Master Service Terms and Conditions
Version 1.0. : Date of Publish: 24 June 2023
These Master Service Terms and Conditions (Master Service Terms and Conditions), together with each quote, order, statement of work, project agreement, media buying authority, or other purchasing document, however described (Statement of Work, S.O.W, Purchasing Document, Media Plan, Emails) entered into by the person, entity, trust or other organisation set out in the applicable Purchasing Document (Client/You/Your), set out the terms and conditions on which Transcending Monkeys (ABN 94 654 534 906) of Level 1, 457 Elizabeth Street, Surry Hills, NSW 2010 (Transcending Monkeys/TM/Our/Us/We) may provide services to You (together, the Services).
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1. Your Services
(a) Your Purchasing Document(s) sets out:
(i) the Services You have purchased;
(ii) the fees You will be charged for those Services (Fees); and
(iii) when We will charge You for the Fees (including any ongoing payments).
(b) You will be taken to have accepted these Master Service Terms and Conditions if You or Your Personnel confirms Your Purchasing Document or otherwise indicates You accept these Master Service Terms and Conditions, instruct us to provide the Services set out in a Purchasing Document and/or pay for any Services provided by Us after receiving or becoming aware of these Master Service Terms and Conditions.
(c) If there is any inconsistency between these Master Service Terms and Conditions and a Purchasing Document, the relevant Purchasing Document will prevail to the extent of the inconsistency.
2. Term and renewal
(a) These Master Service Terms and Conditions are legally binding on and from the date that You validly sign or otherwise submit a Purchasing Document, or communications and continue until You have no active Purchasing Documents with Terms and Conditions (subject to the survival provisions set out in these Master Services Terms and Conditions).
(b) Each Service will have the term set out in, and where applicable, will renew in accordance with, the relevant Purchasing Document.
3. Third-Party Services
(a) You acknowledge that the Services may incorporate certain third-party services, software and/or third party technology (Third Party Services) and that Your rights and obligations with respect thereto are subject to any terms or agreements (which may include licences) that might accompany such Third Party Services (Third Party Agreement(s)) to the extent we give you notice of such Third Party Agreements.
(b) You further acknowledge and agree that the provision of the Services by Transcending Monkeys may be subject to You entering into a relevant Third Party Agreement(s) or Transcending Monkeys entering into such Third Party Agreement(s) on your behalf. Where this applies, You must execute all relevant Third Party Agreement(s) and any reasonable additional documents that a vendor of Third Party Services (Vendor) may require to enable Transcending Monkeys to deliver the Third Party Services to You. Alternatively, with Your prior written consent, We may enter into contracts with Vendors as an agent for a disclosed principal. You assume all liability for payment of amounts owing to such Vendors.
(c) To the maximum extent permitted by law, Transcending Monkeys has no liability to You, makes no warranty and provides no indemnity with respect to any such Third Party Services, except to the extent that a Vendor of any Third Party Services expressly provides a warranty or indemnity which may be extended to You.
(d) The Third Party Services are provided by the relevant Vendor. Although Transcending Monkeys may assist with front-line support, Transcending Monkeys will have no liability with respect thereto and You must liaise directly with the Vendor, except where we have otherwise agreed in writing.
4. Additional Services
Transcending Monkeys is entitled to payment of an additional charge in relation to any services or ad hoc support requested by You or any services reasonably required to be provided by Transcending Monkeys in addition to the services and support described in Your Purchasing Documents (Additional Services). Additional Services will be provided on a time and materials basis and charged at Our then current standard hourly rates.
5. Media Buying Authority
(a) If We provide Paid Media Management Services to You, We may (in our sole discretion and subject to satisfactory findings of customary credit checks) agree to purchase media on Your behalf. Where this applies We may require you to execute a media buying authority (Media Buying Authority), under which We have the authority to purchase media on Your behalf up to the amounts authorised in the Media Buying Authority. We may revoke a Media Buying Authority or Our decision to purchase media on Your behalf at any time by providing You with written notice.
