1. INTERPRETATION

1.1 In the Agreement, the following definitions apply:

Agreement: means these general terms of business, including any other terms, and the SOW entered into between the Parties;

Applicable Law: means all laws, regulatory requirements, directives, orders and codes of practice from time to time in any relevant jurisdiction applicable to the Services (or their provision or receipt);  

Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, Australia, are open for business;

Campaigns: means any advertising campaigns built, created, managed and/or operated by Sparro for and on behalf of the Client in connection with the provision of the Services, but excludes the Sparro Materials. 

Charges: means the Fees, Expenses, Sparro Tech Fees, the Third Party Expenses and any other amount due by the Client to Sparro under this Agreement;

Client Data: the data provided by the Client to Sparro or input by the Client into any system or interface provided or procured by Sparro in performance of the Services, for use in the delivery of the Services or for facilitating the Client’s use of the Services;  

Client Personal Data: Client Data that constitutes Personal Data, as defined in Clause 9, that is used by Sparro to perform the Services;

Client Materials: means all IPRs concepts, ideas, methodologies, processes, techniques, algorithms, advertisements or materials of the Client which have been developed independently of this Agreement and provided to Sparro or any of its subcontractors by or on behalf of the Client in connection with this Agreement; 

Confidential Information: means any information of a Party or its Group Company that has been designated by a Party as confidential (whether or not is marked “confidential”) or which by its nature ought reasonably to be considered confidential, including information that relates to the business, affairs, operations, inventions, processes, budgets, pricing, product information, software, specifications, strategies, trade secrets, technical or commercial know-how, clients, personnel and suppliers, findings, data or analysis of that Party or its Group Company, but shall not include information which (i) at the time of receipt by the other Party is in the public domain, (ii) subsequently comes into the public domain through no fault of the other Party or its Representatives, (iii) is lawfully received by the other Party from a third party on an unrestricted basis; and/or (iv) is already known to the other Party before receipt under this Agreement. For purposes of this Agreement, Client Personal Data shall not constitute Confidential Information of the Client;

Data Protection Legislation: means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including the Privacy Act 1988 (Cth) and the Australian Privacy Principles made under that Act; in any case, as updated, amended or replaced from time to time;

Deliverables: means any materials which are to be provided by, or Campaigns to be arranged by, Sparro as specified in the SOW, but excludes any Sparro Materials;

Developed Materials: means any materials work product, technology or software used, developed or created under or in connection with this Agreement or the provision of the Services, and includes any Campaigns or Deliverables;

Effective Date: means the date that is specified on page 1 of this document;

Employees: means those individuals employed by a Previous Supplier whom the parties reasonably believe are wholly or mainly assigned to carrying out the Services, or services equivalent to the Services, as at the Effective Date and will be so assigned immediately before the Effective Date and whose names and details of employment are provided in writing before the Effective Date;

Exit Transferring Employees: means any person who is employed or engaged by Sparro and/or any Sub-Contractor and who is wholly or mainly assigned to all or any of the Services or any part thereof. 

Expenses: means expenses incurred in the provision of the Services including but not limited to travel, accommodation, subsistence and other related expenses incurred by Sparro each month as agreed in the SOW; 

Fees: means the compensation payable to Sparro for the Services as set out in the SOW, including (without limitation) the Monthly Fees;

Group Company: means related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) of a Party and “Group” shall be construed accordingly;

Initial Term: means the period of 12 months from and including the Effective Date;

IPR: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, moral rights, goodwill and the right to sue for passing off, rights in designs, database rights, rights in computer software and source code, rights to use, and protect the confidentiality of, Confidential Information, know-how, and all other intellectual or industrial property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Media Company: means any organisation, person or entity  who owns or controls the point of display for any Media Placement, and in respect of programmatic media, the DSP or ad exchange (or where applicable the SSP) which represents the inventory of the relevant Media  Company;

Media Placement: means any form of traditional or digital or online advertising or media space or inventory in any form or medium delivered to or on behalf of the Client directly or indirectly by on on behalf of Brainlabs in connection with the provision of the Services which is ultimately owned or controlled by a Media Company;

Media Spend: means the total amount that is spent by or on behalf of the Client and its Group with third parties for the purchase of media in connection with (i) the Campaigns; or (ii) any platform licence granted pursuant to the SOW;

Personal Data: has the meaning given to the term ‘personal information’ under the Data Protection Laws;

