Service Agreement

ELEGANT MEDIA CLIENT ENGAGEMENT AGREEMENT

This Service Agreement (hereinafter referred to as the “Agreement”) is made between:

BRIGHTEST AUSTRALIA PTY. LTD. (A.C.N. 140 926 101) of 13/195 Wellington Road, Clayton Victoria 3168, trading as Elegant Media Australia (“EM“)

AND

The recipient of the services (“Client”).

WHEREAS:

EM provides services in website design, development, marketing, and technical solutions. EM specialises in AI, IT consulting, design, and related services, offering comprehensive software design and information technology solutions across various platforms, including Android and iPhone applications, internet-based platforms, websites, and other emerging technologies.
The Client has requested that EM complete certain work for the Client in return for payment.
EM has agreed to complete the work for the Client subject to the following terms and conditions.

THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS AND INTERPRETATION

The following definitions apply to this Agreement:

Background IP means Intellectual Property owned by or licensed to EM which is pre-existing or came into existence other than as a result of the Work. Background IP includes Provider Tools.

Brief means the directions given by the Client to EM as to what Work they require EM to complete including any details or specifications provided.

Business Day means a day which does not fall on a weekend or public holiday in the place where the act is to be performed or notice is to be received respectively.

Client Materials means any and all content, information and materials whatsoever requested by EM of the Client and provided by the Client (including but not limited to digital content, documents, artwork, text, graphics, photography, databases, data, software programs and other materials).

Commencement Date is the date the Client makes the first initial payment.

Feasibility Projects means EM will be conducting feasibility studies to evaluate system requirements, functional needs, or innovative ideas with technical prerequisites. These studies involve assessing existing technologies to meet project requirements or exploring the potential development of new technology. Following completion, EM provides a detailed feasibility research report.

The Flexi Plan Services means services customised to meet the specific needs of the Client. These plans operate on a subscription basis, focusing on continuous app enhancement and maintenance, backed by warranty and support services for completed projects.

Fixed Price Application Prototype Services means prices offered by EM, tailored for entrepreneurs and business owners for a fixed agreed price and for an approximate estimated time period (excluding variations and out-of-scope works). Examples: Fixed Price Proposals, Design My App (and similar prototype services), Feasibility Study Projects.

Final Created Work means the fully finished and endorsed versions of software, websites, applications, or other deliverables produced by EM for the Client. It excludes individual components such as soundtracks, design concepts, software code, source code, graphics, fonts, artwork, logos, slogans, content, and applications that constitute the Final Created Work. These components may have been pre-existing or developed by the Client during the project, but are not considered part of the Final Created Work.

Force Majeure means an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:

riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition, or compulsory acquisition n by any governmental or competent authority;
ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
pressure waves caused by aircraft or other aerial devices travelling at sonic supersonic speeds; or
earthquakes, flood, fire, or other physical natural disaster;
cyber-attacks, hacking, or other malicious actions which affect the technological infrastructure necessary for performance;
strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour employed by the affected party, its subcontractors, or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this agreement; and
a global pandemic, including but not limited to epidemics, pandemics, or other public health emergencies officially declared by relevant governmental authorities.

GST means any tax that is payable under the GST Law and imposed as goods and Services tax. “GST” and “GST Law” are defined in a New Tax System (Goods and Services Tax) Act 1999.

Insolvency Event, in relation to a party, means any of the following events:

the party ceases to (or is unable to) pay its creditors (or any of them) in the ordinary course of business, or announces its intention to do so;
a receiver, receiver and manager, administrator, liquidator, or similar officer is appointed to that party or any of its assets;
such party enters into, or resolves to enter into a scheme or arrangement, compromise, or composition with any class of creditors;
a resolution is passed or an application to a court is taken for the winding up, dissolution, official management, or administration of that party; or
anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.

Intellectual Property Rights means any all now known or hereafter known tangible and intangible

rights associated with works of authorship throughout the universe, including but not limited to copyrights and moral rights,
trademark and similar rights,
trade secret rights,
patents, designs, algorithms and other industrial property rights, all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) whether arising by operation of law, contract, license, or otherwise, and
all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing)

Marketing Plans means plans offered by EM involve comprehensive marketing services, delivering tailored campaigns specifically for the Client’s mobile app. These plans encompass a variety of flexible options customised to individual needs, with a specialisation in widely utilised App and Web Marketing services.

Party means a party to this Agreement.

Parties means the parties to this Agreement.

Payment means the fees payable to EM by the Client.

PPSA means the Personal Property Securities Act, 2009.