(b) Where We have purchased media on Your behalf within the authority provided to Us under a Media Buying Authority, You must pay or reimburse Transcending Monkeys for the amounts incurred by Us. These amounts will be invoiced in arrears to You every month and are payable in accordance with clause 9.
(c) If We do not agree to purchase media on your behalf in accordance with a Media Buying Authority, You may be required to pay for any media purchases independently.
6. Your rights and obligations
You must:
(a) provide Transcending Monkeys with such information, directions, guidance and assistance as Transcending Monkeys and its Personnel may reasonably require and request in order to provide services under these Master Service Terms and Conditions;
(b) advise Transcending Monkeys promptly if You become (or should have reasonably become) aware of errors or changes in any information, directions or guidance provided by You to Transcending Monkeys; and
(c) pay all applicable Fees, expenses and other payments as and when they fall due.
7. Reliance on your instructions
You acknowledge and agree that Transcending Monkeys may act on specific instructions given by You without investigating whether the act will comply with applicable law (and You release Transcending Monkeys from all liability in relation to such compliance). However, Transcending Monkeys is not obliged to comply with any direction which Transcending Monkeys reasonably considers may cause a breach of applicable law.
8. Transcending Monkeys’s obligations
Transcending Monkeys will, in consideration of the payment of the Fees:
(a) provide the Services in accordance with the relevant Purchasing Document and the Master Service Terms and Conditions, and in a professional and competent manner;
(b) use commercially reasonable endeavours to comply with the Service Levels in respect of the Social Media Community Management Services;
(c) serve as a resource to You and, unless otherwise agreed in writing, will not exercise any decision-making authority or control with respect to Your business or affairs; and
(d) take reasonable steps to maintain all licences, accreditations, certifications and approvals necessary for Transcending Monkeys to provide the Services.
Nothing in these Master Service Terms and Conditions prevents Us from providing the Services, or services similar to the Services, to other customers.
9. Payment
(a) Fees: You agree to pay the Fees toTranscending Monkeys in the amounts and at the times set out in the Purchasing Document or as otherwise agreed in writing.
(b) Expenses: You agree to pay or reimburse Transcending Monkeys for all reasonable out-of-pocket expenses incurred in the course of providing the Services. Out-of-pocket expenses will be invoiced monthly in arrears and prior authorisation from You will be sought before incurring these expenses.
(c) Payment Terms: Our Purchasing Documents set out Our payment terms for specific Services. Where a Purchasing Document does not specify payment terms, Our payment terms are seven (7) days from the date of invoice. For Media purchased by us on behalf of you where not directly incurred by you independently ( e.g programmatic media channels, direct media buys with publishers and or networks etc) the price of that media quoted to you will be on a prepaid basis unless agreed otherwise.
(d) No refunds: Unless We materially breach these Master Service Terms and Conditions or a Purchasing Document, You will not be entitled to a refund for any reason.
(e) Billing process: We will issue You invoices for any Fees on a monthly basis, normally within ten (10) Business Days of the first calendar day of each month. All Services will be billed in advance for that month. We may also invoice at any point of the month for services that may be out of scope or require prepayment.
(f) Billing disputes: If You dispute the whole or any portion of the amount claimed in an invoice issued by Transcending Monkeys, You must pay the portion of the amount stated in the invoice which is not in dispute by the stated due date and must notify Transcending Monkeys in writing (within five (5) Business Days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved or finally determined that some or all of the amount in dispute ought to have properly been made paid at the time of the first invoice, then We reserve the right to charge the amount finally resolved together with 7% per annum interest (calculated and accrued daily, compounded monthly) on that amount on and from the date that payment was originally due.
(g) Late payments: Transcending Monkeys reserves the right to charge interest on late payments at an amount equal to 7% per annum interest (calculated and accrued daily, compounded monthly) on that unpaid amount on and from the date that payment was originally due.