Personal Data Breach: means any unauthorised access to, or use or disclosure of, Personal Data or any loss of Personal Data in circumstances where unauthorised access to, or use or disclosure of, that Personal Information may occur,

Previous Supplier: means any supplier of the Services, or services equivalent to the Services, before the Effective Date;

Renewal Term: means a period of 12 months immediately after the end of the Initial Term or any subsequent Renewal Term (as applicable);

Representatives: of a party, means its officers, employees, consultants, agents, subcontractors and advisers;

Services: means the Services to be supplied by Sparro under this Agreement as set out in the SOW, which includes the provision of any Deliverables;

Sparro Materials: means all IPR, software and technology (in object and source code form, including user interfaces, reporting dashboards, models, and documentation relating to them), knowhow, concepts, ideas, insights, forecasts, projections, methodologies, processes, algorithms developed by or on behalf of Sparro, its subcontractors or licensors prior to the commencement of the SOW or subsequently brought into existence other than in the course of performing that SOW, and any improvements, enhancements, modifications, or developments of any of the foregoing;

Sparro Tech: means any specific Sparro Materials (if any) identified in the SOW which are provided to the Client in connection with the Services but for which payment is payable by the Client in addition to the Fees;

Sparro Tech Fees: means the compensation payable to Sparro for the Sparro Tech as set out set out in the SOW;

Special Conditions: means any terms identified as special conditions in the SOW;

Sub-Contractor: means any contractor, agency and/or other third party providing and/or engaged by Sparro to provide all or part of the Services;

Term: means term of this agreement as set out in clause 2.1;

Third Party Expenses: means any other third party fees, costs and expenses (including, without limitation, where applicable, Media Spend and any surcharges applied in connection with industry taxes) incurred by Sparro in relation to the provision of the Services, including those set out in the SOW; and

Third Party Terms: means the terms and conditions applicable to any any third party website, platform or media service which either (i) the Client receives access to in connection with the Services or (ii) the Client requires Sparro to use in provision of the Services, including but not limited to any set out in the SOW or in another document or website provided by Sparro to the Client.

1.2 In the Agreement, the following rules apply: 

1.2.1 a person includes a legal person (such as a limited company) as well as a natural person; 

1.2.2 a reference to a Party includes its successors or permitted assigns; 

1.2.3 any reference to an enactment of legislation includes any subordinate legislation made from time to time under it and is to be construed as references to that enactment as from time to time amended or modified or any enactment replacing it; 

1.2.4 the words “include” and “including” shall be construed without limitation; and 

1.2.5 a reference to “in writing” or “written” includes email.

2. COMMENCEMENT, DURATION AND SOWs

2.1 Unless otherwise stated in the SOW, this Agreement shall commence on the Effective Date and shall continue for the Initial Term, unless and until terminated earlier by either party in accordance with clause 12. Unless otherwise stated in the SOW, the Agreement will automatically continue for a Renewal Term at the end of the Initial Term unless either  party notifies the other party at least 90 days immediately prior to the end of the then-current term that the first party wishes to end the Agreement, in which case the Agreement expires at the end of the then-current term unless and until terminated earlier by either party in accordance with clause 11. 

2.2 The SOW will commence on the date set out within it.

2.4 Sparro shall not be obliged to perform any work or services for or on behalf of the Client until the SOW has been signed by both the Client and the applicable Sparro entity.

2.5 Each Party warrants and represents on an ongoing basis that: 

2.4.1 it has the full right, power and authority to enter into and perform its obligations under the Agreement and the SOW; and 

2.4.2 this Agreement and the SOW is executed by its duly authorized representative. 

2.6 All other warranties, conditions and other terms implied by law are, to the fullest extent permitted by law, excluded from this Agreement.    

3. SUPPLY OF SERVICES

3.1 Sparro shall perform the Services and deliver the Deliverables to the Client, in accordance with this Agreement and shall use reasonable endeavours to ensure that they are performed and delivered in compliance with Applicable Law.

3.2 In performing its obligations under the Agreement, Sparro will exercise the care and skill which would reasonably be expected to be exercised by a professional operator engaged in the same type of undertaking under the same circumstances and shall perform such Services in accordance with the dates specified in the SOW. Time shall not be of the essence in relation to the Services and such dates.

3.3 Sparro will use its reasonable efforts to ensure (but is unable to guarantee) that any software that it uses in the provision of the Services will operate without error and not introduce any virus or malware into the Client’s systems or technology.  