PPSR means the Personal Property Securities Register established under the PPSA.

Proposal means the document provided to the client by EM detailing the proposed Scope of Works and Quotation.

Revision means the first draft or version delivered of the Work (for instance, the first version of an iPhone application).

Provider Tools means any tools, both in object code and source code form, which EM has already developed, or which EM independently develops or licenses from a Third Party, excluding any tools which EM creates pursuant to this Agreement. For example, Provider Tools may encompass, but are not limited to, Integrated Development Environments (IDEs), software and design libraries, Software Development Kits (SDKs), templates, and other digital tools and frameworks.

Security Interest means “security interest” as that term is defined in the PPSA.

Scope of Works means the proposed Works detailed in the Proposal or as otherwise agreed in writing by EM and the Client.

Technical Support means the technical support EM will provide at the request of the Client, such support to include fixing ‘bugs’, curing defects or errors and restoring ‘system crashes’ within the Work.

Terms means the terms and conditions in this Agreement.

Warranty & Maintenance Plans means prioritising the continuous reliability and support of completed projects, particularly focusing on securing the dependability of all developed applications.

Quotation means a written document described as such in relation to the Work and being any such document provided by EM to the Client which forms part of this Agreement.

Work means the particular goods and/or services to be provided by EM to the Client.

2. ENGAGEMENT

The Client is deemed to have accepted these Terms and Conditions in any of the following ways:
1. by executing these Terms and Conditions;
2. by providing a written acceptance to these Terms and Conditions by email or by any other form of written communication;
3. by placing an order with EM or instructing EM to provide the Work after:
  1. these Terms and Conditions are received by the Client; or
  2. these Terms and Conditions are brought to the notice of the Client.

These Terms and Conditions are to be read in conjunction with any other contractual documentation produced by EM in relation to the Services to be performed by EM including the Proposal and the sign-off documents and where there is a conflict between these Terms and Conditions and the other contractual documentation created by EM the documentation will prevail in the following priority to the extent of such inconsistency.
The Client engages EM to provide certain Work as described in this Agreement and EM accepts such engagement upon the terms and conditions of this Agreement.
The relationship between the parties and the provision of Work by EM under this Agreement is on a non-exclusive basis.

3. THE WORK

EM will supply the Work to the Client in accordance with the terms of this Agreement and including in accordance with the Brief provided by the Client to EM (if any) and in accordance with the Proposal (if any) provided by EM to the client, provided however that if there is any inconsistency between the Brief and the Proposal then the Proposal shall prevail to the extent of such inconsistency and further if there is any inconsistency between the terms of this Agreement and the terms of the Brief and/or the Proposal, then the terms of this Agreement shall prevail to the extent of any such inconsistency.
Unless an item of work and/or good and/or service has been explicitly listed in under the heading of Work as described in the Proposal, it is not included as part of the scope of the Work.

4. SERVICES PROVIDED BY ELEGANT MEDIA

EM provides a variety of Fixed Price/Scope Projects services which are tailored to the Client’s specific application and software development requirements. Examples include:
1. Fixed Price Projects; or
2. Design My App (and similar prototype services); or
3. Feasibility Study Projects.

4.2 FIXED PRICE PROJECTS

DEFINITIONS

Fixed Price Application Prototype Services are offered by EM, tailored for entrepreneurs and business owners for a fixed agreed price and for an approximate estimated time period (excluding variations and out-of-scope works). Examples: Fixed Price Proposals, Design My App (and similar prototype services), Feasibility Study Projects.
Feasibility Projects entail EM conducting feasibility studies to evaluate system requirements, functional needs, or innovative ideas with technical prerequisites. These studies involve assessing existing technologies to meet project requirements or exploring the potential development of new technology. Following completion, EM provides a detailed feasibility research report.
For all Fixed price projects EM provides the Client with:
1. project consultation and support to help the Client understand their project’s specific requirements;
2. app wireframes, helping the Client to build the project’s low-fidelity wireframes ensuring the project meets the Client’s goals;
3. consultation with EM’s app designers to create concepts that suit the brand, style, and vision of the Client;
4. fixed number of designs for the Client’s project;
5. the provision of a custom design app icon designed to represent the Client’s app on the app store; and
6. the delivery of a design prototype demonstrating the practical functionality of the app idea for the Client’s review and understanding.

