Terms and Conditions

1. Definitions & Interpretation

1. Definitions

1.1

1.1 Definitions

In these terms and conditions the words defined below shall have the following meanings assigned to them, and similar expressions shall bear corresponding meanings:

Agreement means the agreement formed by the acceptance by the Client of a Proposal (subject always to clause 2(d) below), for the provision of Services to the Client, the terms of which are set out in the Proposal and these terms and conditions.

Client means the entity or individual specified as the Client in the Agreement.

Client Website means the specific website referred to in the Agreement.

Commencement Date means the date the Agreement is signed by the Client unless otherwise specified in the Agreement).

Confidential Information means trade secrets, documentation, files, data, content intellectual property, materials or other proprietary information. Confidential Information may be oral or written.

Consequential Loss means loss beyond the normal measure of direct damages and includes without limitation and whether or not such loss would be within the normal measure of direct damages, indirect loss, loss of profit, loss of revenue, loss of business, loss or actual or anticipated savings, loss of bargain, loss of business reputation, loss of use, cost of capital or borrowings or costs of substitute goods, facilities or services and loss of opportunity (including opportunities to enter into arrangements with third parties).

Fees means the fees set out in the Proposal, or as otherwise agreed in writing by the parties.

First Invoice means the first invoice issued by P & L to the Client after the Commencement Date in accordance with clause 4.

GST, GST Law and other terms used in clause 13 have the meanings given to them by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time).

Intellectual Property means all copyrights, trademarks, trade secrets, patents, utility models and other intellectual property rights recognised in any jurisdiction worldwide and includes any applications and registrations in respect of those rights.

Maintenance Services means performing all the tasks necessary to keep the Client Website up to date and in good working order as per the Client’s requirement so that it functions correctly with the latest web browsers and mobile devices.

P & L means Penn & Lytics Pty Ltd ACN 648 432 579 as trustee for The Huckerby Trust ABN 50 430 812 136;

Proposal means the physical or electronic proposal provided by P & L to the Client.

Services means those analytic and marketing services and advice and/or Maintenance Services provided by P & L as outlined in the Proposal.

Software means software and firmware provided by P & L, and any associated documentation, and includes any updates, upgrades, error corrections, changes or revisions issued by P & L as part of the Services.

1.2

Interpretation

Unless expressed to the contrary in these terms and conditions:

(a) words importing the singular include the plural and vice versa;

(b) if the day on which any act, matter or thing is to be done under this document is not a business day, that act, matter or thing may be done on the next business day; and

(i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;

(ii) any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(iii) time is to the local time in Perth, Western Australia;

(iv) “$” or “dollars” is a reference to the legal currency of Australia;

(v) these terms and conditions include all schedules and annexures referred to in it; and

(d) headings do not affect the interpretation of these terms and conditions.

1.3 Inconsistency

If there is any inconsistency between the Proposal and these terms and conditions, then these terms and conditions will prevail.

1.3

Inconsistency

If there is any inconsistency between the Proposal and these terms and conditions, then these terms and conditions will prevail.

2. Engagement of Penn & Lytics

(a) These are the standard terms and conditions of P&L, a provider of analytics and marketing services in Australia. These terms and conditions apply to all and every product and service provided by P&L.

(b) No Client’s terms and conditions, howsoever provided, apply to the provision of the Services or form part of the Agreement (even if any representative of P&L signs those terms and conditions and/or they are annexed to these terms and conditions or any Proposal). The parties agree that any amendments to these terms and conditions can only be made in writing signed by authorised managers of both parties, including any inclusion of special conditions in or attached to any Proposal.

(c) By signing the Agreement (including by clicking the button/link on any electronic version of the Agreement) or by accessing or using any of the Services the Client acknowledges they have read and understood, agree to and are bound by these terms and conditions.

(d) P&L reserves the right to accept or decline, in whole or in part, any request for Services placed by the Client.