3.4 Sparro shall have the right to make any changes to the Services which it deems necessary in order to comply with any Applicable Law or rules, or which it considers will not materially impact the nature or quality of the Services. Sparro shall notify the Client if it makes any such changes which will materially impact the Client.

3.5 In the event that Sparro is unable to obtain adequate credit insurance on existing terms in respect of the Client’s payment obligations under this Agreement, Sparro shall be entitled to: 

3.5.1 request such other reasonable security from the Client, including but not limited to the provision of a guarantee from a third party of acceptable standing; or 

3.5.2 require a deposit equivalent to 100% of the Client’s anticipated financial obligations to Sparro for the following month of the Initial Term or Renewal Term (as the case may be),

provided that the Client is not under an obligation to agree to such proposals, but Sparro shall be entitled to suspend and/or terminate the provision of the Services until such time as the requirements set out in this clause are met to its reasonable satisfaction.

3.6 The parties agree that to the extent Brainlabs enters into Insertion Orders (“IOs”) with Media Companies, Brainlabs may, where the Media Company accepts such terms,  use the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (Ver. 3.0) (subject to reasonable modification by Brainlabs) (the “IAB Terms”). Brainlabs is hereby authorised by the Client to enter into the IAB Terms as agent for the Client under the principle of sequential liability and to bind the Client as Advertiser (as defined therein) to those IAB Terms.

4. CLIENT’S OBLIGATIONS

4.1 The Client shall:

4.1.1 promptly provide Sparro with full and clear instructions as to its requirements for the Services and Deliverables and such information, assistance and materials as Sparro may reasonably require (including providing any purchase order numbers that Sparro requires for the purpose of any invoice as far in advance as possible);

4.1.2 ensure that all information, data and materials it provides to Sparro are complete and accurate and promptly notify Sparro if this is no longer the case for any previously provided information, data and/or materials;

4.1.3 cooperate with Sparro in all matters relating to the Services (including by promptly signing off on Deliverables, plans and changes submitted by Sparro for approval, and providing Sparro with administrative access to any agreed media or third party platforms as agreed in advance);

4.1.4 obtain and maintain all necessary licences, permissions and consents which may be required to enable Sparro to provide the Services;

4.1.5 comply with any applicable Third Party Terms; and

4.1.6 use its reasonable efforts to ensure that: 

(a) any software to which it gives access to Sparro in connection with Sparro’ provision of the Services will operate without error; and 

(b) it does not introduce any virus or malware into Sparro’ systems or technology or the systems or technology of any third party’s systems used in connection with the Services.

4.2 If Sparro’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any applicable obligation under this Agreement (“Client Default“), then:

4.2.1 Sparro shall not be responsible for any failure or delay to carry out its own obligations under this Agreement; and

4.2.2 Sparro shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Sparro’ failure or delay to perform any of its obligations.

5. CHARGES AND PAYMENT

5.1 In consideration of the provision of the Services by Sparro, the Client shall pay the Charges. Subject to clause 5.3 below, time for such payment shall always be of the essence.

5.2 Unless otherwise set out in the SOW, Sparro shall invoice the Client for all Charges monthly in arrears.

5.3 Unless otherwise set out in the SOW or expressly agreed in writing by the Parties, the Client shall pay each invoice submitted by Sparro:

5.3.1 within thirty (30) days of the date of the invoice; and

5.3.2 in full and in cleared funds to the Sparro nominated account for the Client (as provided by Sparro in writing, and to be expressly checked by Client via telephone call with a known point of contact at Sparro immediately prior to the first payment to that account) by ACH or wire transfer only.

5.4 If the Client fails to make any payment due under the Agreement by the due date for payment, then Sparro may charge the Client interest on any overdue amounts, calculated in accordance with the Reserve Bank of Australia’s cash rate from the date that the relevant amount becomes due, until actual payment of the overdue amount.  The Party must pay the interest together with the overdue amount. 

5.5 Without limiting its other rights or remedies, Sparro may suspend (in whole or in part) the provision of the Services if any of its invoices remain unpaid in full more than 14 days after the due date for payment, until such time as they are paid in full together with any interest which is payable under clause 5.4. 

5.6 The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). 

5.7 The Client shall be solely liable for the payment of any Third Party Expenses agreed in advance by the Parties and Media Spend incurred that is ten percent (10%) higher or lower than any agreed budget. For the avoidance of doubt the Client shall pay all Media Spend directly to the relevant third parties, unless otherwise agreed in the SOW.

