Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
Agreement has the meaning in clause 2(a).
Agreement Details means the section of this Agreement headed ‘Agreement Details’.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
Confidential Information means all and any information of a confidential nature including financial, customer and employee information, supplier information, product specifications, processes, statements, formulae, trade secrets, drawings and data which is not in the public domain, other than by a breach of the confidentiality obligations under the Agreement, and which is not Contact Details.
Contract means a contract of service or contract for service between the Lead and the Developer in relation to the provision of Development Services.
Contact Details means the Personal Information of Lead that we provide to you.
Developer, you or your means the independent contractor or freelance software or application developer, whose details are specified in the Agreement Details, and includes your Representatives and Affiliates.
Development Services means application and software development services.
Engaged Lead means a Lead who enters into a Contract with the Developer.
Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events.
Intellectual Property Rights includes all industrial and intellectual property rights, and includes any patents, registered designs, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to circuit layouts, or other proprietary rights, and applications for, and rights to apply for, registration of any of the foregoing.
Leads means a person, organisation or entity that requires Development Services.
Lead Generation Services has the meaning in clause 4(a).
Lead Fee has the meaning in clause 6(a)(i).
Lead Frequency has the meaning in the Agreement Details.
Lead Pack has the meaning in the Agreement Details.
Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.
Pack Fees has the meaning in clause 6(a)(ii).
Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.
Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which either party carries on their business.
Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world.
Representative means, in respect of a party, any person acting for or on behalf of the party and includes any director, officer, or employee, of the party.
Site means the Webhype website located at https://webhype.com.au/ and social media linked pages or any other internet site notified by Webhype from time to time.
Subscription Term means the term of this Agreement, defined in clause 3.
Webhype, we, our or us means Webhype Pty Ltd (ACN 610 503 412) and where the context permits, includes our Representatives and Affiliates.
In this Agreement:
headings are for ease of reference only and do not affect interpretation;
no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
the word ‘including’ or similar, is not intended as a term of limitation;
all monetary amounts are expressed in Australian Dollars ($AUD) unless expressly stated otherwise; and
parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.
You acknowledge that you have read, understood and agreed to be bound by the terms of this Agreement.
Nothing in this Agreement limits Webhype’s right to sell and supply Lead Generation Services to any other persons or entity who requests Lead Generation Services from us, during the Subscription Term.
This Agreement commences on the earlier of the date both parties enter into this Agreement or we commence providing you with Lead Generation Services, and will continue until it is terminated by either of the parties in accordance with its terms (Subscription Term)
Webhype shall use reasonable endeavours to provide you with correct, current and complete Contact Details of Leads and Lead Information (Lead Generation Services).
By providing the Lead’s Contact Details and Lead Information to you, we warrant to you that the Lead has consented to the collection and use of its Personal Information for the purposes contemplated and implied by the Agreement.
In the event that Webhype fails to provide you with the Lead Generation Services in accordance with clause 41, we will use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 44.1.
We do not represent or guarantee that any Lead will convert to an Engaged Lead during the Subscription Term, and we do not guarantee that you will derive or earn a minimum amount of income, revenue or profit from an Engaged Lead.
You acknowledge that:
once we provide you with the Lead’s Contact Details and Lead Information, we have no further role in the recruitment process and it is your sole responsibility to contact the Lead; and
by providing you with the Lead’s Contact Details and Lead Information, we do not endorse, guarantee or warrant the creditworthiness, reliability, legitimacy, repute, or credibility of the Lead.
You must, and you must ensure Your Representatives will:
pay the Lead Fee and/or Pack Fees for Leads supplied to you in accordance with this Agreement;
act in a way which will incur any liabilities on behalf of Webhype nor enter into any contract or commitment for or, on behalf of Webhype;
provide us with all necessary co-operation and information to facilitate and provide the Leads to you, including:
complete and up-to-date Personal Information; and
information relating to your expertise, skills and training in the provision of Development Services;
ensure that all information you provide to us is true, accurate and not misleading;
only accept Leads for Development Services that you have the necessary competencies and qualifications to perform; and
carry out all of your responsibilities set out in this Agreement in a timely and efficient manner.
You are warrant that:
you have all the required qualifications, expertise, skills and training necessary to competently provide the Development Services. If requested by us, you will promptly provide documentary evidence reasonably required by us to prove and demonstrate that you have the necessary competencies, qualifications, expertise and skills; and
all information you provide to us is true, complete and accurate. You will immediately notify us in writing of any changes affecting the details or information you have already provided to us.
You remain at all times and in all circumstances in control of the performance of the Development Services, the prices you charge to provide Development Services, and the terms upon which you provide Development Services to the Engaged Lead. The provision of Development Services is based on a contractual arrangement and dealings solely between your and the Engaged Lead.
Without limiting any of the remedies available to Webhype under this Agreement or under any Relevant Laws, if we become aware of any threatened or actual breach of this clause 5, Webhype may, at our absolute discretion and without liability to you or anyone else:
suspend access to or supply of Lead Generation Services under this Agreement; or
terminate this Agreement in accordance with clause 11 of this Agreement.
Lead Credits and payment for Leads
In order to receive a Lead you must purchase Lead Credits in advance. Each time we provide you with the Contact Details of a Lead and Lead Information, we deduct credit from your Lead Credit balance. Each Lead has a fixed price as set out in the invoice you receive when you purchase Lead Credit from us.
You can purchase Lead Credit by either electronic funds transfer to our nominated bank account or by credit or debit card. Lead Credit are exclusive of GST, which shall be payable in addition.
