Terms & Conditions

1. AGREEMENT TERMS & ACCEPTANCE
   1. These Terms & Conditions are applicable to any Goods or Services provided by 3BY2.
   2. The agreement between 3BY2 and the Customer in respect of the Goods or Services consists of:
      1. any Scope of Works, Proposal or Roadmap issued by 3BY2 and accepted by the Customer, including any Variation;
      2. these Terms & Conditions;
      3. any additional documents, annexures or schedules expressly agreed in writing by 3BY2,

      (together, the “Agreement”).

   3. These Terms and Conditions:
      1. apply to all Goods and Services provided by 3BY2;
      2. may only be varied if agreed in writing by a director of 3BY2; and
      3. prevail over any terms issued by the Customer, including those contained in any purchase order or other document provided to 3BY2 by the Customer, unless 3BY2 otherwise agrees in writing.
   4. The Customer may accept the Agreement either by:
      1. signing or issuing any acceptance of a Scope of Works or Proposal, including raising a purchase order; or
      2. conduct, such as instructing 3BY2 to proceed with an order, receiving Goods or Services, or causing 3BY2 to commence Services at the request, or with the consent, of the Customer.
   5. Any Variation to the Goods or Services must be agreed in accordance with the Agreement and may result in adjustments to Fees, estimated timeframes and scope.
2. PROVISION OF GOODS AND SERVICES
   1. On acceptance of the Agreement, 3BY2 shall provide the Goods or Services to the Customer in accordance with the Agreement.
   2. 3BY2 may determine the method of providing the Goods or Services in its sole discretion.
   3. When providing the Goods or Services, 3BY2 shall exercise that degree of care and skill as may reasonably be expected in accordance with Good Industry Practice and all applicable legislation.
   4. 3BY2 agrees to:
      1. keep adequate records of work performed under the Agreement; and
      2. provide to the Customer regular work progress and update reports in accordance with the Agreement.
   5. 3BY2 will only provide the Goods or Services to the Customer named in the Agreement and will not regard any other entity as its client.
3. CUSTOMER RESPONSIBILITIES
   1. The Customer is responsible for providing complete and accurate information, content and instructions to 3BY2 as required for the provision of Goods or Services under the Agreement, and 3BY2 is entitled to rely on all information provided by the Customer without independent verification.
   2. The Customer must provide 3BY2 with all assistance reasonably required to allow for the provision of Goods or Services in accordance with the Agreement, including timely access to key stakeholders in the Customer’s business.
   3. The Customer must allow 3BY2 to access the Supply Address and any of the Customer’s IT systems as set out in the Agreement when reasonably required, subject to compliance by 3BY2 with the Customer’s reasonable site and security requirements.
   4. The Customer must obtain and maintain, at its own cost, all authorisations, licences, approvals, permits or consents necessary for the purchase or use of the Goods or Services by the Customer.
   5. The Customer acknowledges and agrees that any failure to comply with its responsibilities may result in 3BY2 necessarily suspending or ceasing to provide the Goods and Services under the Agreement and recovering any reasonable costs incurred or outstanding as at that time.
   6. The Customer shall provide acceptance and sign-off of Goods or Services provided where required and in accordance with the Agreement.
4. WEBSITE DESIGN AND DEVELOPMENT SERVICES
   1. 3BY2 will only develop and implement websites for devices and browsers as stated in the Agreement. 3BY2 gives no warranty that any website will work on any other browsers, hardware or software.
   2. 3BY2 will develop and implement websites at the optimal screen resolution as stated in the Agreement. 3BY2 gives no warranty that other screen resolutions will present the website in an optimal manner.
   3. Customer content: The Customer acknowledges and agrees that it is required to provide website content to 3BY2 within a reasonable timeframe to allow 3BY2 to perform its obligations under the Agreement. If the Customer fails to do so, 3BY2 may immediately render a tax invoice to the Customer for all work completed under the Agreement up to the date of the invoice.
   4. The Customer acknowledges and agrees that if any content supplied to 3BY2 needs to be amended, corrected or updated, as determined by 3BY2 acting reasonably, then 3BY2 is entitled to charge for those additional works at its usual fees separate and in addition to the Fees under the Agreement.
   5. Third-party hosting provider: Where website hosting services are through a third-party hosting provider, the terms and conditions of that third-party hosting provider will apply separately and in addition to these Terms and Conditions.
   6. The Customer acknowledges and agrees that if the website is hosted with a third-party and not with 3BY2, the website will be packaged up by 3BY2 in the following manner:
      1. connect to the site in question’s FTP account;
      2. copy all files, excluding DB_NAME, DB_USER and DB_PASSWORD from wp-config.php (the root);
      3. create a zip file of all files, including database.sql file; and
      4. send file via file transfer provider to the Customer advising on the optimal software version/php in accordance with the file migration.
   7. Following the website packaging and handover of files, the Customer agrees that 3BY2 is no longer responsible or liable for any website remediation and all work requests will be charged on time and materials.
5. IMPLEMENTATION, INSTALLATION AND CONFIGURATION SERVICES