5. PAYMENT TERMS

The Client will pay EM the amount(s) specified in the Proposal for the Work (the “Payment”).
The Payment shall, unless otherwise negotiated and agreed by the parties in writing, be made in accordance with the applicable payment terms as per the Proposal.
Upon purchasing fixed price engagement, all parties will agree upon the payment terms specified in the proposal. The Client agrees to remit payment to EM according to the terms outlined and agreed in the Proposal.
Upon issuance of a tax invoice by EM, the Client is obligated to settle the full amount on or before the due date specified on the issued tax invoice.
All payments related to Work are to be paid by the Client for stages of the project as initially agreed by both parties. By making a payment, the Client agrees EM has successfully completed the stage of the project for which the payment is made, and EM shall not be obliged to return or refund to the Client any monies previously paid by the Client to EM for or towards this stage or a previous stage.

6. WORK STAGES

Subject to these Terms, EM will provide the Work to the Client according to agreed estimated time frame(s) as detailed in accordance with the Proposal. the Delivery Dates stated in Item 4 of the Schedule of the Proposal.
EM shall use all reasonable endeavours to adhere to the agreed estimated time frame(s) as detailed in the Proposal Delivery Date(s). However, if for any reason the Work cannot be provided within the estimated time frame(s)on the agreed date(s), subject to any law to the contrary:
1. EM shall not be liable to the Client or any other person in any circumstance (whatever the cause) where the Client or any other person may have a cause of action or a right to claim or right to recover from EM in respect of any loss, consequential loss or damage of any kind whatsoever caused directly or indirectly by EM’s failure to supply the Work within the estimated time frame by the agreed date(s);
2. subject to these Terms, the Client will not be entitled to cancel this Agreement as a consequence of EM’s failure to supply the Work by within the estimated time frame(s) the agreed date(s);
3. EM will contact the Client in good faith and notify them of the delay and the parties shall agree to an alternative date/s as is necessary; and.
4. the Client acknowledges and agrees that circumstances may arise which result in a delay in the Delivery of the Final Created Works of up to two (2) years later than the estimated timeframe as detailed in the Proposal.
If EM is unable to adhere to any estimated time frame(s) as detailed in the Proposal as a direct or indirect result of an act or omission of the Client, or as a direct or indirect result of a breach by the Client of this Agreement, EM may:
1. make an additional charge for time, overtime, travel, materials, extra computer time or other expense; and
2. where such act of omission or breach causes delay exceeding three hundred and sixty-five (365) days beyond the date of the estimated time frame(s) as detailed in the Proposal, terminate this Agreement, whereupon it may pursue such remedies as may be available under this Agreement or at law. In such instance, without limiting the rights and remedies of EM under this Agreement or at law and subject to any law to the contrary, EM shall not be obliged to return or refund to the Client any monies previously paid by the Client to EM for or towards the Work.

7. REVISION AND CLIENT FEEDBACK

If there is a Revision date specified in the Proposal, then a Revision of the Work will be provided to the Client (subject to these Terms) by the delivery date so specified.
Upon receipt of the Revision the Client is to review and test the Work as is required by EM and provide feedback to EM, such feedback to be provided within the time period specified by EM, failing which, within seven (7) days of receipt of the Revision (the “Client Feedback Period”).
The Client shall be deemed to have accepted the Revision and provided approval for the Work to be completed if the Client Feedback Period has elapsed and the Client has not in such period notified EM in writing of any required changes, feedback and/or deficiencies detected in the Revision.
Notwithstanding clause 7.3 if EM in its sole discretion grants an extension of the Client Feedback Period to allow for the Client to notify of any changes, feedback and/or deficiencies detected in the Revision (the “Late Feedback”), then the estimated time frame for provision by EM of the Work shall be extended by the time period from the receipt of the Revision by the Client to the time of the late feedback being provided by the Client to EM.
The amount of Revisions provided by EM is limited to the amount specified in the Proposal. The Client must pay for any additional Revisions.

8. MONTHLY RETAINER PROJECTS

EM provides a variety of Monthly Subscription Plan services which are tailored to the Client’s specific application and software development requirements. Examples: Flexi Plans, Maintenance Plans, Marketing Plans.

9. MONTHLY REPAYMENT PROJECTS PAYMENT TERMS

The Client will pay EM the amount(s) specified in the Proposal for the Work (the “Payment”).
The Payment shall, unless otherwise negotiated and agreed by the parties in writing, be made in accordance with the applicable payment terms as per the Proposal.
Upon purchasing subscription services like the Flexi, Marketing, or Warranty plans, the Client consents to an initial and ongoing monthly subscription fee to be paid in advance as stipulated in the Proposal. The Client accepts responsibility for all recurring charges until the subscription is terminated.
To pause/stop a subscription, the client is required to provide a minimum of seven (7) days prior notice to EM to do so.

