Sponsorship - T's & C's

Services agreement

eMatter Technologies Pty Ltd ABN 27 093 085 977 trading as Lüp and Lüp Tickets of Level 12, 200 Mary Street, Brisbane City, Queensland (Lüp)

and:

Client’s name], [ACN or ABN] of [address] (Client)

1. Defined meanings

The definitions and interpretation rules that apply to this document are set out in clause 15.

1. Orders

   1. Each Order will constitute an offer by the Client to acquire Goods or Services from Lüp subject to this document. Any price lists or quotations given by Lüp to an Client are an invitation to the Client to place an Order only.

   2. A contract will only be made between Lüp and the Client for the sale and purchase of Goods or Services If and upon the acceptance of the Order by Lüp by the provision to the Client of an Order Confirmation.

   3. An Order may only be made by the Client to Lüp:

      1. in writing, via electronic means (including through Quotient, email or facsimile); or

      2. by telephone, if within 3 Business Days of the placement of the Order, it is confirmed by a method specified in clause 2.3(a). 

   4. A Contract resulting from the provision of the Order Confirmation cannot be cancelled by the Client without Lüp’s written consent and Lüp may at its discretion impose a reasonable cancellation charge.

   5. Lüp may withdraw an Order Confirmation at any time and will not be liable for any Loss whatsoever arising from its failure to deliver any or all of the Goods or Services.

2. Services

   1. Lüp will perform the Services specified in a Contract.

   2. The Client is to indemnify Lüp in relation to any Goods that are damaged, lost or stolen while in the possession of the Client or the Client’s personnel or contractors.

3. Payment

   1. The Client agrees to pay Lüp’s Fees, as and when specified in a Contract.

   2. The Client agrees that Lüp may set-off any monies payable by the Client to Lüp against any monies Lüp collects on behalf of the Client.

   3. If the Client does not pay Lüp as and when due under a Contract, then Lüp may charge interest at a rate of 1.25% per month from the due date to the date that the account is paid in full.

4. Information privacy

   1. In this clause 5, “Personal Information” has the meaning given to it in the Privacy Act 1988 (Cth) (Privacy Act).

   2. Lüp may, in the course of providing the Services, disclose Personal Information to the Client.

   3. The Client agrees to comply with:

      1. the Privacy Act; 

      2. the National Privacy Principles specified in the Privacy Act, schedule 1; and

      3. Lüp’s privacy policy from time to time (as the context permits),

in relation to any Personal Information Lüp discloses to the Client.

1. The Client agrees that it will not disclose, to any third party, any Personal Information Lüp discloses to the Client (unless required by law).

2. The Client agrees to immediately, at the request of Lüp, destroy any Personal Information disclosed by Lüp to the Client.

3. The Client indemnities and keeps indemnified Lüp, its servants and agents in respect of any penalty for which Lüp is liable (including Lüp’s legal costs on a full indemnity basis associated with corresponding with a regulatory authority or defending proceedings brought by a regulatory authority) in connection with the Client’s breach of clauses 5.3, 5.4 or 5.5. This clause 5.6 survives termination of this document.

1. Compliance with laws

   1. The Client may only use the Goods and Services in accordance with all applicable laws, including, but not limited to, the Competition and Consumer Act 2010 (Cth) and any similar state-based legislation. 

   2. If the Client wishes to display the Goods or Services in connection with a competition or prize, then the Client is to:

      1. obtain all applicable licences and permits in relation to any competition or prize; and

      2. comply with all applicable laws and any conditions pertaining to any applicable licences and permits.

   3. The Client indemnities and keeps indemnified Lüp, its servants and agents in respect of any penalty for which Lüp is liable (including Lüp’s legal costs on a full indemnity basis associated with corresponding with a regulatory authority or defending proceedings brought by a regulatory authority) in connection with the Client’s breach of clauses 6.1 or 6.2. This clause 6.3 survives termination of this document.

