in accordance with clause 4.2, the Subscriber will forfeit any moneys paid to the Provider, however, the Provider may, in its absolute discretion refund all or part of the moneys paid by the Subscriber.
4.4 Notwithstanding the provisions of this clause 4, the Provider may, in its absolute discretion:
(a) at any time, and without prior notice to the Subscriber, modify the Subscriber’s Content by removing, inserting, amending and/or correcting the Content appearing on the Website;
(b) create the Subscriber’s Content, without prior notice to the Subscriber, if the Subscriber fails to provide the Content in accordance with the provisions of clauses 4.1 and 4.2 or within five (5) business days of the Provider notifying the Subscriber, pursuant to the provisions of clause 6.1(h) of this Agreement, that the Subscriber is to update the Content contained on the Subscriber’s Advertising Space.

5. RENEWAL OF TERM

5.1  The Subscriber acknowledges and agrees that:
(a)  in order to renew this Agreement for the Subsequent Term, the Subscriber must pay the Renewal Fee to the Provider on or before the expiry of the Term via the Website by way of either:

  1. Paypal; or
  2. direct credit card payment;

(b)  the Renewal Fee is subject to change without notice; and
(c)  the Subscriber must make enquiries with the Provider in order to confirm the up to date Renewal Fee prior to making payment in accordance with this clause 5.1.
5.2  In the event payment is not provided in accordance with clause 5.1, this Agreement will be terminated upon expiry of the Term and the Parties’ contractual relationship will be severed.
5.3  The parties acknowledge and agree that upon renewal of this Agreement pursuant to this clause 5, the Parties continue to be bound by the terms and conditions contained herein for the period of the Subsequent Term as if the commencement of the Subsequent Term constituted the commencement of the Term.


6. WARRANTIES AND INDEMNITIES

6.1 The Subscriber warrants to the Provider that, for the duration of the Term and any Subsequent Term:
(a)  that the Content will comply with all relevant laws and regulations and that the Provider's publication of the Content on the Website will not give rise to any Claim
(b)  it will use the Website for lawful purposes only; 
(c) it will comply with the terms of this Agreement and any other terms and conditions implemented by the Provider, from time to time;
(d)  it will only use the Advertising Space personally allocated to the Subscriber by the Provider;
(e)  the Subscriber’s Details and any other information provided to the Provider are accurate and up to date;
(f) it will not raise any requisitions or objections to the Provider removing, inserting, amending and/or correcting or creating the Content appearing on the Website in accordance with the provisions of clause 4.4(a) and (b) of this Agreement;
(g) it is duly licensed with any relevant regulatory board and other body, council or authority required to enable the Subscriber to legally practice and deliver its Services;
(h)  it will maintain any and all qualifications, certifications, licenses and permits necessary to provide Services to the Customers;
(i)  it will ensure the Advertising Space is, at all times, accurate and up to date by maintaining the Advertising Space on a regular basis or, in any event, as often as the Provider reasonably requires;
(j)  it will comply with all laws, rules, regulations, industry codes or other instruments and authorities;
(k)  it will promptly provide a quote to the Customer upon receiving a query through the Website;
(l)  it will promptly contact the Customer upon receiving a direct query as a result of the Website;
(m)  it will provide its Services to Customers in a professional manner;
(n)  it will maintain all insurance policies, including but not limited to Professional Indemnity Insurance and Public Liability insurance reasonably required in relation to the Services offered by the Subscriber;
(o)  it will keep its log-in and password to the Website confidential and will implement reasonable safeguards to ensure that the same is kept safe and confidential at all times;
(p)  it will not sell, distribute, decompile, reverse engineer or otherwise deal with the Website and the material and content contained therein without the Provider’s prior, specific, written consent;
(q)  it will not undertake any action or do anything which would:

  1. threaten, abuse, defame, harass, cause distress to or inconvenience or incite hatred of, or in, any person;
  2. bring disrepute to the Provider, the Website or the Business; 5
  3. violate or infringe upon the rights of any person (including, but not limited to, their intellectual property, privacy and publicity rights);
  4. restrict or inhibit any person from using or enjoying the Website;
  5. encourage conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law;
  6. affect the functionality or operation of the Website (including, but not limited to, the Directory and the Advertising Space) or its servers or the functionality or operation of any computer system;
  7. exploit the Provider, the Website or the Business for commercial purposes other than those contemplated by this Agreement;
  8. breach any standards, content requirements or codes promulgated by any authority;
  9. cause confusion or act in a manner which is misleading or deceptive including, but not limited to, listing specials or pricing which are not available or do not exist.

6.2  The Subscriber further warrants to the Provider that it will promptly notify the Provider of:
(a)  any change or alteration to the Subscriber’s Details or other information provided to the Provider;
(b)  any breaches of any laws, rules, regulations, industry codes which is likely to impact the Subscriber’s ability to provide services to the Customers;
(c)  any complaints received by the Subscriber from any person relating to the Provider, the Website, the Directory, the Advertising Space or the Business;
(d)  any proceedings, whether legal or disciplinary or otherwise, to which the Subscriber becomes a party;
(e)  any compromise to the security of its log-in and password.
6.3  The Subscriber indemnifies the Provider, its directors, employees and agents against:
(a)  any Claim arising in relation to the Content; and
(b)  any other Claim arising from the Provider's failure to publish the Content on the Website during the Term due to reasons outside the Provider's control; and
6.4  Without limiting the generality of clause 6.3, the Subscriber indemnifies the Provider, its directors, employees and agents against any Claims arising from: 
6
(a)  defamation, libel or slander of title;
(b)  infringement of copyright;
(c)  infringement of trademarks or names of publications titles;
(d)  unfair competition;
(e)  breach of trade practices or fair trading legislation; and
(f)  violations of rights of privacy or confidential information or licenses or royalty rights or other intellectual property rights.
6.5 The Subscriber further warrants to the Provider that it will not add any customer details to any mailing list or use the Customer details for any purpose other than authorized by the Customer.


7. WARRANTIES NEGATED

7.1  The Subscriber acknowledges and agrees that:
(a)  the terms and conditions contained in this Agreement represent the entire agreement concluded between the parties as at the date hereof;
(b)  before entering into this Agreement, the Subscriber made its own investigations and enquiries and satisfied itself as to the suitability or otherwise of the Business and the Website for the Subscriber;
(c)  the Subscriber has not been induced to enter this Agreement by, nor does it rely on any warranty, statement or representation made or given by the Provider or on behalf of the Provider whether or not it is set out in this Agreement;
(d)  the Provider is not a party to any dealings, contracts, arrangements, agreements or otherwise between the Subscriber and the Customers;
(e)  all rights (including copyright) in the material and content of the Website and the compilation of the web pages and online images (including, but not limited to text, graphics, logo, button icons, video images, audio clips and software) are owned or controlled and reserved by the Provider;
(f)  the Website contains product names and images which are registered Trade Marks owned by the Provider and its affiliates and third (3rd) party providers and the use and misuse of such Trade Marks, except as expressly authorised by the Provider, is strictly prohibited; and
(g)  it will be bound by and comply with the provisions of the Privacy Act (Cth) 1988 and the National Privacy Principles in dealing with any information provided to the Subscriber by the Customer or the Provider.
7.2  The Subscriber indemnifies and releases the Provider and the Subscriber shall not be entitled to make any objection, requisition or Claim for damages or compensation nor be entitled to terminate this Agreement for any and all matters relating to the Business, the Website, the Provider and the Customers including, but not limited to:
(a)  a promise, representation or statement about the Agreement, the Business, the Website, the Provider or the Customers;
(b)  any dealings, contracts, arrangements, agreements or otherwise, between the Subscriber and the Customers;
(c)  any advice provided by the Subscriber to a Customer;
(d)  any Services provided by the Subscriber to a Customer;
(e)  the failure of a Customer to pay for Services provided as a result of a query via the Website;
(f)  the suitability of the Website for the Subscriber;
(g)  the accuracy, availability and content of the Website (including, but not limited to, incorrect details of the Customers);
(h)  the operation, transmission, failure or delay in performance of the Website or the unauthorised access to, destruction, theft, alteration or loss of any material or content contained on the Website;
(i)  the content, material, representations or warranties of any sites or servers maintained by organisations through links on the Website;
(j)  the use, misuse, storage or dissemination of any information collected by the Provider.