5.8 Sparro may increase Fees on an annual basis with effect from each anniversary of the Effective Date: 

5.8.1 in line with the percentage increase in the Australian Consumer Price Index in the preceding 12-month period; and/or 

5.8.2 as otherwise determined by Sparro. 

If any increases are made in accordance with this clause, then the Client shall have the right to reject (acting reasonably and in good faith) any such increases within 30 days of the proposal made by Sparro and, if it does so, Sparro may terminate this Agreement on 30 days written notice to the Client. 

6. GST

6.1 Words or expressions used in this clause that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning given to them in that Act.

6.2 Any amount specified in the SOW as the consideration payable for any taxable supply made under that SOW does not include any GST payable in respect of that supply, unless that SOW specifically states that GST is included in that amount.

6.3 If:

6.3.1 a party makes a taxable supply under the SOW (Provider); and

6.3.2 the consideration for that taxable supply is not expressed as including GST,

then the recipient of the taxable supply (Taxable Supply Recipient) must also pay to the other party, in addition to the consideration payable for that supply, the amount of GST payable in respect of that taxable supply, at the same time that the consideration for the relevant taxable supply is payable.

6.6 The Taxable Supply Recipient is not obliged under the SOW to pay the amount of any GST payable until the Provider provides it with a valid tax invoice for the taxable supply.

6.5 If an adjustment event arises in relation to a taxable supply made by a Provider under the SOW, the amount paid or payable by the Taxable Supply Recipient will be amended to reflect this and a payment will be made by the Taxable Supply Recipient to the Provider or vice versa (as the case may be).

6.6 If one of the parties is entitled to be reimbursed or indemnified for a loss, cost, expense or outgoing incurred in connection with the SOW, then the amount of the reimbursement or indemnity payment must first be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified (or its representative member) is entitled in relation to that loss, cost, expense or outgoing.

 

7. INTELLECTUAL PROPERTY RIGHTS

7.1 The Parties acknowledge and agree that: 

7.1.1 there shall be no change in the ownership, or transfer or assignment of ownership, of IPR in the Client Materials, the Sparro Materials and any other materials as a result of the Agreement; 

7.1.2 subject to clause 7.1.1, all IPR in any Developed Materials vest in Sparro immediately on creation; and

7.1.3 nothing in this Agreement assigns, transfers or licenses any IPR of Sparro or its licensors (including any IPR in any Developed Materials), unless expressly stated in the SOW. 

7.2 If the nature of the Services requires the IPR rights to be treated differently from the position set out in clause 7.1, then the Parties may mutually to agree any such rights in the SOW.

7.3 Sparro hereby grants to the Client a non-exclusive, royalty free, non-transferable licence during the Term to use the Sparro Materials provided to the Client under the SOW (including any IPR in such Sparro Materials) solely in connection with the Client’s receipt of the Services and use of the Developed Materials.

7.4 Except as expressly permitted by Sparro in the SOW or as expressly provided for by Applicable Law, the Client shall not use, copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source of any Sparro Materials or any other software provided or developed as part of the Services.

7.5 Sparro warrants that: 

7.5.1 it is the sole legal and beneficial owner of, and owns all the rights and interests in, or is otherwise entitled to use and licence to the Client, the Sparro Materials; and

7.5.2 the Client’s use of the Sparro Materials as set out in clause 7.3 (and in accordance with Sparro’ instructions) will not infringe the IPRs of any third party.

7.6 The Client grants Sparro a royalty free, non-exclusive, sub-licensable, irrevocable right to: 

7.6.1 during the Term, use, copy, adapt and modify the Client Materials (including any IPR in such Client Materials) to the extent necessary for Sparro to provide the Services; and

7.6.2 during and after the Term, use any statistical data (in aggregated form), learnings or knowhow originating from the Services or the Client Materials (to the extent not already Sparro Materials) for the purposes of developing or improving Sparro’ products and/or services; and

7.6.3 unless otherwise agreed in writing, during and after the Term, use the Client’s name and logo for the purposes of identifying the Client as a client of Sparro in pitch and proposal documents and on Sparro’ website. Any other use by Sparro beyond this shall be subject to the Client’s prior approval (acting reasonably).