(h) GST: Unless otherwise indicated, amounts stated in a Purchasing Document do not include goods and services tax (GST) as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). In relation to any GST payable for a taxable supply by Transcending Monkeys, You must pay the GST subject to Transcending Monkeys providing You with a valid tax invoice. If either party is entitled under these Master Service Terms and Conditions to be reimbursed or indemnified by any other party for a cost or expense incurred in connection with these Master Service Terms and Conditions (including under a relevant Purchasing Document), the reimbursement or indemnity payment will be reduced by any input tax credit that may be claimed by the party entitled to be reimbursed or indemnified for that cost or expense, or by its representative member.
(i) Payment methods: We currently accept payment for our Services by either electronic funds transfer or credit card. We reserve the right to change Our accepted payment methods at any time with written notice to You.
(j) Card surcharges: We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
10. Confidentiality
(a) Each party will protect each other’s Confidential Information from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.
(b) Except as expressly permitted by these Master Service Terms and Conditions, each party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Master Service Terms and Conditions or a Purchasing Document and shall disclose such Confidential Information:
(i) solely to the Personnel and professional advisers (including auditors), financiers and bona fide prospective investors or purchasers who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information;
(ii) as necessary to comply with an order or subpoena of any governmental or administrative agency or court of competent jurisdiction;
(iii) as necessary to comply with any applicable law or regulation, including the requirements of an applicable securities exchange; or
(iv) to a party’s related bodies corporate (as defined in the Corporations Act).
(c) This clause 10 is deemed to supersede any non-disclosure agreement by and between the parties and such agreement shall have no further force or effect on and from the date that You agree to or are deemed to accept these Master Service Terms and Conditions.
11. Privacy and data
(a) Any personal information You disclose to Us under these Master Service Terms and Conditions, or a Purchasing Document will be handled in accordance with the Privacy Act 1988 (Cth) (Privacy Act) and Our Privacy Policy.
(b) Each party must comply with the requirements of the Privacy Act in relation to any personal information.
(c) You must only disclose to Us personal information where You are permitted to do so by law.
(d) You warrant that You have obtained all necessary consents from relevant individuals in accordance with applicable laws in order to provide Client Data to Transcending Monkeys and process Client Data in accordance or in connection with these Master Service Terms and Conditions.
(e) You grant Us a worldwide perpetual, sub-licensable, royalty free right and licence to compile, collect, copy, modify, publish and use anonymous and/or aggregate data generated from or based on Client Data and/or Your use of the Services, for analytical and other commercial and/or business purposes.
12. Intellectual property
(a) All pre-existing Intellectual Property Rights which are already owned by either party or are developed by that party independently from these Master Service Terms and Conditions or a Purchasing Document will at all times remain owned by that party exclusively.
(b) Unless otherwise agreed by the parties, all Intellectual Property Rights created by Transcending Monkeys in the course of providing the Services, or otherwise performing its obligations to You will vest in Transcending Monkeys immediately upon creation. If requested by Transcending Monkeys, You agree to execute a customary assignment deed to perfect the vesting of the Intellectual Property Rights in Transcending Monkeys.
(c) Without limiting the generality of paragraphs (a) and (b) above, any “boilerplate”, including but not limited to “boilerplate” texts, statements, documents, codes, digital media account structures, content or other materials, that is developed, created or used by Transcending Monkeys in the course of providing the Services, or otherwise in performing its obligations to You will, as between the parties, at all times remain owned by Transcending Monkeys exclusively.
(d) In addition to any other remedies available to Transcending Monkeys under these Master Service Terms and Conditions or otherwise, any breach of this clause 12 by You will entitle Transcending Monkeys to any available equitable remedy against the Client.
(e) You must not do anything that is, or is likely to be, an infringement of, or otherwise inconsistent with, any moral rights in any deliverables created by Transcending Monkeys under or in connection with these Master Service Terms and Conditions.
(f) You grant to Transcending Monkeys, and will procure that third parties grant to Transcending Monkeys, a non-exclusive, royalty free licence to use Intellectual Property Rights which are owned by You or a third party, if and to the extent that such use is necessary or convenient for Transcending Monkeys to provide Services or otherwise to perform its obligations under these Master Service Terms and Conditions or a Purchasing Document. The Client warrants that it and each third party is and will be entitled to grant such licences to Transcending Monkeys.