When you first purchase Lead Credits from us, we offer you a money-back guarantee of the charges paid by you for the initial Lead Credits if you are unsatisfied with the Lead Generation Services (Guarantee). This Guarantee is available on a one-off basis and only applies for the first 2 weeks after you purchase your initial Lead Credits. The Guarantee or any other type of refund does not apply to subsequent top-ups of Lead Credit.
To the extent permitted by Relevant Laws and subject to clause 6.1(c), Lead Credit is not refundable and expire 3 months after purchase.
Once your Lead Credit balance reaches zero, you will no longer receive the Contact Details of any Leads and Lead Information from us, unless you top-up your Lead Credit balance. You can top-up your Lead Credit balance on one-off basis at any time or you can you automatically top-up your Lead Credit balance by entering into a direct debt arrangement with us.
Direct debit authority
If you wish to automatically top-up your Lead Credit balance, you can purchase Lead Credit by authorising us to debit funds from your credit card or bank account (as applicable) when your Lead Credit balance reaches zero (Direct Debt Authority).
If an authorised debit falls on a day that is not a Business Day, we may direct your financial institution to debit your credit card or bank account (as applicable) on the following Business Day,
You may cancel, defer or change your Direct Debit Authority by notifying us in writing at least 14 days before the day on which your next debit is due. If you cancel or defer Direct Debit Authority, Webhype may not be able to provide you with Leads, unless you provide us with new Direct Debit Authority.
It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:
the transaction will be rejected and the payment will be treated as if it were never made;
your financial institution may charge you a fee and/or interest;
we may charge you a dishonour fee at our prevailing rate at the time; and
you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that we can process the debit.
It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.
If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should notify us as soon as possible in writing and Webhype will promptly investigate and we will adjust your credit card or bank account balance as required.
Confidentiality and Privacy Laws
Each party must keep confidential all Confidential Information disclosed to it or made available to it by the other party.
Each party must:
comply with all Privacy Laws; and
not do any act, engage in any practice, or omit to do any act or engage in any practice that would cause the other party to breach or be taken to breach a Privacy Law.
You will indemnify and keep us indemnified against all Claims and Losses (including any reasonable legal costs) arising in connection with any breach by you of your obligations under this clause 7.
Each party represents and warrants to the other party as at the date of this Agreement and during the Subscription Term that:
it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement; and
its obligations under this Agreement are valid, binding and enforceable.
To the maximum extent permitted by Relevant Laws, you must defend, indemnify and hold Webhype, our Affiliates and our Representatives (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of any:
breach or non-performance by you or your Affiliates or your Representatives of this Agreement;
negligent, wilful or wrongful act or omission, committed by you or your Affiliates or your Representatives; or
breach of by you or your Affiliates or your Representatives of any Relevant Laws.
Limitation on liability
To the maximum extent permitted by Relevant Laws, we will not be liable to you or any third party for:
indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
loss of anticipated or actual profits, loss arising from business interruption, loss of anticipated or actual revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of contracts or interest, loss of opportunity or expectation loss or loss of production; or
loss of or damage to any property or any personal injury or death to you or any third person,
arising out of, relating to, or connected to, a Lead, an Engaged Lead, the provision or use of the Lead Generation Services, the provision of Development Services or under or in any way connected with this Agreement.
Under no circumstances will Webhype’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed any amount paid to you under this Agreement in the 3 months immediately preceding the date on which the claim giving rise to such liability arose.
Any condition or warranty which would otherwise be implied in this Agreement is excluded.
Nothing in this Agreement is intended to limit or exclude any consumer guarantees under the Australian Consumer Law.
Any party claiming a dispute exists under the Agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
The parties must in good faith attempt to resolve any dispute between them.
If the dispute cannot by resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
Each party must continue to perform its obligations under this Agreement notwithstanding the existence of any unresolved dispute.
Either party may terminate this Agreement by providing the other party at 30 days’ written notice.
Either party may terminate this Agreement by giving notice with immediate effect if the other party:
commits a breach of any of its material obligations under this Agreement, and if the breach is capable of remedy, does not remedy that breach within 10 days after receipt of notice of the breach or any further time allowed by the party; or
suffers an Insolvency Event.
On termination of this Agreement:
you will immediately return all our Confidential Information and any other property belong to, or related to us or our Affiliates that may be in your possession, custody and control, and certify to us, in writing, that you have done so;
you will immediately pay any fees owing to us under this Agreement; and
we will immediately cease providing Lead Generation Services to you.
Termination of this Agreement does not affect any other rights or remedies available to either party.
Webhype will have no liability to you or anyone else under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement, or from conducting our Lead Generation Services, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic, pandemic, mandatory government lockdown or default of hosting or data centre providers or other suppliers or sub-contractors.
This Agreement, and any documents referred to in it, represent the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the subject matter of this Agreement.
If any provision of this Agreement is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of this Agreement.
If there is any inconsistency between the provisions of the Agreement and the provisions of the schedules and annexures, the provisions of the Agreement will prevail to the extent of the inconsistency.
The parties expressly intend that no employment, partnership, or joint venture relationship is created by this Agreement. you shall not make any commitment or incur any charge or expense in our name.
You acknowledge that we may enter into referral or lead generations agreements or other similar arrangements with other parties and that you shall have no rights under such agreements.
Termination or expiration in whole or in part of this Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination.
Governing law and jurisdiction
This Agreement is governed by the laws in force in Victoria, Australia.
The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.
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