7.7 The Client warrants that: 

7.7.1 it is the sole legal and beneficial owner of, and owns all the rights and interests in, or is otherwise entitled to use and licence to Sparro, the Client Materials;

7.7.2 Sparro’ use of the Client Materials as set out in clause 7.6 (and in accordance with the Client’s instructions) will not infringe the IPR of any third party and will not constitute a breach of Applicable Law; and

7.7.3 it is entitled to grant Sparro access to the Client’s user accounts with such third party platforms as may be necessary for Sparro to perform the Services.

7.8 The Client acknowledges that the provision of certain Services by Sparro and receipt of such Services by the Client may rely on third party IPR. Sparro shall use reasonable endeavours (but makes no guarantees that it will be able) to procure licence terms from the relevant third party sufficient for Sparro to provide the Services, including, where applicable, the right to sub-licence such IPR to the Client or for the Client to enter into separate licence terms with the third party. In the event that Sparro is not able to procure such licence terms, then Sparro is under no obligation to provide (and will not be liable to the Client for not providing) any Services that rely on the licensing of the relevant third party IPR and the Parties shall make the necessary amendments to the SOW to reflect any aspect of the Services that needs to change due to the inability to procure the licenses contemplated under this clause.

8. CONFIDENTIALITY

8.1 Each Party shall keep in strict confidence all Confidential Information of the other Party and shall not: 

8.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or 

8.2.2 disclose such Confidential Information to any third party except as expressly permitted by this clause or as otherwise agreed by the Parties in writing.

8.2 A Party may only disclose the other Party’s Confidential Information to those of its Representatives who need to know it for the Permitted Purpose provided that: 

8.2.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; 

8.2.2 it procures that those Representatives are bound by confidentiality restrictions which ensure materially the same level of confidentiality in respect of the Confidential Information as this Agreement; and 

8.2.3 it is responsible for the actions or omissions of such Representatives in relation to the Confidential Information as if they were actions or omissions of that Party. 

8.3 The confidentiality obligations set forth in clauses 8.1 and 8.2 above will not apply to any information that: 

8.3.1 is at the time of disclosure or becomes generally available to the public through no fault of the receiving Party; 

8.3.2 is lawfully provided to the receiving Party by a third party free of any confidentiality duties or obligations; 

8.3.3 was already known to the receiving Party at the time of disclosure free of any confidentiality duties or obligations; or 

8.3.4 was independently developed by employees and contractors of the receiving Party. 

8.4 A Party may also disclose such of the other party’s Confidential Information as is required to be disclosed by law, by order of any governmental or regulatory authority, by order of a court of competent jurisdiction, or by the rules of any stock exchange on which that party’s securities are listed, subject to giving the other Party, to the extent permitted by law, as much advanced notice of such disclosure as reasonably practicable and provided that the disclosing party may only disclose the minimum amount of information required to satisfy the relevant law, order or rule (as the case may be).

8.5 This clause 8 shall survive termination of the Agreement. For clarity, nothing in this clause shall prevent Sparro from making an announcement that it has a commercial agreement with the Client or from identifying the Client in any case study that Sparro produces in relation to Sparro’ delivery of the Services.

9. CHANGES

9.1 In the event that the Client notifies Sparro of its desire to change the Services or the way they are delivered (including as a result of a change in Applicable Law), then Sparro shall use reasonable efforts to provide the Client with a proposal document in the form of a variation to the SOW, which shall include any changes to the Charges as necessary. Any changes to the Services shall only become effective if, and once, the variation to the SOW is agreed by both Parties in writing.

10. DATA PROTECTION

10.1 Each Party agrees that, in the performance of its respective obligations under this Agreement, it shall comply with the provisions of the Data Protection Legislation. 

10.2 In connection with the use of Client Personal Data, Sparro agrees, solely if and to the extent required by Data Protection Legislation, that:

10.3.1 Sparro shall use and/or disclose the Client Personal Data only for the limited and specified purposes as described in the SOW, unless obligated to do otherwise by Data Protection Legislation. In such case, Sparro will inform Client of that legal requirement before such use or disclosure unless legally prohibited from doing so, and will also inform Client of any determination made by Sparro that it can no longer meet its obligations under the Data Protection Legislation (in which case Client may take reasonable and appropriate steps to stop and remediate unauthorized use of Client Personal Data);

10.3.2 without limiting the foregoing, Sparro shall not: 

(a) use or disclose Client Personal Data outside of the direct business relationship between Sparro and Client; or 