(e) P&L will perform its obligations under this Agreement as an independent contractor. The parties acknowledge and agree that their relationship is one of principal and independent contractor, not employer and employee, principal and agent or partnership, and neither party has the right or authority to act on behalf of or bind the other unless expressly authorised to do so by the other party in writing.

3. Project scope & timeframes

(a) The Services to be provided by P&L, the Fees payable for those Services and an approximate schedule and estimated time for completion of the project will be set out in the Proposal. Any variation to the scope of work set out in the Proposal and any additional Fees payable must be agreed in writing between the Client and P & L.

(b)The date the Client signs or accepts the Agreement (or any variation of the Agreement) is not the start date of the project. Depending on the nature of the project, P&L may require the Client to provide content, media files and any other assets required to complete the project. Any delays in providing these items will subsequently delay the project timeframe.

4. Client responsibilities

(a) The Client must make every effort to follow the instructions provided by P & L.

(b) The Client must provide P & L with all necessary information, instruction, authorisation and documentation reasonably requested by P & L at the times and in the format required to enable P & L to perform the Services. Delays in providing the information, instruction, authorisation and documentation may result in delays in delivery of the Services.

(c) Whilst P & L will make all reasonable efforts to provide the Services by the estimated date for completion, P & L do not accept liability for any costs incurred, loss or damage (including Consequential Loss) due to any failure to meet agreed deadlines.

5. First Invoice

(a) The Client must make every effort to follow the instructions provided by P & L.

6. Client content

(a) If there are any elements of text, graphics, photos, designs, trademarks or other artwork (Client Content) which need to be supplied by the Client in order for P & L to complete the Services, the Client must, at its cost, supply these at the time/s and in the format/s P & L require. The Client grants P & L a non‑exclusive, irrevocable, worldwide licence to use such Client Content for incorporation in the Services.

(b) The Client is responsible for ensuring and warrants that all Client Content supplied to P & L:

(i) does not breach the Broadcasting Services Act 1992; the Fair Trading Acts of the applicable States and Territories of Australia and the Competition and Consumer Act 2010 (CCA); or any other applicable law or industry code;

(ii) does not contain any misrepresentations; is not misleading or deceptive or likely to mislead or deceive or is otherwise unlawful;

(iii) does not breach any person’s intellectual property rights (including, but not limited to, any software, video, audio or digital files or any other material in which the Client does not own the copyright);

(iv) does not contain any offensive, immoral or unlawful material; and

(v) does not contain any viruses, trrojan horses, software program or routine that may compromise the security or operation of P & L’s computer systems.

(c) The Client indemnifies and agrees to keep P & L indemnified against all liability, loss or expense incurred by us arising directly or indirectly from any breach of copyright, breach of any other rights of any third party, or breach of any warranties given in connection with any Client Content supplied to P & L or that is supplied to P & L on the Client’s behalf.

7. Risk

(a) All drafts or proofs produced by P & L in performing the Services (including but not limited to web and print materials) must be approved or authorised by the Client in writing. P & L will not accept verbal instructions to amend or approve any proofs.

(b) The Client is responsible for proof reading and obtaining any legal advice or clearance of materials produced by P & L in performing the Services prior to publication.

(c) P & L shall not have any liability to the Client whatsoever for any errors, omissions, inaccurate or unlawful information not corrected by the Client prior to approving any proofs.

(d) All risk in any final goods produced by P & L in performing the Services shall be deemed to pass to the Client on delivery, however all such goods shall remain P & L’s property until all Fees have been paid in full.

8. Penn & Lytics Responsibilities

(a) P & L shall provide the Services as soon as reasonably practicable after the Commencement Date and following payment of the First Invoice in accordance with clause 4.