   The Customer acknowledges and agrees that they will be responsible for:

   1. co-ordinating the provision of new physical telecommunications and carrier services, or the re-configuration of existing physical telecommunications and carrier services (as the case may be), which will be used to provide access to and use of the Goods or Services;
   2. co-ordinating all Customer-engaged third-party suppliers, including ensuring compliance of the third parties with the Agreement;
   3. providing all Customer configuration data in agreed formats at the times agreed between 3BY2 and the Customer; and
   4. ensuring that remote access by 3BY2 to the Customer’s IT systems, including domain name servers and controllers, is available at the time of implementation, installation, configuration and programming works as reasonably required by 3BY2.
6. MANAGED MARKETING SERVICES
   1. Where the Customer has engaged 3BY2 to undertake Managed Marketing Services, 3BY2 will issue the Customer with a Roadmap.
   2. The Customer may terminate the Managed Marketing Services for convenience in accordance with the Terms and Conditions of the Agreement.
7. ACHIEVEMENT OF MILESTONES AND ACCEPTANCE TESTING

   Estimated Dates

   1. Any milestone, supply, delivery or completion dates provided for in the Agreement are estimates only, and 3BY2 will use reasonable efforts to notify the Customer of any anticipated or actual delay.
   2. The Customer acknowledges that the failure to comply with its obligations under the Agreement may cause delays and prevent 3BY2 from meeting any estimated dates, and indemnifies 3BY2 for any Loss as a result.
   3. 3BY2 will not be liable for any Claims in connection with any delay or failure to meet any estimated dates except where that delay or failure has caused Loss (save and except for any consequential or special loss, loss of profit, loss of revenue, loss of opportunity, loss of production, loss of use, business interruption and/or economic loss) to the Customer as a result of gross negligence or wilful breach of the Agreement directly attributable to 3BY2.

   Acceptance Criteria and Tests

   The Customer must:

   1. assess the Goods or Services provided against any acceptance criteria stated in the Agreement, acting reasonably and in good faith;
   2. conduct acceptance tests promptly after a request from 3BY2 to do so, and no later than the date that is fourteen (14) days from the date of that request; and
   3. dedicate sufficient time and resources as reasonably required by 3BY2 to ensure acceptance tests are completed without delay.

   Acceptance or Non-Acceptance

   1. If the Customer deems the relevant acceptance criteria to be met, the Customer must promptly notify 3BY2 in accordance with the Agreement confirming that the Goods or Services are accepted.
   2. If the Customer, acting reasonably, considers the acceptance criteria has not been met, the Customer must notify 3BY2 as soon as reasonably practicable and identify the reasons why it considers the acceptance criteria has not been met with reference to the specific criteria.
   3. If the Customer fails to provide 3BY2 with notice under this clause within the date that is no later than two (2) weeks from and including the date that 3BY2 requests the Customer conduct acceptance tests, the Customer is deemed to have accepted that the Goods or Services meet the relevant acceptance criteria and are accepted for the purposes of the Agreement.