(b) combine the Client Personal Data received pursuant to the SOW with Personal Data: 

(i) received from or on behalf of another person, or 

(ii) collected from Sparro’s own interaction with any consumer to whom such Client Personal Data pertains, 

except, in each case (i) and (ii), only as permitted by Data Protection Legislation and/or this Agreement;

10.3.3 Sparro shall provide the level of privacy protection to Client Personal Data as is required by the Data Protection Legislation; 

10.3.4 Sparro agrees that Client may take reasonable and appropriate steps to help to ensure that Sparro’s use of Client Personal Data is consistent with Client’s obligations under the Data Protection Legislation;

10.3.5 Sparro shall take steps to ensure the Sparro personnel who are authorised to have access to the Client Personal Data are committed to confidentiality or are under an appropriate statutory obligation of confidentiality when using or disclosing Client Personal Data;

10.3.7 Sparro shall, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the use of Client Personal Data under this Agreement, implement technical and organisational measures and procedures to ensure a level of security for the Client Personal Data appropriate to the risk;

10.3.8 it shall not transfer, access or use Client Personal Data outside Australia unless the transfer is permitted by, and performed in accordance with, the Data Protection Legislation;

10.3.9 Sparro shall inform the Client without undue delay upon becoming aware of any Personal Data Breach;

10.3.10 at the Client’s expense Sparro shall provide to the Client and any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Legislation, information and assistance reasonably necessary to demonstrate or ensure compliance with the obligations in this clause 9 and/or the Data Protection Legislation; and

10.3.11 during normal business hours, on reasonable prior notice and at the Client’s expense, Sparro shall permit the Client or its representatives to access any relevant premises, personnel or records of Sparro required to audit compliance with the provisions of this clause 9 related to Client Personal Data. Such audits and inspections shall: 

(a) be no longer than reasonably necessary and in any event no longer than 10 consecutive business days (except where required by law or a competent regulator); and 

(b) be limited to once per year of the contract, unless an audit or inspection is required by a competent regulator;

10.3.12 Sparro shall notify the Client as soon as reasonably practicable if it receives a request from an individual to exercise his or her rights under the Data Protection Legislation in relation to that individual’s Personal Data; and

10.3.13 Sparro shall provide the Client with reasonable co-operation and assistance in relation to any request made by an individual to exercise its rights under the Data Protection Legislation in relation to that individual’s Personal Data provided that the Client shall be responsible for Sparro’ reasonable costs and expenses arising from such co-operation and assistance.

10.3 If either Party receives any complaint, notice or communication which relates directly or indirectly to the use or disclosure of Client Personal Data by the other Party or to either Party’s compliance with the Data Protection Legislation, it shall as soon as reasonably practicable notify the other Party and it shall provide the other Party with commercially reasonable co-operation and assistance in relation to any such complaint, notice or communication.

10.4 Sparro may disclose Client Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this Agreement or as required by law.

10.5 In connection with any Client Data, the Client hereby represents and warrants that: 

(a) any Personal Data that the Client provides or makes available to Sparro, was, is, and will be collected, protected and maintained in accordance with applicable Data Protection Legislation; 

(b) the Client has provided all required notices and obtained all necessary rights, consents, releases and permissions to provide or make available such Client Data to Sparro; and 

(c) the collection, use and disclosure of such information does not violate any laws or rights of any third party, including without limitation any IPR, rights of privacy, or rights of publicity, and is not inconsistent with the terms of any applicable privacy policies. Sparro takes no responsibility and assumes no liability for any Client Data that the Client or any other user or third party provides, posts, publishes or transmits in relation to Services.

11. LIMITATION OF LIABILITY

11.1 Nothing in the Agreement shall limit or exclude either Party’s liability for:

11.1.1 death or personal injury caused by its negligence;

11.1.2 fraud or fraudulent misrepresentation; 

11.1.3 the Client’s payment obligations to Sparro; and/or

11.1.4 anything else that cannot be limited or excluded by law.

11.2 Subject to clause 11.1, Sparro’s total liability to the Client in respect of all losses arising under or in connection with the Agreement, whether in contract (including under any indemnity), tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the Fees paid or payable to Sparro under the SOW in the 12 months immediately preceding the breach giving rise to the claim.