(g) For project materials that We hold in connection with Web Services, We are only required to hold the relevant project materials for a period of six (6) months post-deployment, unless otherwise agreed to by the Parties in the applicable Purchasing Document.
13. Warranties
13.1 Your Warranties
You represent and warrant that You have:
(a) the legal capacity and authority (including all necessary licences, consents and authorisations) to enter into this these Master Service Terms and Conditions and each Purchasing Document and to procure the Services from Transcending Monkeys in accordance with these Master Service Terms and Conditions;
(b) Your use or receipt of the Services does not and will not infringe the Intellectual Property Rights of any third party; and
(c) not relied on any representation made by Transcending Monkeys which has not been expressly stated in these Master Service Terms and Conditions,
and You acknowledge that Transcending Monkeys has relied on the above representations and warranties in agreeing to provide the Services to You in accordance with the Master Service Terms and Conditions.
13.2 Exclusion of warranties
To the maximum extent permitted by law, You agree that:
(a) We do not warrant that the Services (as applicable) will be complete or accurate, meet Your needs or expectations, be fit for Your purposes or be delivered by any date or time except to the extent expressly set out in a Purchasing Document; and
(b) all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Master Service Terms and Conditions or a Purchasing Document are excluded.
Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Our liability for breach of that non-excludable condition, warranty or guarantee will, at Our option, be limited to:
(a) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(b) in the case of services, the supply of the services again.
14 Liability generally
(a) Subject to clause paragraphs (b) and (c) below, neither party is liable for any loss or damage which is not loss or damage arising naturally and in the usual course of things from the relevant facts or circumstances giving rise to the breach of these Master Service Terms and Conditions or a Purchasing Document or the relevant loss, and specifically neither party will be liable for:
(i) indirect or consequential loss; or
(ii) loss of revenue (other than in respect of Fees or expenses payable by the Client to Transcending Monkeys), loss of profits, loss of opportunity, loss of data, loss of goodwill, wasted expenditure, loss of business reputation, loss of reputation or adverse publicity or damage to credit rating.
(b) Each party’s liability under or in connection with these Master Service Terms and Conditions and each Purchasing Document is proportionate to the extent to which that party contributed to the relevant liability. To avoid doubt, Transcending Monkeys’s liability for any delays in delivery of the Services is reduced to the extent that You or Your Personnel caused or contributed to the relevant delay.
(c) Nothing under these Master Service Terms and Conditions limits either party’s liability to the other in connection with:
(i) the party’s indemnification or confidentiality obligations under these Master Service Terms and Conditions;
(ii) the fraud or wilful misconduct of that party; or
(iii) any injury or death to any person or damage to property arising from the negligent or wilful acts or omissions of that party.
15 Limitation of our liability
Subject to clause 14, our maximum aggregate liability to You arising out of these Master Service Terms and Conditions will not exceed the Fees (to avoid doubt, excluding expenses or amounts paid by You in connection with media purchased by Us on Your behalf under a Media Buying Authority) actually paid by You to Us under these Master Service Terms and Conditions in the 12 months immediately preceding the first event or circumstance which gave rise to the relevant liability.
16 Indemnity
(a) You will indemnify, defend, and hold Us (including Our employees, independent contractors, vendors, agents and/or permitted subcontractors) harmless from and against all damage, claims (including third party claims), demands, suits, causes of action, awards, judgments and liabilities, including the cost of defending or settling any claims, demands, suits, causes of action, awards, judgments and liabilities (collectively Claims) arising out of or alleged to have arisen out of:
(i) Your (and/or the Personnel’s) use of the Services, including but not limited to any actual or alleged infringement, misappropriation, or violation of any Intellectual Property Rights of a third party;
(ii) any data leak, security incident or breach or other compromise of Client Data (including personal information) associated with Your web assets, software, hardware or other technology;
(iii) any act or omission of Transcending Monkeys in connection with the Social Media Community Management Services (including a failure to comply with the Service Levels, for which termination is Your sole remedy, as set out in Schedule 2 or any failure to report any material issue, problem or concern at all, or on a timely basis, to Your Personnel) except where such act or omission is fraudulent or amounts to wilful misconduct;
(iv) a breach of a provision of these Master Service Terms and Conditions or a Purchasing Document by You or Your Personnel (including a breach of a representation or warranty given by You); and/or
(v) Transcending Monkeys or its Personnel acting in accordance with these Master Service Terms and Conditions or otherwise making any decision in good faith in relation to the provision of any Services.