   Rectification

   1. If the Customer notifies 3BY2 that the acceptance criteria has not been met, 3BY2 shall take all steps reasonably necessary and at its own cost to rectify the issue in a timely manner and provide the Goods or Services to the Customer in accordance with the Agreement, provided that the failure is not attributable to any fault or delay by the Customer.
   2. Where the fault or delay is attributable to the Customer, 3BY2 is entitled to charge and recover additional fees reasonably and properly incurred to rectify the issue and provide the Goods or Services to the Customer in accordance with the Agreement.
8. MINIMUM SPECIFICATIONS AND SECURITY
   1. The Customer must ensure it complies with minimum hardware, software and other specifications as reasonably specified by 3BY2 for use with the Goods or Services in accordance with the Agreement.
   2. The Customer shall not perform changes to the Customer’s domain, assigned IP addresses, MS Exchange settings, database settings, tables and database environment, server hardware and software environment associated with the installation and use of the Goods or Services without the prior written agreement of 3BY2. Failure to comply with this requirement may require 3BY2 to re-configure the Goods or Services, and the time and materials incurred as a result must be paid by the Customer at 3BY2’s then applicable fees and rates.
   3. The Customer acknowledges that, unless expressly agreed in writing, administrative privileges are not granted to the Customer in respect of websites built by 3BY2. This is to ensure integrity of the websites and to minimise the risk of the website becoming non-functional.
   4. The Customer must:
      1. maintain adequate internal security measures and systems to prevent unauthorised or inappropriate use of the Goods or Services, including using up to date anti-virus software and firewalls; and
      2. ensure the security of usernames and passwords provided to by 3BY2 to the Customer.
9. PAYMENT TERMS
   1. 3BY2 will issue invoices at its discretion, usually on a monthly basis, when a milestone contemplated in the Agreement has been reached, or as stated in the Agreement.
   2. The Customer must pay all amounts invoiced as soon as practicable and in any event no later than seven (7) days from and including the date of invoice, unless a different payment term has been agreed and specified in the Agreement. Cash accounts must be paid upfront before any Goods or Services will be provided.
   3. Unless expressly stated otherwise, Fees stated in the Agreement do not cover:
      1. third-party costs including engagement and transfer to third-party hosting platforms, advertising spend, photography, printing, delivery costs and other disbursements;
      2. work performed outside the agreed scope of the Agreement including ad-hoc development requests and additional support hours;
      3. work required to be performed outside the hours of 8:30am and 5:00pm AWST on Business Days; or
      4. additional costs due to delays caused by the Customer, which 3BY2 is entitled to issue a tax invoice for at the then current rates of charges.
   4. If any tax invoice issued becomes overdue, 3BY2 may, without prejudice to any other rights:
      1. suspend the performance of any of its obligations under the Agreement until all amounts owing are paid in full.
      2. disable any websites built by 3BY2 under the Agreement and any other agreement if Fees are in arrears for more than sixty (60) days;
      3. charge compound interest on the overdue amount at a rate of two percent (2.00%) above the Reserve Bank of Australia cash rate, calculated daily from the due date until payment; and
      4. recover from the Customer all reasonable costs property incurred in connection with administrative management and recovery of the overdue account, including legal and collection costs.
   5. If the Customer disputes an invoice, it must notify 3BY2 in writing within five (5) Business Days of receipt of the invoice, identifying the basis of the dispute. Any undisputed portion of the invoice remains payable in accordance with this clause.
   6. The Customer irrevocably authorises 3BY2 and its Personnel, contractors and agents to enter any premises where the Goods are reasonably believed to be located, at any reasonable time and without notice, for the purpose of inspecting, identifying, recovering, removing and taking possession of the Goods. The Customer grants an irrevocable licence for that purpose and acknowledges that neither 3BY2 nor its Personnel, contractors or agents will be liable for trespass or any resulting claim arising from the lawful exercise of those rights. The Customer indemnifies 3BY2 against any Loss incurred in exercising those rights.
10. CREDIT
    1. Where 3BY2 agrees to provide the Goods or Services on credit, that credit is provided subject to 3BY2’s credit approval and trading terms as varied from time to time. The Customer is not entitled to receive credit, and 3BY2 may decline, reduce, suspend or withdraw credit at its sole discretion.