8. TERMINATION

8.1  The Provider may terminate this Agreement, at any time, by providing the Subscriber with written notice where:
(a)  the Subscriber has failed to pay any moneys due and owing under this Agreement;
(b)  the Subscriber has breached a warranty contained in clause 6 of this Agreement and such breach is incapable of being remedied; or
(c)  the Provider considers, in its absolute discretion, that the Subscriber is not suitable for inclusion in the Website.
8.2  The Subscriber may terminate this Agreement by providing the Provider with not less than seven (7) days written notice where the Provider has breached a term of this Agreement and such breach has not been remedied by the Provider within fourteen (14) days of the Subscriber’s written demand. 

8.3  This Agreement may otherwise be terminated where it has been agreed, in writing, by the Parties.
8.4  In the event this Agreement is terminated in accordance with either clause 8.1, 8.2 and 8.3 the Subscriber will forfeit any moneys paid to the Provider, including but not limited to, the Subscription Fee and the Renewal Fee.

9. GST
9.1 Where GST becomes payable on the supply of any goods or services ("supply") under or in connection with this Agreement then the Subscriber is required to pay the GST in respect of that supply to the Provider in addition to the Subscription Fee and the Renewal Fee and any other amounts payable under this Agreement.

10. GENERAL PROVISIONS


10.1 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland and all appellate Courts.
10.2 Severability
If any term of this Agreement is legally unenforceable or made inapplicable, it shall be severed or read down, but so as to maintain (as far as possible) all other terms of this Agreement (unless to do so would change the underlying principal commercial purposes of this Agreement).
10.3 Notices
(a) Method of Giving Notice
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person, transmitted by facsimile or mailed by post to the address stated in this Agreement or as varied by written notice.
(b) Deemed receipt - facsimile
A notice sent by facsimile (provided a status report is received by the sender which shows the notice has been transmitted) shall be deemed served immediately upon completion of sending if such completion is within business hours in the place where the addressee’s facsimile machine is located, but if not, then at 9.00 am next occurring during business hours at such place.
(c) Deemed receipt - mail
A notice sent by mail shall be deemed served at 9.00 a.m. on the second business day after (and exclusive of) the day of posting.
(d) Definitions
For the purpose of this clause >business hours’ means 9.00 a.m. to 5.00 p.m. on a business day and >business day’ means a day on which the major trading banks are open for business at the place where the addressee’s address for service is located.

10.4 Entire Agreement

Subject to anything to the contrary in this Agreement, this Agreement contains all the contractual arrangements of the parties with respect to the transactions to which it relates. It supersedes all earlier conduct by the parties with respect to those transactions.

10.5 Confidentiality

This Agreement and all matters and things connected with and related to this Agreement and its performance are confidential and no party shall disclose them to any other person without the prior written consent of the other party except where such disclosure is:
(a)  to its legal advisers, financial advisers or bankers (and then only if the recipient agrees prior to receipt to keep the information confidential;
(b)  required by any applicable law.

10.6 Variation

This Agreement shall not be modified, amended or supplemented except by an instrument in writing duly executed by the parties.

10.7 Merger

Notwithstanding termination or expiry of this Agreement, any clause which is capable of taking effect after termination shall remain in full force and effect.