10. SERVICES BASED ON TIME & MATERIALS (T&M)

EM provides services billed based on the actual time spent on the project. The Client agrees to pay for hourly consultation services at the agreed-upon rate, and will purchase hourly packages (e.g., 20 hours upfront), or opt for daily/monthly rates as specified in the Proposal.
The Client will reimburse EM for any documented third-party project-related expenses. Payment is due upon receipt of the invoice, and late payments may incur interest charges.

11. T&M PAYMENT TERMS

The Client will pay EM the amount(s) specified in the Proposal for the Work (the “Payment”)
The Payment shall, unless otherwise negotiated and agreed by the parties in writing, be made in accordance with the applicable payment terms as per the Proposal.
The Client shall pay EM at an agreed rate per hour/day/month.
EM shall issue invoices to the Client on a [weekly/monthly] basis for services rendered under the Pay Per Hour/Day/Month structure and Hourly Services. Settlement of the invoice is due within the number of days stated on the invoice.

12. SERVICES BASED ON LICENCING FEES

EM offers comprehensive licensing services for our proprietary software, premium access, professional services, and intellectual property, including patents and trademarks. These licenses enable clients to leverage our advanced technology and expertise while ensuring flexibility and scalability in their operations (e.g., Hosting, Third-party software licencing, Time).

13. SERVICES BASED ON LICENCING FEES PAYMENT TERMS

The Client will pay EM the amount(s) specified in the Proposal for the Work (the “Payment”).
The Payment shall, unless otherwise negotiated and agreed by the parties in writing, be made in accordance with the applicable payment terms as per the Proposal.
Upon setting up above services, the Client consents to an initial and ongoing subscription fee to be paid in advance as agreed. The Client accepts responsibility for all recurring charges until the subscription is terminated.

14. HYBRID SERVICES

EM offers Services with combined payment options. For instance, Marketing Plans have a Fixed Setup fee and deliverables, then a monthly retainer plus expenses for ads.

15. HYBRID SERVICES PAYMENT TERMS

The Client will pay EM the amount(s) specified in the Proposal for the Work (the “Payment”).
The Payment shall, unless otherwise negotiated and agreed by the parties in writing, be made in accordance with the applicable payment terms as per the Proposal.
Upon setting up above services, EM shall issue invoices to the Client for agreed price with due stated as on the invoice. With settled of the fixed payments as stated on the invoices. The Client consents to an ongoing subscription fee to be paid in advance as agreed. The Client accepts responsibility for all recurring charges until the subscription is terminated.