(b) Unless otherwise expressly agreed in these Master Service Terms and Conditions, We will only indemnify, defend, and hold You harmless from and against third-party Claims to the extent the Claims are due solely to any actual or alleged infringement, misappropriation, or violation of any Intellectual Property Rights of a third party arising out of the Services, and to the extent that the claim does not arise from Your use of the Services that is in breach of these Master Service Terms and Conditions or any applicable Third Party Agreement.
17 Termination
17.1 Termination by either party
A party may immediately terminate these Master Service Terms and Conditions, each Service then provided by Transcending Monkeys and any applicable Purchasing Document(s) by providing the other party with written notice where the other party:
(a) has committed a material breach of these Master Service Terms and Conditions or the applicable Purchasing Document and failed to remedy such breach within ten (10) Business Days after receiving notice requiring the defaulting party to do so;
(b) is unable to perform its obligations due to a Force Majeure event for a period of 30 days or longer; or
(c) becomes the subject of an Insolvency Event.
If We exercise our termination rights under this clause, then all Fees paid are non-refundable and any outstanding Fees due to be paid are immediately due and payable.
17.2 Termination by Us
(a) Subject to paragraph (b), We can terminate these Master Service Terms and Conditions and any or all current Services and/or Purchasing Documents, including Your right to use or receive any Service (in part or in full), for any reason and at any time with or without notice to You and without further liability to You.
(b) If the applicable Purchasing Document or Service is subject to a fixed or minimum committed term, we can only terminate the Purchasing Document during such fixed or committed term in accordance with subclauses 17.2(a) or (b).
17.3 Termination by You
(a) Subject to paragraphs (b) and (c) below and any fixed or minimum committed term set out in the applicable Purchasing Document, You can terminate a Service (in full) for any or no reason by providing Us with 90 days’ prior written notice subject to any terms and conditions set out in the applicable Purchasing Document (such as an early termination fee). Where You are terminating as a consequence of an increase in Fees under clause 18, you may terminate the relevant Purchasing Document with effect from the date that the increase is scheduled to take effect.
(b) If You terminate in accordance with paragraph (a), all Fees paid are non-refundable and any outstanding Fees due to be paid (for example, Fees owed to Transcending Monkeys in respect of any minimum committed term of Your Service(s)) are immediately due and payable.
(c) Where the 90th day falls on a day other than the final day of a calendar month, the effective date of termination will be the final day of the month in which the 90th day falls.
17.4 Consequences of Termination
Where these Master Service Terms and Conditions or any Purchasing Document terminates or expires, Transcending Monkeys will be regarded as discharged from any further obligations under these Master Services Terms and Conditions or the Purchasing Document, as applicable, and may:
(a) retain any moneys paid;
(b) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(c) require You to return any Confidential Information in your possession;
(d) pursue any additional or alternative remedies provided by law; and
(e) purge all Client Data after thirty (30) calendar days’ following the expiry or termination (provided that during such period the Client will have access to the Client Data for the purposes of backup).
Termination shall not affect any claim by Transcending Monkeys in respect of accrued Fees, expenses, taxes or other amounts payable by You in respect of the period to termination.
18 Updates and changes to the Service and Fees
Without limiting our general rights to amend these Master Service Terms and Conditions, We may modify, improve or update our Services and the Fees we charge You in respect of the Services from time to time. Any increases to Fees or changes to Your Service which may materially detrimentally affect You or Your enjoyment of the Services, will apply no earlier than thirty (30) days following notice to You, or, if You have agreed to a fixed or minimum committed term, on renewal.