    2. The Customer must advise 3BY2 if its financial circumstances change, and shall provide additional references, documentation or information to 3BY2 where reasonable requested to do so in connection with any credit application or open facility.
11. WARRANTIES
    1. 3BY2 warrants that:
       1. Services: the Services will be performed with due care and skill, using suitably qualified personnel and in accordance with Good Industry Practice; and
       2. Goods: the Goods provided are fit for their usual and intended purpose and will comply with all applicable Laws.
    2. The warranty relating to Goods does not apply to defects or failures caused or contributed to by misuse, neglect, unauthorised modification, incorrect installation or operation, or use inconsistent with the supplied instructions by the Customer.
    3. 3BY2’s liability for breach of any warranty is, at its option, limited to:
       1. Services: re-performing the relevant Services, rectifying the defect, or providing a reasonable credit or refund for the affected Services; and
       2. Goods: repair or replacement of the defective Goods, or a refund of the price paid for the defective Goods.
    4. The Customer must notify 3BY2 in writing of any alleged breach of warranty within thirty (30) days of delivery of the Goods or completion of the Services.
    5. To the maximum extent permitted by Law, 3BY2 makes no representations, whether express or implied, and excludes all other warranties, in relation to the Goods or Services, except for those expressly stated in the Agreement. Nothing in the Agreement excludes, restricts or modifies any consumer guarantee or other right under the Australian Consumer Law that cannot be lawfully excluded, restricted or modified.
12. DELIVERY, RISK AND TITLE
    1. Where 3BY2 supplies physical Goods to the Customer, delivery is taken to occur and all risk in the Goods passes to the Customer at the earliest of the following:
       1. the date that the Customer or its Personnel signing a delivery docket or otherwise acknowledging receipt of the Goods;
       2. the date of the Goods being delivered to, or left at, the Supply Address in a reasonably secure manner; or
       3. where the Customer arranges collection, the date the Goods is made available to, or placed in the possession or control of, the Customer or its carrier, freight provider or agent.
    2. Title in all Goods does not pass to the Customer until 3BY2 has received payment in full of all amounts payable for the Goods and all other amounts owing by the Customer to 3BY2 under the Agreement of any other agreement.
    3. This clause creates a Security Interest for the purposes of the PPSA. The Customer consents to 3BY2 registering its interest in accordance with clause 16 of the Agreement.
13. INTELLECTUAL PROPERTY, OWNERSHIP & GRANT OF LICENCE
    1. Each Party retains ownership of its existing Intellectual Property and will not cause or allow to be caused anything that may amount to misuse, interference with or damage to the Intellectual Property.
    2. Unless expressly agreed otherwise in writing, all 3BY2 IP remains the property of 3BY2.
    3. The Customer may use 3BY2 IP solely for the purposes for which the Goods or Services are provided and must not use, reproduce, modify, create derivative works, combine, incorporate or disclose 3BY2 IP for any other purpose without the prior written consent of 3BY2, which 3BY2 may refuse at its sole discretion.
    4. The Customer may on-supply Goods displaying 3BY2 IP to third parties provided those Goods are by their nature intended to be distributed in such a manner, including corporate livery and marketing materials such as brochures, letterheads and branded outerwear.
    5. Licence: 3BY2 grants to the Customer a limited, non-exclusive, royalty-free, non-transferable, revocable licence to use 3BY2 IP provided for in the Agreement and in accordance with the Agreement, and which shall terminate immediately upon the following and without written notice to the Customer:
       1. the period of use stated in the Agreement comes to an end;
       2. the Customer fails to comply with its payment obligations;
       3. the Customer breaches the Agreement;
       4. 3BY2 suspends the Agreement in accordance with the Agreement; or
       5. on termination of the Agreement.
    6. Transfer of Ownership: Where the Agreement expressly states that any elements of the 3BY2 IP created as part of providing the Goods or Services will become the Customers Intellectual Property upon completion, then 3BY2, on written request from the Customer, will do all things necessary to transfer the ownership to the Customer at no charge to the Customer, provided all obligations under the Agreement by the Customer have been complied with.
14. INSURANCE