(b) In providing the Services, P & L shall:

(i) ensure that the Services are performed by personnel who have the appropriate experience, skill and qualifications;

(ii) subject to clauses 6 and 19(f), ensure that the Services do not violate or infringe the Intellectual Property rights of any third parties;

(iii) comply with all laws, rules, regulations, orders, licenses, permits and other contractual or governmental requirements, including those related to deceptive or unfair trade practices and privacy;

(iv) not knowingly violate any of the rules and regulations of any internet search engines; and

(v) not knowingly engage in any activity that would result in the Client or the Client Website being removed from an internet search engine’s index or be otherwise penalised by an internet search engine.

9. Fees and Payment Terms

(a) The Fees payable for the Services are as set out in the Proposal. Fees do not include any directory, press release or article submission fees. Should these fees be required for reputation (link building) purposes, P&L will obtain approval from the Client prior to submission, unless P&L chooses to pay such fees without being reimbursed.

(b) The Client agrees to pay the Fees to P & L in accordance with the Proposal and this Agreement.

(i) the First Invoice will be issued to the Client on acceptance of the Proposal;

(ii) an invoice (or invoices) for the balance of the Fees will be issued either, on completion of the Services by P & L, or at such other time or times specified in the Proposal.

(d) The Client acknowledges and agrees that P&L is not obliged to commence the Services until such time as the First Invoice is paid in full;

(e) All tax invoices:

(i) are due for payment 30 days after invoice date;

(ii) must be paid in full notwithstanding any counterclaim or set-off the Client may claim against P&L;

(iii) are in Australian dollars and exclude indirect taxes unless otherwise indicated;

(iv) that are not paid in full and on time will attract interest at the rate of 6% per annum on the outstanding payment, calculated daily from the due date for payment until the date of payment in full.

10. Non-exclusive arrangement

The Client acknowledges that this Agreement is not exclusive. The Client agrees that P&L may provide marketing and analytics services to other businesses similar to, or in competition with, the Client.

11. Intellectual property

(a) The Client acknowledges that the Client’s use of third party materials shall be conditional on P&L obtaining a licence, permission or consent from the relevant licensor on such terms as will entitle P&L to license such rights or give access to such third-party materials to the Client. P&L shall notify the Client of any usage restrictions in relation to such third-party materials and the Client agrees to comply with the same.

(b) No right, title or interest in any Intellectual Property of P&L or any third party shall be transferred to the Client under this Agreement. All Intellectual Property in the products and Services of P&L, shall belong to P&L, and the Client assigns all such rights to P&L.

(c) The Client agrees to abide by the terms of P & L’s license of any Software, and where the Software is provided by a third party, that third party’s license terms. If the Client does not agree to those terms, it shall not use the Software. If the terms of such license require payment by the Client, the Client shall make that payment in accordance with that license.

(d) Clients shall make no commercial use of P&L’s Intellectual Property without the prior written consent of P&L.

12. Termination or Cancellation of Agreement

A party (Non Defaulting Party) may immediately terminate this Agreement (without prejudice to any right to claim damages) at any time by giving notice to the other party (Defaulting Party) if:

(a) the Defaulting Party defaults in the performance of this Agreement in any respect and the Non Defaulting Party has issued a notice of default and the default alleged therein remains unrectified 14 days after service of the default notice;

(b) the Defaulting Party defaults in performance of any other contract between the parties and the default remains unrectified 14 days after service of a notice to rectify the default; or

(c) the Defaulting Party becomes insolvent, has a receiver, manager, administrator, liquidator or other controller appointed over it or its assets or it makes composition with its creditors.

13. Limitation of liability

a) To the extent allowed by law:

(i) P&L shall not be liable for any loss, liability, damage, claim or expense, express or implied, of whatsoever nature suffered by the Client as a result of, or which may be attributable to the products, services and training provided by P&L; and

(ii) in any event, any liability of P&L shall be reduced to the extent any part of any loss or damage suffered by the Client arising from any default on the part of P&L may be attributable to any negligent act of the Client, or to the breach by the Client of any of its obligations, acknowledgements, undertakings or warranties as referred to herein.