11.3 Subject to clause 11.1, neither Party shall be liable to the other Party for any: 

11.3.1 loss of actual or anticipated income, revenue or profits, business, business opportunities, contracts, wasted expenditure or anticipated savings;

11.3.2 loss of goodwill or reputation;

11.3.3 loss of use;

11.3.4 loss or damage arising from loss, damage or corruption of any data;

11.3.5 fines, penalties or regulatory charges; and/or

11.3.6 any indirect, consequential or special loss or damage of any kind howsoever arising (including but not limited to pure economic loss, costs, damages or charges), 

in each case arising directly or indirectly under or in connection with the Agreement.  

11.4 This clause 11 shall survive termination of the Agreement.

12. TERMINATION

12.1 The SOW shall last for the duration set out within. Either Party may terminate the SOW prior to this in accordance with the termination provisions set out in this Agreement or in the SOW.

12.2 Either Party may terminate this Agreement by giving notice to the other Party no less than 90 days immediately before the end of the Initial Term or the Renewal Term (as applicable). For the avoidance of doubt, where different termination provisions or a fixed period are set out in the SOW, the provisions of this clause 12.2 shall not apply, unless otherwise stated in the SOW.

12.3 Without limiting its other rights or remedies, and with immediate effect by giving written notice to the other Party:

12.3.1 either Party may terminate the SOW if the other Party commits a material breach of the Agreement in respect of that SOW which is not capable of remedy or which is capable of remedy but is not remedied within 30 days of the breaching Party receiving a notice of the breach (or 7 days, in the event of non-payment of an overdue invoice by the Client);

12.3.2 Sparro may terminate this Agreement if its right to terminate the SOW arises under clause 12.3.1; and 

12.3.3 either Party may terminate this Agreement or any SOW if the other Party: passes a resolution for or is the subject of a petition for winding up (other than for the purposes of a solvent amalgamation or reconstruction); has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; ceases to carry on business; or has any event occur to it in a jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause.  

13. CONSEQUENCES OF TERMINATION

13.1 Upon termination of the Agreement in accordance with clause 12.2, the SOW shall continue on the terms of this Agreement for such duration as set out in the SOW, unless terminated prior to this in accordance with the termination provisions set out in that SOW.  

13.2 Subject to clause 13.1, on termination or expiry of the Agreement or the SOW:

13.2.1 the Client shall immediately pay to Sparro all of Sparro’ outstanding Charges, including without limitation all unpaid invoices (and interest where applicable) and, upon invoice by Sparro, all Charges for Services supplied up to the date of termination or, if later, the end of any transition period;

13.2.2 each Party shall, on request by the other Party, either return or destroy all materials and documents in their possession belonging to the other Party that it has no rights to retain under the Agreement;

13.2.3 the accrued rights, remedies, obligations and liabilities of the Parties as of the date of termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination; and

13.2.4 clauses which expressly or by implication survive termination shall continue in full force and effect.

13.3 In the event that the Agreement is terminated by Sparro for non-payment pursuant to clause 12.3.1 or its common law rights, the Client shall immediately pay as a debt an amount equal to the Charges which would otherwise have been due under the Agreement in respect of the remainder of the Initial Term, the then-current Renewal Term (as applicable) or any other fixed duration, had the Agreement not been terminated.

14. NON SOLICITATION

14.1 Neither Party shall (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other Party any person employed or engaged by that Party during the Term or for a further period of 12 months after the termination of the Agreement, other than by means of a national advertising or recruitment campaign open to all comers and not specifically targeted at any of the staff of the other Party. The Parties acknowledge and agree that the restraint contemplated in this clause is reasonable to protect the Parties legitimate commercial interests.

15. FORCE MAJEURE

15.1 For the purposes of the Agreement, “Force Majeure Event” means an event beyond the reasonable control of either Party including but not limited strikes, lock-outs or other industrial disputes, terrorist or DDOS attacks, sanctions, failure of a utility service, transport network or IT systems (including internet connectivity and software failure), act of God, outbreak of viral pandemic, epidemic, 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 or default of suppliers or subcontractors.

15.2 Save for the Client’s payment obligations, neither Party shall be liable to the other for any delay or failure to perform its obligations under the Agreement as a result of a Force Majeure Event.

15.3 If the Force Majeure Event prevents Sparro from providing any of the Services for more than 2 months, the parties shall act in good faith (for a period of a further 2 months) to find a solution to provide such Services to the Client. After such time, either Party shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the other Party.