16. GENERAL TERMS – TERMS RELEVANT FOR ALL PROJECTS

17. GENERAL PAYMENT TERMS

The Client shall be responsible for all third party and/or out-of-pocket expenses which have been approved in advance by the Client and which are incurred by EM in the undertaking and/or completion of the Work. EM reserves its right to not incur the third party and/ or out of pocket expense prior to the client making an upfront payment on account of the third party and/ or out of pocket expense.
If in the course of or associated with undertaking the Work, additional goods and/or services are required to be provided by EM to the Client , which are out of scope of the Service Proposal, (that are not specified in the applicable Quotation or this Agreement, as the case may be)(and including changes to the scope and nature of the Works as is requested by the Client, including following a revision)(“the Additional Work”) and the Client has approved EM undertaking the Additional Work, EM is to be paid for such Additional Work at an hourly rate and as agreed between the parties in writing. The Client also acknowledges and agrees that if Additional Work is required, EM may require an extension of its initial estimated timeline to deliver all goods and services listed in its original Proposal. This may mean that EM is unable to adhere to any Delivery Date(s).
The Client must pay to EM interest at the percentage of ten per cent (10%) per annum on all overdue sums owing under this Agreement. If the issued invoices are not settled after 28 days of the initial invoice for the Work, the Client’s account will be suspended. At this stage, EM reserves the right re-sell this project and assets to another party if needed to re-coup the Project costs. From this period, all due invoices will be forwarded to debt-collectors.
If the Client defaults in making payment by a due date or is otherwise in breach of these terms and conditions (including any breach of warranty), EM may suspend supply of goods and/or services to the Client until the outstanding payment and any interest thereon has been paid and/or until the default has been remedied.
The Client indemnifies and agrees to pay to EM any costs, expenses, liability, loss or damage incurred or sustained by EM (and/or its affiliates, officers, employees, contractors, agents) (including without limitation, any debt collection and legal costs incurred on a full indemnity basis) as a result of the Client’s failure to comply with the Terms of this Agreement and/or the terms of any Quotation and/or other written agreement entered between the parties. The obligations of the Client under this clause 17.5 are continuing obligations and will survive the termination of this Agreement. To the extent permitted by law, The Client acknowledges and agrees that EM’s liability for any damages or loss incurred or sustained by the Client in connection with EM proceeding with the Work is limited to the total amount of the total fees charged by EM for the Works.
The Client must pay the final payment for milestones prior to final submission or deployment for fixed priced projects. However, if for some reason, If the Client has taken possession in whole or in part of the Works and/or of the Final Created Work (the “Assets”) before all payments have been made to EM under this Agreement, the Client grants to EM a Security Interest in the Assets as security for payment of any amount payable by the Client to EM under this Agreement and EM may register a financing statement in respect of its Security Interest pursuant to this clause on the PPSR.
In the event that any whole or part of the Assets are incomplete or have not been provided to the Client, the Client shall request the missing Assets from EM within 60 days of either the completion or suspension of the Agreement.
An amount payable by the Client to EM under this Agreement, in respect of the supply by EM which is taxable supply under the GST Law, unless specifically expressed to the contrary, represents the GST exclusive value of the supply and the Client as the recipient of the supply must, in addition to the sums specified in the Agreement as payable to EM, pay to EM the GST payable in respect of the supply. In this clause the following words have the following meaning:
1. “GST” means any consumption tax imposed by government which operates during the term of the Agreement and includes (without limitation) a goods and services tax, a broad-based consumption or indirect tax and value added tax; and
2. “GST Law” includes any law introducing, related to or in furtherance of, a GST, including A New Tax System (Goods and Services Tax) Act 1999 (as amended).
The Client agrees to pay to EM a monthly upfront subscription-based fee for any App, Web and Software Development Services and any App and Web Marketing Services. The Client acknowledges and agrees that:
1. any such payment which the Client makes to EM (whether by transfer to EM’s bank account, direct debit through a secure payment gateway or any other payment channel including credit card payment) is non-refundable subject to any law to the contrary;
2. by making any such payment to EM (whether by transfer to EM’s bank account, direct debit through a secure payment gateway or any other payment channel including credit card payment) the Client will be deemed to have accepted all Services (including, without limitation, the quality of all Services) previously provided by EM to the Client unless the Client has given EM written notice to the contrary prior to making the payment;
EM reserves the right to modify, change or upgrade any subscription-based Service with prior notice to the Client and the Client will be deemed to have agreed to any such modification, change or upgrade unless the Client gives EM written notice terminating the Service within five (5) Business Days after the later of the posting of the modification, change or upgrade on EM’s website or the Client being notified or otherwise becoming aware of the modification, change or upgrade;
EM reserves the right to change the price of any subscription-based Service with one-month prior notice and the Client will be deemed to have agreed to any such price change unless the Client gives EM written notice terminating the Service within five (5) Business Days after the later of the posting of the price change on EM’s website or the Client being notified or otherwise becoming aware of the price change.
EM reserves the right to at any time cancel any subscription-based Service with one-month prior notice to the Client.
EM reserves the right to pause or cancel any subscription-based Service if the Client has not paid fees related to a subscription period.
If a Client wishes to pause a subscription-based service, they must provide EM with at least seven (7) days’ notice of their intention to pause the subscription-based service.
If a Client pauses a subscription-based service for a period of more than three (3) months, the allocated resources assigned to the client’s subscription-based service will be cancelled. If the client wishes to restart their subscription-based service after the said three (3)month period, they must give EM at least seven (7) days’ notice.
Upon receipt of the Payment by the Client for any services offered by EM, it is explicitly acknowledged and agreed that such payment constitutes full satisfaction and acknowledgment of the client’s contentment. Once payment is made, refunds will not be provided for a subsequent change of mind or discretionary reasons. The Client acknowledges that the non-refundable service fee policy is instituted due to the nature of EM’s services which do not involve the sale of services eligible for return on for a refund.

18. INFORMATION HELD BY THE CLIENT

The parties acknowledge that in doing the Work for the Client it may be necessary for EM to access the Client’s databases and internal systems (“Client Access”) for the purpose of accessing data, systems, and information to enable the Work to be completed and/or to operate, and:
1. The Client agrees to give EM access to its databases and internal systems solely for the purpose of enabling the Work to be completed and/or to operate; and
2. EM warrants it will not use the information or data accessed in any way other than to enable the Work to be completed and/or to operate, and that it will continue to maintain the privacy and confidentiality of Client Materials.