(b) If notwithstanding clause 13(a) it is determined that P&L is liable for any loss, liability, damage claim or expense suffered by the Client, P&L’s maximum combined liability for damages, cost and expenses, for all breaches (whether of express terms or terms implied by law) is limited to amount of fees paid by the Client to P&L under this agreement, and in all circumstances P&L has no liability for any Consequential Loss howsoever arising.

14. Confidentiality

((a) Confidential Information shall include any document marked “Confidential”, or any information which the recipient was informed before receipt is confidential or which it ought reasonably to expect the other party would regard as confidential. Confidential Information shall exclude information which at the time of receipt by the recipient is in the public domain; subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; is lawfully received by the recipient from a third party on an unrestricted basis and/ or is already known to the recipient before receipt hereunder.

(b) Each of the parties undertakes to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time without the prior written approval of the other party use, disclose, exploit, copy or modify any of the other party’s Confidential Information, except to approved sub-contractors and those of each of their employees and directors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.

(c) No party shall be in breach of this clause if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority.

15. Goods and Services Tax (GST)

(a) Unless otherwise stated, the Fees or any other amounts payable by the Client to P&L, is exclusive of GST.

(b) If a Supply under this agreement is subject to GST, the Client will pay to P&L an additional amount equal to the amount of the price multiplied by the prevailing GST rate.

(c) The additional amount under clause 15(b) is payable at the same time as the amount payable for the Supply is to be paid. However, the GST need not be paid until P&L provides a Tax Invoice to the Client.

(d) If the amount of GST payable in accordance with clause 15(c) is found to differ from the amount paid in relation to a Supply:

(i) If the amount of GST paid is more that is required under the GST Law P&L shall refund the excess amount to the Client;

(ii) If the amount of GST paid is less than is required under the GST Law, the Client shall pay P&L the difference.

16. Dispute Resolution

(a) If a dispute or difference arises between P&L and the Client, in respect or any fact, act, matter or thing arising out of or in any way connected with this Agreement and one party requires the dispute or difference to be resolved, then that party shall promptly give the other party a written notice giving details of the dispute.

(b) Within 14 days of a party receiving a notice referring to in clause 16(a) P&L and the Client and/or their delegates must meet and attempt to resolve the dispute in good faith, within a reasonable time (but in any event not more than 14 days) after the receipt of the notice.

(c) If, within 14 days of the meeting the dispute is still not resolved, then, either party may proceed to take such other action as it thinks fit.

17. Privacy

(a) P&L is committed to protecting the privacy of personal information and will ensure the privacy of all information that the Client provide to P&L (including information that may belong to third parties) in accordance with its Privacy Policy available.

(b) Where the Client provides personal information belonging to third parties to P & L in order for P&L to provide the Services, the Client warrants that it has obtained the consent or authority of those parties to provide that information to P&L.

(c) The Client agrees to indemnify P&L from and against any loss that P & L suffers as a result of the Client failing to obtain consent in accordance with clause 17(b) above.

18. General

(a) Law of Agreement: This Agreement is governed by the law in force in Western Australia and the Client submits to Courts of that jurisdiction.

(b) Force majeure: If P&L is restricted or prevented from performing any of its obligations under this Agreement due to act of God, industrial action, embargo, boycott, delay by freight company, flood, fire, war, civil unrest, adverse weather, decrees or orders or other Government intervention or any other cause whatsoever outside the reasonable control of P&L, then P&L may give written notice of any such cause to the Client and the time for performance of P&L’s obligations shall be extended by the period the cause continues.

(c) Notices: Any notice required or permitted to be given under this Agreement shall be in writing to hello@pennandlytics.com.au (or such other address as may be notified to the Client in writing from time to time).

Client: to the address specified in the Proposal (or such other address as may be notified to P & L in writing from time to time).