    Each Party shall hold and maintain all insurances necessary to enable each Party to perform its obligations and undertakings under the Agreement, and any other insurances required by Law.

15. INDEMNITY AND LIMITATION OF LIABILITY
    1. The Customer indemnifies 3BY2 and its Personnel against any Claim and/or Loss arising out of or in connection with:
       1. the Customers breach of this Agreement or any applicable Law;
       2. the Customers use of the Goods or Services;
       3. third-party use of the Goods or Services provided by 3BY2 to the Customer; and/or
       4. any negligent, unlawful, reckless or wilful act or omission of the Customer or its Personnel, except to the extend caused by wilful negligence or misconduct of 3BY2.
    2. To the maximum extent permitted by Law, 3BY2 will not be liable to the Customer for any indirect, special or consequential loss, including loss of profit, revenue, contracts, opportunity, goodwill, anticipated savings, production, business interruption or data, whether arising under an indemnity, contract, tort (including negligence), statute or otherwise.
    3. To the maximum extent permitted by Law, the aggregate liability of 3BY2 arising out of or in connection with this Agreement, including under contract, tort (including negligence), statute or otherwise, is limited to the Fees paid or payable by the Customer for the Goods or Services giving rise to the Claim.
16. PPSA
    1. The Customer charges in favour of 3BY2 all Goods provided by 3BY2 and their identifiable proceeds to secure the payment obligations owed by the Customer to 3BY2 under the Agreement.
    2. The Customer agrees that these Terms and Conditions constitute a security agreement under the PPSA and create a Security Interest in:
       1. all present and after-acquired Goods supplied by 3BY2; and
       2. the retention of title arrangement described in clause 12 constitutes a purchase money security interest (or PMSI) in favour of 3BY2 in respect of all Goods and any identifiable proceeds of sale of the Goods to secure the Fees of the Goods under the PPSA. The Customer must not do or permit to be done anything that may result in the PMSI ranking in priority behind any other security interest in respect of the Goods.
    3. The Customer must not grant to any other party a Security Interest in Goods that have not been paid for in full, or allow any registration of any type to be made on the Personal Property Securities Register against or in respect of such Goods (other than by 3BY2).
    4. The Customer consents to 3BY2 making and maintaining a registration on the Personal Property Securities Register in any manner 3BY2 considers appropriate in relation to any Security Interest granted in or arising under the Agreement.
    5. To the extent permitted by the PPSA, the Customer waives its right to receive notice of any registration events or verification statements to which sections 144 or 157 of the PPSA applies.
    6. To the extent permitted by section 115(1) of the PPSA, the Customer and 3BY2 agree that sections 95, 96, 126, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply to the Agreement.
    7. The Customer must promptly provide all information and execute all documents required by 3BY2 for registration, maintenance, perfection or enforcement of a Security Interest. If the Customer fails within a reasonable time to take any such steps, then the Customer irrevocably appoints each of 3BY2 and its directors individually, as its attorney to take those steps on the Customer’s behalf.
17. ASSIGNMENT AND SUBCONTRACTING
    1. 3BY2 may subcontract the performance of any part of the Agreement to suitably qualified third parties but remains responsible for the performance of its obligations under the Agreement.
    2. 3BY2 may assign, novate or transfer its rights under the Agreement to a related body corporate or purchaser of its business without the Customer’s consent.
    3. The Customer must not assign, novate, transfer, subcontract or otherwise deal with any of its rights or obligations under the Agreement without the prior written consent of 3BY2 (which may be given subject to conditions).
18. TERMINATION
    1. The Customer may terminate the Agreement for convenience, in whole or in part, by giving written notice in accordance with the notice period specified in the Proposal, or where no notice period is specified in the Proposal not less than thirty (30) days’ written notice, to 3BY2.
    2. 3BY2 may terminate the Agreement for convenience, in whole or in part, by giving not less than thirty (30) days’ written notice to the Customer.