EM agrees that to undertake Client Access in a competent and professional manner, observing industry standards and quality work practices.
The Client agrees to indemnify and hold harmless EM, its affiliates, officers, employees, contractors, agents, and other partners and its and their respective employees from and against all claims, liabilities, actions, losses, costs, and expenses arising from or in connection with Client Access for the purposes of this Agreement.

19. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

Subject always to Client’s ownership of its Pre-Existing Intellectual Property, EM (or its licensors) will retain all Intellectual Property Rights in and to the Deliverables, and in any other systems, databases, materials, screen, report formats, programs and documentation devised, designed, created, or prepared by or on behalf of Supplier for the purpose of or in connection with its provision of the Supplies or this Agreement generally.
On full payment of all applicable fees, expenses and monies owing to it in relation to any Work provided under this Agreement, EM will be deemed to have granted to the Client a non-exclusive, royalty free, non-transferable, worldwide, perpetual, and irrevocable (subject to the terms of the termination at clause 22 below) right and licence to use all Intellectual Property in connection to the Works and Deliverables for its internal business purposes.
There is no assignment to the Client of Intellectual Property Rights in any Background IP (including any Background IP as contained in the Final Created Work) and EM retains all ownership and rights in relation to the Background IP. EM grants to the Client a non-exclusive, royalty free licence to use the Background IP to the extent necessary to enable the Client to have the Intellectual Property Rights in the Final Created Work.
For the avoidance of doubt, and without limiting the foregoing, while any fees, expenses and monies are owing to EM by the Client under this Agreement, EM retains ownership of the Final Created Work, until resolution in respect of the amount payable is achieved.
Provided that the Client has complied with clause 9 hereof and Intellectual Property Rights in the Final Created Work has vested in the Client, in such event the Client grants EM a perpetual, royalty free, irrevocable licence throughout the world to use the Final Created Work:
1. to the extent necessary to perform its obligations under this Agreement; and
2. to allow EM to advertise and promote EM’s goods and/or services (including following termination of this Agreement).
The Client grants EM permission for EM to refer to Work done for the Client in EM’s promotional and marketing materials for EM’s business, unless expressly stated otherwise. The Client also grants EM permission to refer to and use and reproduce the name and logo of the Client for the purposes of promoting the business of EM.
Unless expressly directed by EM otherwise, the Client is responsible for:
1. obtaining all necessary permissions, authorisations, licences, and consents in relation to the use and incorporation of any and all Intellectual Property Rights owned or licensed to third parties in the Work; and
2. payment of all royalties or licence fees associated with the use of a third party’s Intellectual Property Rights in connection with the Work.
The Client agrees to indemnify and hold harmless EM, its affiliates, officers, employees, contractors, agents and other partners and its and their respective employees from and against all liability under any final judgment in proceedings brought by a third party, and any claims, liabilities, actions, losses, costs and expenses whatsoever arising from or in connection with any alleged breach of a third party’s Intellectual Property Rights except to the extent caused or contributed to by the default of EM or its affiliates, officers, employees, contractors, agents or other partners or its or their respective employees.
The Client agrees to indemnify and hold harmless EM, its affiliates, officers, employees, contractors, agents, and other partners and its and their respective employees from and against all liability from any claims, losses, damages, liabilities, costs, or expenses incurred or suffered by the customer, directly or indirectly, as a result of any impact caused by third parties.

20. OWNERSHIP OF ANDROID OR IPHONE APPLICATIONS

Where the Work provided is an Android or iPhone application (an “Android or iPhone App”), the Client agrees and acknowledges that it is the Client’s responsibility to arrange for the appropriate license for the application to be sought from Android and/or Apple (as the case may be).
Where the Client requests EM and EM agrees to be responsible for providing the Android or iPhone App to the Client utilising EM’s Android and/or Apple licence, then the Client agrees and acknowledges that EM retains ownership of the Final Created Work and the Intellectual Property Rights in the Final Created Work and that EM then provides the Client with a licence throughout the world to use the Final Created Work (which licence is subject to the Client complying with all and any reasonable directions given by EM to the Client concerning the use of the Final Created Work, including but not limited to the Client complying with the terms of EM’s Android and/or Apple licence).
The provisions of this clause 20 overrides any inconsistent provisions in clause 19 hereof.