 

16. ANTI-BRIBERY

16.1 Both Parties shall comply with, and not engage in any activity, practice or conduct which would constitute an offence under any Applicable Laws relating to anti-bribery and anti-corruption, including the Criminal Code Act 1995 (Cth).

17. GENERAL PROVISIONS

17.1 Each party shall effect and maintain with reputable insurers [the insurances specified in the SOW, and otherwise] such insurances as are prudent and customary in the businesses in which the Parties are engaged, and as required by law. The Parties agree to provide evidence of such insurances on reasonable request.

17.2 Neither Party may assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) except that Sparro may, without the consent of the Client, assign or transfer the Agreement to any of its Group Companies.

17.3 Nothing in this Agreement shall prevent Sparro from appointing Sub-contractors or agents in order to carry out its obligations under this Agreement provided that Sparro shall remain liable to the Client for the acts or omissions of such Sub-contractors.

17.4 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed severed from the Agreement. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

17.5 No failure or delay by a Party to enforce or exercise any right or remedy under this Agreement or by law shall be deemed to be a waiver of that or any other right or remedy, nor shall it operate so as to bar the enforcement or exercise of that or any other right or remedy at any time subsequently. Any waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach.

17.6 A person who is not a party to this Agreement shall have no right to enforce any term of this Agreement unless expressly stated otherwise in this Agreement or permitted by applicable Australian law. Notwithstanding the foregoing, any member of the Sparro Group shall be entitled to enforce the terms of this Agreement as if it were a party to it.

17.7 The Agreement constitutes the entire agreement between the Parties and shall apply to govern all aspects of the relationship between them. The Agreement supersedes and terminates any previous arrangement, understanding or agreement relating to the Services between the Parties (whether written or oral). Each Party acknowledges that: 

17.7.1 upon entering into this Agreement, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a Party to this Agreement or not) except those expressly set out in this Agreement; and 

17.7.2 the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for damages for breach of contract under this Agreement.

17.8 Except as expressly provided for under the Agreement, the rights and remedies are cumulative and are not exclusive of any other rights or remedies provided by law or otherwise.

17.9 Except as set out in this Agreement, no variation of this Agreement shall be effective unless it is agreed in writing and signed by both Parties.

17.10 Each Party shall take reasonable steps to ensure that ‘modern slavery’ (as that term is defined in section 4 of the Modern Slavery Act 2018 (Cth)) is not taking place in any of its supply chains or in any part of its own business. Each Party shall notify the other Party immediately if it becomes aware of any actual or suspected modern slavery in a supply chain which has a connection with this Agreement. 

17.11 Each Party shall execute such documents and take such steps as the other Party may reasonably require to fulfil the provisions of and to give to each Party the full benefit of this Agreement.

17.12 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or to authorise either Party to act as agent for the other and neither Party shall have authority to act in the name of or on behalf of the other, or to enter into any commitment or make any representation or warranty or otherwise bind the other in any way.

17.13 Any notice given by one Party to another under this Agreement shall be in writing, delivered by hand, prepaid first class or special delivery post to the address given at the start of this Agreement (or such subsequent address communicated to the other Party) and marked for the attention of the relevant Party (and, for notices delivered to Sparro, marked for the attention of the Legal Department, with a copy emailed to legal@brainlabsdigital.com).  Notices delivered by hand shall be deemed given on the day of receipt (unless received after 5.00 pm in which case they shall be deemed given on the next Business Day).  Notices sent by prepaid first class post or special delivery shall be deemed to have been given two Business Days after the date of posting.

17.14 This Agreement may be executed in any number of counterparts, which shall each constitute an original and together constitutes one agreement. 

17.15 In the event of conflict or inconsistency between any of the parts of the Agreement, the conflict or inconsistency shall be resolved in the following order of precedence (the earlier taking precedence over the later): 

17.15.1 the Special Conditions, if any; 

17.15.2 the SOW; 

17.15.3 the MSA; and 

17.15.4 any other document incorporated into the Agreement by reference.

17.16 Subject to clauses 17.16 and 17.17, if there is a dispute between the Parties, before commencing any court or similar proceedings, the Parties will escalate the relevant dispute to a member of senior management for them to then discuss the issues in good faith with a view to resolving the dispute amicably. 

17.17 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of New South Wales, Australia.

17.18 Each Party irrevocably agrees that this Agreement is governed by the laws of New South Wales, Australia, and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia, and the courts having appeal from them.