    3. If the Customer terminates for convenience the Customer must pay 3BY2 for all Goods and Services performed up to and including the effective date of termination and any reasonable costs properly incurred as a result of the termination, including work in progress, demobilisation and any non-cancellable commitments entered into in reliance on the Agreement.
    4. If 3BY2 terminates for convenience, it must refund any prepaid amounts for Goods or Services not supplied, less any amounts properly payable under the Agreement.
    5. Either Party may terminate the Agreement immediately by written notice if the other Party:
       1. commits a breach of the Agreement which is not remedied within a reasonable time (as specified) after written notice; or
       2. becomes insolvent, enters administration, liquidation or any analogous external administration, or is unable to pay its debts as they fall due.
    6. 3BY2 may terminate the Agreement immediately by written notice if the Customer:
       1. fails to pay any amount due under the Agreement and that failure continues for five (5) Business Days after written notice; or
       2. repeatedly suspends, delays or prevents performance of the Goods or Services.
    7. 3BY2 may suspend the supply of Goods or performance of Services at any time prior to termination where permitted under the Agreement.
    8. The Customer acknowledges and agrees that 3BY2 Technology will not be available for the Customer’s use on termination of the Agreement. 3BY2 will be entitled to remove all 3BY2 Technology from the Customer’s website, domain and IT systems and to clear all caches. Unless expressly authorised in writing by a director of 3BY2, the Customer is not entitled to retain a copy of any 3BY2 Technology.
    9. Termination or suspension, including for convenience, does not affect any accrued rights, including the Customer’s obligation to pay all amounts owing for Goods supplied or Services performed up to the date of termination or suspension.
19. CONFIDENTIALITY
    1. Each Party must keep confidential any information disclosed by the other Party in connection with the Agreement that is confidential by its nature or designated as confidential, and must not disclose that information to any third-party except as required to perform its obligations under the Agreement or as required by law.
    2. Each Party must:
       1. take reasonable steps to protect confidential information from unauthorised access, disclosure, or misuse;
       2. immediately notify the other Party of any suspected or actual unauthorised access, use, copying, or disclosure of confidential information; and
       3. if requested by the disclosing Party, the receiving Party must return or destroy all copies of confidential information in its possession or control, except where retention is required for compliance with legal or regulatory obligations.
    3. This clause survives termination or expiry of the Agreement.
20. DISPUTE RESOLUTION
    1. If a dispute arises out of or in connection with the Agreement, either Party may give written notice to the other setting out the nature of the dispute.
    2. The parties must use reasonable efforts to resolve the dispute promptly through good faith discussions between senior representatives.
    3. If the dispute is not resolved within fourteen (14) days of the notice, either Party may commence legal proceedings. However, the Parties shall endeavour to settle any dispute, claims or actions arising out of or relating to the Agreement, including with regard to its existence, validity or termination, by mediation administered by a jointly appointed mediator, failing which to be appointed by the President of the Law Society of Western Australia.
    4. Nothing in this clause prevents a Party from seeking urgent interlocutory or injunctive relief.
    5. This clause will remain operative after the completion of the Agreement, notwithstanding the termination of the Agreement.
21. FORCE MAJEURE
    1. Neither Party is liable for any delay or failure to perform its obligations under the Agreement (other than payment obligations) to the extent caused by a Force Majeure Event.
    2. If a Force Majeure Event occurs, the affected Party must notify the other Party as soon as reasonably practicable and use reasonable efforts to mitigate the effects of the Force Majeure Event.
    3. Any delay caused by a Force Majeure Event may give rise to an extension of time and, where applicable, a Variation.
    4. If a Force Majeure Event continues for more than sixty (60) days, either Party may terminate the affected part of the Agreement by written notice, without liability, subject to payment of all amounts owing for Goods supplied and Services performed up to the date of termination.
22. GENERAL
    1. Notice: Any notice or communication under the Agreement must be in writing to the last known address of the other and given using one of the methods below:

       Method of Notice	Timing of Receipt
       Hand delivery	When the notice is delivered to the recipient’s address.
       Post (registered)	Three (3) Business Days after the notice is posted.
       Post (ordinary)	Four (4) Business Days after the notice is posted.
       Email	On the day the email is sent, provided the sender’s system does not receive a delivery failure notification.

       If a notice is received after 3:00pm on a Business Day, or on a day that is not a Business Day, it is taken to be received at 9:00am on the next Business Day.

    2. Entire Agreement: The Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior negotiations, representations or understandings, except as expressly incorporated under clause 1.
    3. Waiver: A waiver of a right under the Agreement is only effective if given in writing. A failure or delay in exercising a right does not operate as a waiver of that right or any other right.
    4. Privacy Policy: 3BY2 may collect “personal information” (as defined in the Privacy Act) from the Customer in relation to the Agreement. The Customer may obtain a copy of 3BY2’s privacy policy from its website or by written request.
    5. Trustee: If a Party enters into the Agreement as trustee of a trust, that Party enters into the Agreement in its capacity as trustee and warrants that it has full power to enter into the Agreement and perform its obligations.
    6. Relationship: Nothing in the Agreement constitutes the relationship of employer and employee between 3BY2 and the Customer and it is the express intention of the Parties that any such relationships are denied.
    7. Variation: The Agreement may only be amended, supplemented, discharged or abandoned in writing and signed by the Parties.
    8. Non-Exclusive: The Agreement is not an exclusive service or supply agreement.
    9. Illegality: If any provision of the Agreement is held to be invalid, illegal or unenforceable, that provision is severed and the remaining provisions remain in full force and effect.
    10. Counterparts: The Agreement may be executed in any number of counterparts. All counterparts together constitute one instrument.
    11. Jurisdiction: The Agreement is governed by the laws of Western Australia. Each Party submits to the non-exclusive jurisdiction of the courts of Western Australia.
23. INTERPRETATION

    In the Agreement, unless the context otherwise requires:

    1. the singular includes the plural and vice versa;
    2. where two or more entities are named as the Customer, then the obligations on each bind them jointly and severally;
    3. “include” and derivatives thereof are not words of limitation;
    4. a reference to a person includes that person’s legal personal representatives, successors and assigns;
    5. if the date by which any payment must be made or notice given is not a Business Day, it must be made or given on or by the next Business Day;
    6. where time is calculated by reference to a day or event, that day or the day of that event is excluded; and
    7. a notice or other communication means a notice or communication in writing in the English language, sent to the email address, fax number or postal address of the recipient Party.
24. DEFINITIONS

    In the Agreement, unless the contrary intention appears, the following expressions shall have the following meanings:

    3BY2

    means 3BY2 Pty Ltd ACN 653 317 009.

    3BY2 IP

    means all present and future intellectual property rights, including but not limited to 3BY2 Technology, 3BY2 Templates, copyright, designs, trademarks, artwork, logos, know-how and confidential information, whether registered or unregistered.

    3BY2 Technology

    means 3BY2’s proprietary software and marketing technology, tools, algorithms, methods and processes including: all automation tools; raw files relating to design aspects; rules, search engine optimisation rules, keyword strategies and related data; WordPress, Google Ads, Google My Business and Google Analytics setup, configuration and management tools and methods; social media setup, configuration and management methods; content management system setup, configuration and management methods data optimisation methods; style guides; testing and quality and assurance methods and processes; webhooks; website speed optimisation methods, configuration rules, files and methodologies, software code, source code, object code, binary code, executable code; middleware, modules, components, libraries, programs, databases; accompanying or associated media, business rules, algorithms, configurations, backups, updates, service packs, patches and hot fixes; and related files and documentation, in any media or format, and including all associated or embodied intellectual property rights.