21. CONFIDENTIALITY

EM agrees and acknowledges that all information received from the Client regarding the Client’s business (“Confidential Information”) must be kept confidential for so long as the Confidential Information remains confidential and will not disclose it to a third party except as permitted by this Agreement. Confidential Information includes any passwords used in connection with a website or software application, server logs, Client Materials, content that the Client designates as confidential, and the Work itself until such time as the Client decides to make the Work publicly available.
EM may disclose Confidential Information:
1. to the extent disclosure is required to undertake the Work;
2. with the prior written consent of the Client;
3. as may be required by law; or
4. to the extent that the Confidential Information is in the public domain otherwise than through a breach by EM of its obligation of confidence.

22. TERMINATION

Either party may terminate this Agreement:
1. in the event of a breach of this Agreement by the other party, after the defaulting party has been given thirty (30) days written notice of such breach and has failed to rectify the breach; or
2. immediately by written notice to the other party if the other party suffers an Insolvency Event; or
3. if either party cannot be reached by other party via phone or email for thirty (30) days; or
4. if the parties have not agreed to recommence the Work after it has been suspended for six (3) months or longer.
Upon termination of this Agreement:
1. EM’s obligation to provide Work immediately ceases;
2. EM may relinquish any assets or data relating to the project to the client pursuant to the terms of the initial contract;
3. EM reserves the right to remove all back up filles associated with a project along with any data which is not essential for EM’s accounting purposes twelve (12) months following the conclusion of the Agreement. EM reserves the right to remove all data immediately upon termination with regard to hosting contracts;
4. EM may retain any monies received from the Client for any Work performed prior to the date of termination; and
5. if EM has terminated this Agreement all monies payable to it become immediately due and payable including any expenses for goods and/or services to be provided by third parties which have been contracted prior to the date of termination.
Either party can terminate App, Web and Software Development, Maintenance or Marketing subscription at any time without providing a reason after completion of any minimum contract term agreed by both parties.

23. DEVICE AND SOFTWARE PLATFORM SUPPORT FOR ANDROID OR IPHONE APPLICATIONS

EM agrees that the Work provided as an Android or iPhone App will function on the current and immediately preceding version of the Android and iOS software platforms.
If the Work completed is an iPhone App, EM agrees the project to be working on the most recent devices and one (1) previous generation of the same device class. If the Work is completed as an Android app, EM agrees the project to be working on the most commonly used three (3) Android device makes and models, and one (1) previous generation of the same device type.

24. TECHNICAL SUPPORT

EM may agree to provide Technical Support for the Work supplied to the Client at a cost within a specified period after delivery of the Work to the Client, where the Client notifies EM in writing or by phone of the need for Technical Support (the “Support Period”).
Technical Support following the conclusion of the Complimentary Support Period will be charged at an hourly rate or as otherwise agreed between the parties, unless such Technical Support is required because of defect or error in the Work as accepted by EM, in which case there will be no charge to the Client.
All support is void if a third party modifies any software or website code or systems.
This complimentary support/warranty period doesn’t cover bugs and/or issues caused as a result of Third-Party Software Updates; including but not limited to Apple and Google.

25. DEFECTS

Notifications from the Client as to any defects or errors in the Work must be in writing and provided to EM as soon as the Client becomes aware of the defect or error. Where EM requests, the Client must provide a documented example of the defect or error in question.
Failure to notify EM of an alleged defect or error within two (2) months of delivery of the Work will result in EM not being responsible for the defect or error.
EM has the right to correct the alleged defect or error within fourteen (14) days or notify the Client with a new estimated date of correcting the error where it might require more than fourteen (14) days and will do so at no charge to the Client.

26. MODIFICATIONS

The Client shall not modify the whole or any part of the Work supplied to the Client (including but not limited to the Final Created Work) or combine or incorporate any part of the Work supplied to the Client (including but not limited to the Final Created Work) in any other application program software or system without the prior consent in writing of EM.
The Client (or any person as directed or instructed by the Client) shall not reverse assemble or reverse compile Work supplied to the Client (including but not limited to the Final Created Work) or any part thereof.