2. Personal Property Securities Act 2009 (Cth) (PPSA)

   1. This document is a security agreement.

   2. The interest of Lüp in the Goods and all proceeds from the sale of the Goods by the Client to a third party is a security interest.

   3. The Client consents to Lüp registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by Lüp to facilitate registration.

   4. The Client agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of the Client or any third party. The parties agree that the Goods are not circulating assets.

   5. The Client waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.

   6. Lüp and the Client agree each of the following requirements or rights under the PPSA do not apply to the enforcement of Lüp’s security interest in the Goods or of this document:

      1. Any requirement for Lüp to give the Client a notice of removal of accession.

      2. Any requirement for Lüp to give the Client a notice of Lüp’s proposed disposal of the Goods.

      3. Any requirement for Lüp to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties.

      4. Any requirement for Lüp to give the Client a statement of account if Lüp does not dispose of the Goods;

      5. Any right the Client has to redeem the Goods before Lüp exercises a right of disposal;

      6. Any right the Client has to reinstate this document before Lüp exercises a right of disposal of the Goods.

   7. Expressions defined in the PPSA have the same meaning when used in this document.

3. Liability

   1. The Client expressly agrees that use of the Goods and Services is at the Client's risk. To the full extent allowed by law, Lüp’s liability for breach of any term implied into this document by any law is excluded. 

   2. All information, specifications and samples provided by Lüp in relation to the Goods are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Client's use of the Goods will not entitle the Client to reject the Goods upon delivery, or to make any claim in respect of them.

   3. Lüp gives no warranty in relation to the Services provided or supplied. Under no circumstances is Lüp or any of its suppliers liable or responsible in any way to the Client or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

      1. any Goods or Services supplied to the Client;

      2. any delay in supply of the Goods or Services; or

      3. any failure to supply the Goods or Services.

   4. Any advice, recommendation, information, assistance or service given by Lüp in relation to Goods or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Lüp will not be liable for any Loss suffered as a result of the Client's reliance on such advice, recommendation, information, assistance or service.

   5. To the fullest extent permissible at law, Lüp is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or Services, whether based on breach of contract, negligence, strict liability or otherwise, even if Lüp has been advised of the possibility of damages.

   6. The Client acknowledges that the Goods or Services are not for personal, domestic or household purposes.

   7. The Australian Consumer Law may give the Client certain guarantees. Where liability for breach of any such guarantee can be limited, Lüp’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

   8. The total liability of Lüp for loss or damage of every kind:

      1. whether arising pursuant to this agreement; or

      2. out of or in relation to the Goods or Services, their sale, delivery or the way they behave, in tort or contract or in any other cause of action; or in any other way whatsoever,

is limited to:

1. the amount paid by the Client to Lüp under this document at the date when such liability arises; or

2. if this agreement has been in place for more than one year, the amount paid by the Client to Lüp over the previous one year period,

subject to any statutory rights of the buyer (including under the Australian Consumer Law) that cannot be excluded by contract.

1. Intellectual Property Rights

   1. The Client warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise Lüp to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Client to Lüp for the purposes of the Order. Further, the Client indemnifies and agrees to keep indemnified Lüp against all Losses incurred by Lüp in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Client.

   2. Unless specifically agreed in writing between Lüp and the Client, all Intellectual Property Rights in any works created by Lüp on behalf of the Client vest in and remain the property of Lüp.

   3. Subject to payment of all invoices due in respect of the Goods or Services, the Lüp grants to the Client a perpetual, non-exclusive licence to use the works created or produced by Lüp in connection with the provision of Goods or Services under this document for the purposes contemplated by the Order.