19 Non-Solicitation
While any Purchasing Documents are on foot and for a period of twelve (12) months following expiry or termination of the last Purchasing Document to terminate or expire, You will not, without Our prior written consent, directly or indirectly entice or solicit, or assist another person to entice or solicit, an employee, contractor, officer or agent of the other party with whom it has had dealings with You.
20 Disputes
If the parties fail to reach agreement on any matter within twenty (20) Business Days after one party notifies the other of the existence of a dispute for the purposes of this clause, either party may refer the determination of the issue to an expert to be agreed between the parties (failing which, appointed by the Australian Disputes Centre) and to be administered in accordance with the Australian Disputes Centre Rules for Expert Determination. The determination of the expert shall be final and binding in the absence of manifest error, and any cost incurred will be apportioned equally between Transcending Monkeys and the Client. However, this clause does not prevent Us from commencing debt recovery procedures against You, unless You have given Us particularised written notice of a bona fide dispute in relation to those disputed unpaid debts in accordance with clause 9(f). Furthermore, nothing in the clause will prevent a party from seeking urgent interlocutory relief where failure to obtain such relief would cause irreparable harm to that party.
21 Notices
All notices, certificates, consents, approvals, waivers and other communications in connection with these Master Service Terms and Conditions or a Purchasing Document must be in writing, signed by the sender (if an individual) or an authorised officer of the sender and marked for the attention of:
(a) if the notice is to You, the person identified in the relevant Purchasing Document Form; and
(b) if the notice is to Us, to: hello@transcendingmonkeys.com.
Communications sent by email need not be marked for attention in the way stated above. However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.
Communications must be:
(a) left at the address set out above;
(b) sent by prepaid ordinary post (airmail if appropriate) to the address set out above;
(c) sent by email to the address set out above; or
(d) given in any other way permitted by law.
However, if the intended recipient has notified a changed address or email address, then the communications must be to that address or email address. Communications take effect from the time they are received or taken to be received under the below paragraph (whichever happens first) unless a later time is specified. Communications are taken to be received:
(a) if sent by registered post, three (3) Business Days after posting (or five (5) Business Days after posting if sent from one country to another); or
(b) if sent by email:
(i) when the sender receives an automated message confirming delivery; or
(ii) four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered,
whichever happens first.
22 Force majeure
(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under these Master Service Terms and Conditions or a Purchasing Document (other than an obligation to pay money) due to an act of God or any other cause beyond the reasonable control of the affected party (Force Majeure), the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with paragraph (a) above, the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
23 Advertising
You agree that Transcending Monkeys has the right to publicly identify You as a client of Transcending Monkeys and describe the nature of the Services provided to You and You grant Transcending Monkeys a royalty free license to use Your trademark or logo on Our website and other marketing collateral for such purposes.
24 General
24.1 Amendment
(a) These Master Service Terms and Conditions can be amended in writing signed by both parties. In addition, subject to paragraph (b), we can amend these Master Service Terms and Conditions without first notifying You about the amendment if the change is beneficial to You or does not interfere with Your enjoyment of the Services.
(b) If We wish to amend these Master Service Terms and Conditions, other than in accordance with paragraph (a), We will give You at least thirty (30) days’ notice in writing (normally, by email) before We make a change to these Master Service Terms and Conditions that may be detrimental to You, or that could interfere with Your enjoyment of the Services. Where the detriment or interference is material, You may terminate these Master Service Terms and Conditions, each Service then provided by Transcending Monkeys and any applicable Purchasing Document(s) by providing Us with no less than ten (10) Business Day’s prior written notice.
(c) Whenever We make a change to these Master Service Terms and Conditions, the revised Master Service Terms and Conditions will be made available on Our website.
24.2 Novation and assignment
You must not assign, transfer, novate or otherwise dispose of any of Your rights or obligations (as applicable) under these Master Service Terms and Conditions or a Purchasing Document, without Our prior written consent (not to be unreasonably withheld).