    3BY2 Templates

    means any website or document template developed by 3BY2 with broad visual language specifically for the Customer as part of providing the Goods or Services.

    Agreement

    has the meaning given in clause 1(b).

    AWST

    means Australian Western Standard Time.

    Business Day

    means a day on which banks are open for trading in Western Australia, excluding Saturdays, Sundays, and public holidays.

    Claim

    means any claim, action, demand, suit, proceeding, cause of action, cost (including legal costs on a solicitor and own client basis), damages, Loss and liability whatsoever, including claims by a third-party.

    Customer

    means the company, individual, partnership, trust or entity in any capacity that enters in to the Agreement with 3BY2.

    Fees

    means the fees, charges, disbursements and amounts incurred under the Agreement and stated in the tax invoice(s) issued by 3BY2 in respect of Goods or Services provided.

    Force Majeure Event

    means any event beyond a Party’s reasonable control, including acts of god, fire, flood, cyclone, storm, explosion, epidemic or pandemic, industrial action, labour shortages, failure of utilities or transport networks, acts or omissions of government or regulatory authorities, war, terrorism, civil unrest, or shortages of materials or services not reasonably foreseeable at the time of Agreement.

    Good Industry Practice

    means the exercise of that degree of care, skill and diligence which would reasonably and ordinarily be expected from a skilled and experienced provider of goods and services that are of the same or similar nature to the Goods and/or Services.

    Goods

    means the goods, materials and items that 3BY2 supplies to the Customer, including items and materials in physical format and items and materials in digital or electronic format.

    GST

    means goods and services tax levied pursuant to the GST Act and the expressions “supply” and “tax invoice” have the meanings given in the GST Act.

    GST Act

    means A New Tax System (Goods & Services Tax) Act 1999 (Cth), as amended from time to time.

    Intellectual Property

    means all present and future intellectual property rights, including but not limited to copyright, designs, trademarks, artwork, logos, know-how and confidential information, whether registered or unregistered.

    Law

    means Commonwealth, State, Territory, and local government legislation including regulations and by-laws.

    Loss

    means any loss, damages, liability, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) on a full indemnity basis, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, including any consequential or special loss, loss of profit, loss of revenue, loss of opportunity, loss of production, loss of use, business interruption and economic loss.

    Managed Marketing Services

    means marketing and digital services managed by 3BY2 for a defined period of time as referred to in the Agreement.

    Party or Parties

    means 3BY2 or the Customer and each and both of them as the context requires.

    Personnel

    means officers, employees, agents and contractors of each and both Parties as the context requires.

    PPSA

    means the Personal Property Securities Act 2009 (Cth), and all regulations pursuant to it.

    Privacy Act

    means the Privacy Act 1988 (Cth), as amended from time to time.

    Roadmap

    means a document provided by 3BY2 to the Customer setting out 3BY2’s proposal for the provision of managed marketing services to the Customer and forming part of the Agreement.

    Scope of Works or Proposal

    means the scope of works issued by 3BY2 in relation to specific Goods or Services to be supplied by 3BY2, including any project variations incorporated in the Scope of Works or Proposal and forming part of the Agreement.

    Secured Property

    means any goods or property over which a Security Interest is created or arises as set out in this Agreement.

    Security Interest

    has the meaning given in the PPSA.

    Services

    means services that 3BY2 supplies to the Customer, including consulting, training, implementation, deployment, data manipulation and other professional services.

    Supply Address

    means the location at or to which the Goods or Services are to be supplied by 3BY2 as specified in the Agreement.

    Terms and Conditions

    means the terms and conditions contained in this document and forming part of the Agreement.

    Variation

    means any change to the scope, timing, method, quantity or nature of Goods or Services, including changes arising from client instructions, omissions, additional requirements or latent conditions.