2. Indemnity

   1. The Client indemnifies and keeps indemnified Lüp, its servants and agents in respect of:

      1. any Claim made by any person (including, but not limited to, the Client) against Lüp or, for which Lüp is liable, in connection with:

         1. any Loss arising from or incidental to the provision of Goods or Services or any failure to provide Goods or Services or any Order or the subject matter of this document; or

         2. any breach of this document by the Client,

including, but not limited to any legal costs incurred by Lüp in relation to meeting any Claim or any party–party legal costs for which Lüp is liable in connection with any such Claim; 

1. any costs (including legal costs on a full indemnity basis) incurred by Lüp in enforcing (or attempting to enforce) its rights under this document.

1. This clause 10 survives termination of this document.

1. Default by Client

   1. Each of the following occurrences constitutes an event of default:

      1. the Client breaches or is alleged to have breached this document for any reason (including, but not limited to, defaulting on any payment due under this document) and fails to remedy that breach within 14 days of being given notice by Lüp to do so;

      2. the Client, being a natural person, commits an act of bankruptcy;

      3. the Client, being a corporation, is subject to:

         1. a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;

         2. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Client's property and undertaking;

         3. the entering of a scheme of arrangement (other than for the purpose of restructuring);

         4. any assignment for the benefit of creditors;

      4. the Client purports to assign its rights under this document without Lüp’s prior written consent;

      5. the Client ceases or threatens to cease conduct of its business in the normal manner.

   2. Where an event of default occurs, except where payment in full has been received by Lüp, the Lüp may:

      1. terminate this document; 

      2. terminate any or all Orders and credit arrangements (if any) with the Client;

      3. refuse to deliver Goods or provide further Services;

      4. repossess and re-sell any Goods delivered to the Client, the payment for which has not been received; or

      5. retain (where applicable) all money paid on account of Goods or Services or otherwise.

   3. In addition to any action permitted to be taken by Lüp under clause 11.2, on the occurrence of an event of default all invoices will become immediately due and payable. 

2. Termination

In addition to the express rights of termination provided in this document, a party may terminate this document by giving 30 days written notice to the other party, provided there are no Contracts pending completion.

1. GST

   1. Interpretation

Except where the context suggests otherwise, words and expressions in this clause 13 have the meanings given to them by the GST Act.

1. Amounts exclude GST

Unless otherwise expressly stated, all amounts stated to be payable under this document exclude GST.

1. Additional amount for GST

   1. If GST is imposed on any supply made under or in accordance with this document, then any party (Recipient) required to provide consideration to another party (Supplier) for that supply will pay to the Supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this document, subject to the Supplier giving a tax invoice to the Recipient.

   2. If this document requires a party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (Reimbursable Expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:

      1. the amount of the Reimbursable Expense less the input tax credits (if any) to which the other party is entitled in respect of the Reimbursable Expense; and

      2. if the other party's recovery from the first party is a taxable supply, any GST payable in respect of that supply.

1. General

   1. (Amendments) This document may only be varied by a further written agreement signed by or on behalf of each of the parties.

   2. (Assignment) The Client cannot assign, novate or otherwise transfer any of its rights or obligations under this document without the prior written consent of Lüp. 

   3. (Attorneys) Each person who executes this document on behalf of a party under a power of attorney declares that he is not aware of any fact or circumstance that might affect his authority to do so under that power of attorney.

   4. (Consents) Unless this document expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this document. To be effective, any consent under this document is to be in writing.

   5. (Costs) Each party will pay their respective costs and expenses in connection with the negotiation, preparation, execution, and performance of this document.

   6. (Counterparts) This document may be executed, in original form or by facsimile transmission, and in any number of counterparts each of which will be considered to constitute the same instrument. 

   7. (Entire agreement) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

   8. (Force majeure):

      1. If circumstances beyond Lüp’s control prevent or hinder its provision of the Goods or Services, Lüp is free from any obligation to provide the Goods or Services while those circumstances continue. Lüp may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

      2. Circumstances beyond Lüp’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems. 

   9. (Further acts) Each party will promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this document. 