(d) A failure to exercise or delay in exercising any right, power or privilege by any party will not operate as a waiver of that right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of that right, power or privilege, or the exercise of any right, power or privilege. A purported modification, variation or amendment of these terms and conditions or any waiver of any rights of any party shall not have any force or effect unless and until the same is in writing, executed by the parties or, in the case of a waiver, is executed by the party whose rights are thereby waived.

(e) This Agreement, constitutes the entire agreement between P & L and the Client and supersedes all prior communications and agreements between the parties, including any prior written or verbal undertakings or statements. No agreements, representations or warranties between P & L and the Client other than those set our herein are binding between P & L and the Client. Where there are inconsistencies between written or oral communications and these terms and conditions, these terms and conditions shall prevail, unless specifically agreed in writing by both P & L and the Client.

(f) Any term of this Agreement which would be invalid at law shall be ineffective to the extent of its invalidity without affecting the remainder of the terms of the Agreement.

19. Live Program Terms

19.1 Program Overview

a) From time to time, P & L may offer educational programs, courses, or workshops delivered live online over Zoom (“Live Program”).

(b) Live Programs may vary in length and format. The specific duration, delivery schedule and access period to the online member portal (“Portal”) will be set out in the relevant Program description at the time of purchase.

(c) By registering for a Live Program, the Client is considered a Client under this Agreement and agrees to all terms set out herein and in this Section 19.

19.2 Payment and Registration

(a) Payment for the Live Program must be made in full at the time of registration via a third-party payment platform (“Payment Processor”). P & L does not invoice Clients for the Live Program.

(b) When purchasing the Live Program, Clients will be redirected to the Payment Processor’s platform. It is the Client’s responsibility to ensure that all payment and account information is current and correct.

(c) The use of the Payment Processor is subject to the Payment Processor’s own terms and conditions and privacy policy. Clients must review and accept these before completing payment.

(d) P & L makes no warranties or representations in respect of the Payment Processor or any third-party affiliate or service provider.

(e) Enrolment in the Live Program is not confirmed until full payment has been received by P & L

19.3 Attendance and Recordings

(a) The Client is responsible for attending the live Zoom sessions for which they are registered.

(b) Missed sessions will be recorded and made available via the Portal for the remainder of the access period (3 months from the final session of the Program).

(c) Live participation is encouraged; however, attendance is not mandatory, and no refunds or extensions will be provided due to missed sessions.

19.4 Cancellations and Changes

(a) P & L reserves the right to refuse enrolments, cancel, postpone or reschedule any Program or session at its sole discretion, including but not limited to where there are low enrolments or unforeseen circumstances.

(b) In the event a session is cancelled by P & L, the Client will be offered an alternative session date or the option to transfer to a future intake of the same Program.

19.5 Intellectual Property and Use of Program Materials

(a) All guides, worksheets, slides, audio-visual materials, session recordings, support tools, resources, and coaching content provided as part of the Live Program are the Intellectual Property of P & L or its licensors and are protected under applicable copyright and intellectual property laws.

(b) The Client is granted a limited, non-exclusive, non-transferable licence to access and use the Program materials for personal or internal business purposes only.

(c) The Client must not, without prior written permission from P & L, copy, reproduce, distribute, share, modify, adapt, sell, sub-license, or otherwise exploit the Program materials or content for commercial purposes.

(d) Only P&L or an authorised representative of P & L is permitted to train, facilitate, mentor or instruct others using P & L materials.

19.6 Portal Access

(a) Clients who enrol in the Live Program will receive access to the Portal for 3 months from the final scheduled session of the Program.

(b) P & L reserves the right to alter, remove, or update Portal content and access features at its discretion during the access period.

(c) The Client is responsible for securing their login credentials and must not share their access details with any other person.

19.7 General Acknowledgements

(a) All Clients enrolled in the Live Program are considered Clients for the purposes of this Agreement.

(b) P & L reserves the right to vary the content, mentors, guest speakers, delivery method or schedule of the Live Program at its sole discretion.