27. WARRANTY

Nothing in these Terms limits, excludes or modifies or purports to limit, exclude, or modify the rights provided under the Competition and Consumer Act 2010 (Cth) (as amended), or similar consumer protection law, where it would be illegal to do so.
EM warrants to the Client that the Work provided will meet the specifications required of such Work that have been or are agreed between the parties (“Express Warranty”). The benefit given to you under the Express Warranty is in addition to and is not intended to replace or detract from any other rights or remedies you may have with respect to the Work under the Australian Consumer Law or any other applicable laws.
In addition to any written express warranty given by EM in relation to any Work completed by EM, EM acknowledges that there are certain laws which imply terms, conditions, and warranties into contracts for provision of goods and/or services (“Prescribed Terms”) and which laws prohibit exclusions, restriction or modification of such Prescribed Terms or the limitation of the liability of the supplier of goods and/or services for a breach thereof. EM does not exclude the Prescribed Terms, however, to the extent permissible by law, the liability of EM is limited, where expressly permitted by statute, to at EM’s discretion, either the supply of the Work again, or payment of having the cost of the Work supplied again.
To the extent permissible by law, EM excludes all other conditions and warranties implied by custom, the general law or statute. To the extent permissible by law:
1. EM’s total aggregate liability to the Client under this Agreement will not exceed the total of the payments received by EM from the Client under this Agreement; and
2. EM shall not be liable to the Client or any other person in any circumstance (whatever the cause) where the Client or any other person may have a cause of action or a right to claim or right to recover from EM in respect of any indirect, special, punitive, incidental or consequential loss or damage of any kind whatsoever (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment or loss of employee time) and whether caused directly or indirectly by any act, omission, default or negligence on the part of EM or any of its servants, contractors or agents in connection with or incidental to the provision of any Work by EM.
Refunds will not be provided for change of mind or discretionary reasons. Once the purchase is completed, it is considered final. EM encourages Client’s to carefully consider their purchases before making a transaction.
Any and all claims relating to the Work made under this clause must be in writing and addressed to the Company Director and sent by mail to EM at the address of EM indicated herein. Any cost or expense associated with bringing a claim under this clause will be borne by the party who incurs the cost or expense. The Express Warranty is given by EM of Office 13, Building 3, 195 Wellington Road, Clayton Victoria 3168 and 1300 470 580.

28. ASSIGNMENT

EM shall be entitled to at any time assign or otherwise transfer its rights and obligations under this Agreement to a third party.

29. FORCE MAJEURE

Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
Where there is an event of Force Majeure, the party prevented from or delayed in performing its obligations under this Agreement must immediately notify the other party, giving full particulars of the event of Force Majeure and the reasons for the event of Force Majeure preventing that party from, or delaying that party in, performing its obligations under this Agreement and that party must use its reasonable efforts to mitigate the effect of the event of Force Majeure upon its or their performance of the Agreement and to fulfil its or their obligations under the Agreement.
Upon completion of the event of Force Majeure, the party affected must as soon as reasonably practicable, recommence the performance of its obligations under this Agreement.
An event of Force Majeure does not relieve a party from liability for an obligation that arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner that matured prior to the occurrence of that event.
The Client has no entitlement and EM has no liability for any delay costs losses, expenses and/or damages, or any other damage whatsoever in any way incurred by the Client due to an event of Force Majeure.
If a delay or failure by a party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

30. NOTICES

Any notice or other communication required or authorised to be given or served upon a party pursuant to this Agreement must be:
- in writing; and
- addressed to the party at the address listed in the party details or otherwise notified to a party in writing.
Any notice or other communication under this Agreement will be deemed to have been received when:
- if delivered by hand, at the time of delivery;
- if posted, two Business Days after posting; and
- if delivered by facsimile, when transmitted upon production of a transmission report indicating the communication was received in its entirety at the recipient’s number, but if such delivery or receipt is later than 4.00 pm (local time) or on a day on which business is not generally carried on in the place to which the communication is sent, at 9.00am on the next business day in that place.

31. SEVERABILITY

If any part of this Agreement is found to be void, voidable, illegal, or unenforceable then that part shall be severable from and shall not affect or derogate from the enforceability or validity of the rest of the Agreement.

32. CHANGES TO TERMS

The Client can review the most current version of these Terms at any time on EM’s website at https://www.elegantmedia.com.au/service-agreement/ EM reserves the right, at its sole discretion, to at any time update, change or replace any part of these Terms by posting updates and changes on its website. The Client acknowledges and agrees that it is the Client’s responsibility to check EM’s website periodically for updates and changes to these Terms. The Client’s continued use of any Service following the posting on EM’s website of any updates or changes to these Terms will be deemed to constitute acceptance by the Client of those updates or changes to these Terms unless the Client gives EM written notice terminating this Agreement within five (5) Business Days after the later of the posting of those updates or changes to these Terms on EM’s website or the Client being notified or otherwise becoming aware of those updates or changes to these Terms.

33. JURISDICTION AND PROPER LAW

This Agreement is governed by and construed in accordance with the laws of Victoria Each of the parties submit to the jurisdiction of the courts of Victoria.