   10. (Jurisdiction) This document is governed by the law in force in Brisbane, Queensland, Australia (Jurisdiction). Each party submits to the exclusive jurisdiction of the courts of the Jurisdiction and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this document. Each party irrevocably waives any objection it may have now or in the future to the venue of any proceedings where that venue falls within the Jurisdiction.

   11. (No merger) No right or obligation of any party will merge on completion of any transaction contemplated by this document.  

   12. (Notices) Any notice given under this document:

       1. is to be in legible writing and in English;

       2. is to be in addressed to a party as shown in the schedule;

       3. is to be in signed by the party giving the notice or (on its behalf) by the solicitor for, or by any solicitor, director, secretary, or authorised agent of, that party;

       4. is to be;

          1. delivered to that person’s address;

          2. sent by express post to that person’s address; 

          3. transmitted by facsimile to that person’s address; or

          4. sent by email to that person's email address; and

       5. will be deemed to be received by the addressee:

          1. if delivered by hand, at the time of delivery;

          2. if sent by express post, on the third Business Day after the day on which it is posted, the first Business Day being the day of posting;

          3. if sent by facsimile, on the Business Day on which the notice is received by the recipient's facsimile receiving facility, and a correct and complete transmission report is received;

          4. if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).

   13. (Severability) Any provision of this document that is illegal, void or unenforceable is to be severed without prejudice to the balance of the provisions of this document which will remain in force.

   14. (Waiver):

       1. Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this document by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this document.  

       2. Any waiver or consent given by any party under this document will only be effective and binding on that party if it is given or confirmed in writing by that party.  

       3. No waiver of a breach of any term of this document will operate as a waiver of another breach of that term or of a breach of any other term of this document.

2. Definitions and interpretation

   1. Definitions

In this document:

1. Business Day means a day, not being a Saturday, Sunday or gazetted public holiday, on which banks are open for business in Brisbane, Queensland, Australia.

2. Claim means in relation to any person, a claim, action or proceeding, judgement, damage, Loss, cost, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

3. Contract means a contract resulting from the acceptance by Lüp of an Order in accordance with clause 2.2. 

4. Goods mean any goods supplied by Lüp to the Client, including those supplied in the course of providing Services.

5. GST means any amount paid or payable under any GST law as that expression is defined in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). 

6. GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7. Loss includes costs (including party to party legal costs and the Lüp’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.

8. Lüp’s Fees means the price for the Goods or Services specified in the Order Confirmation. 

9. Order Confirmation means a written confirmation of the Order by Lüp.

10. Order means an order for Goods or Services placed by a Client in response to a Quote and as varied in writing from time to time by the parties. 

11. Quote means a written quote supplied by Lüp to the Client for the supply of Goods or Services via electronic means (including through Quotient, email or facsimile).

12. Services mean the services to be provided by Lüp to the Client in accordance with a Quote and this document. 

1. Interpretation

   1. Clause and subclause headings are for reference purposes only.

   2. The singular includes the plural and vice versa.

   3. Reference to a person includes any other entity recognised by law and vice versa.

   4. Where a word or phrase is defined its other grammatical forms have a corresponding meaning.

   5. Any reference to a party to this document includes its successors and permitted assigns.

   6. Any reference to any agreement or document includes that agreement or document as amended at any time.

   7. The use of the word includes or including is not to be taken as limiting the meaning of the words preceding it.

   8. The expression at any time includes reference to past, present and future time and the performance of any action from time to time.

   9. An agreement, representation or warranty on the part of two or more persons binds them jointly and severally.

   10. An agreement, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally.

   11. A reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

   12. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it.

   13. If a day on or by which an obligation is to be performed or an event is to occur is not a Business Day, the obligation is to be performed or the event is to occur on or by the next Business Day.

   14. A reference to A$, $A, dollar or $ is to Australian currency.

   15. A reference to time is to time in Brisbane, Queensland, Australia.

   16. A reference to a clause, schedule or annexure is to a clause of, or schedule of, or annexure to this document, and a reference to this document includes any schedule or annexure.