We may assign, transfer, novate or otherwise dispose of any of Our rights or obligations (as applicable) under these Master Service Terms and Conditions or a Purchasing Document and this paragraph shall constitute deemed consent to such action provided that the incoming party undertakes to comply with these Master Service Terms and Conditions and any applicable Purchasing Document in accordance with their terms.
24.3 Entire agreement
To the maximum extent permitted by law, these Master Service Terms and Conditions (together with the Purchasing Document(s)), embodies the entire agreement of the parties in relation to its subject matter and supersedes any and all prior agreements, understandings, representations and undertakings, whether oral or in writing.
24.4 Severance
If any provision or part of a provision of these Master Service Terms and Conditions or a Purchasing Document is held or found to be void, invalid or otherwise unenforceable (whether in respect of a particular party or generally), it will be deemed to be severed to the extent that it is void or to the extent of voidability, invalidity or unenforceability, but the remainder of that provision will remain in full force and effect.
24.5 Waivers
Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under these Master Service Terms and Conditions by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under these Master Service Terms and Conditions.
24.6 Survival
Any term or condition which is expressed to survive the expiration or termination of these Master Service Terms and Conditions will survive any expiration or termination of the Master Service Terms and Conditions, including but not limited to clauses 2, 9, 10, 11, 12, 13.1, 13.2, 15, 16, 17, 19, 20, 21, 23, 24, and 25.
24.7 Governing law and jurisdiction
These Master Service Terms and Conditions and each Purchasing Document is governed by the laws in force in New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts having jurisdiction in that state.
25 Definitions
In these Master Service Terms and Conditions, the following meanings apply unless the context requires otherwise:
Business Day means any day other than Saturday, Sunday or public holiday in Sydney, New South Wales, Australia.
Client Data means data or information provided by the Client to Transcending Monkeys.
Confidential Information means any information of whatever kind which a party discloses or reveals to the other party under or in relation to these Master Service Terms and Conditions that:
(a) is by its nature confidential;
(b) is designated by the disclosing party as confidential; or
(c) the recipient knows or reasonably ought to know is confidential,
including (where We are the disclosing party) Our Services and (where You are the disclosing party) Client Data, but does not include information that:
(d) is published or has otherwise entered the public domain other than in breach of these Master Service Terms and Conditions; or
(e) is independently developed or obtained other than in breach of these Master Service Terms and Conditions.
Corporations Act means the Corporations Act 2001 (Cth).
Fees has the meaning given to that term in clause 1.
Force Majeure has the meaning given to that term in clause 22.
Insolvency Event means that:
(a) a party enters into any arrangement between itself and its creditors;
(b) a party ceases to be able to pay its debts as they become due;
(c) a party ceases to carry on business;
(d) a mortgagee enters into possession or disposes of the whole or any part of the party’s assets or business;
(e) a receiver, a receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person is appointed of the whole or any part of the party’s assets or business; or
(f) any analogous event occurs in relation to a party.
Intellectual Property Rights means:
(a) all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:
(i) registered and unregistered copyright;
(ii) inventions (including patents, innovation patents and utility models);
(iii) confidential information (including the right to enforce an obligation to keep information confidential), trade secrets, technical data and know-how;
(iv) registered and unregistered designs;
(v) registered and unregistered trade marks;
(b) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(c) any business name registration;
(d) any domain name registration;
(e) any social media account;
(f) any licence or other similar right from a third party to use any of the above;
(g) any applications and the right to apply for registration of any of the above; and
(h) any rights of action against any third party in connection with the rights included in paragraphs (a) to (g) above, including any right to claim (and retain) any damages and other remedies (including an account of profits) for infringement,
but excluding moral rights and similar personal rights which by law are non‑assignable.
Media Buying Authority has the meaning given in clause 5.
Paid Media Management Services means those paid media management services as described and set out in Schedule 1 of these Master Service Terms and Conditions.
Personnel means a party’s employees, independent contractors, vendors, agents and/or permitted subcontractors.
Privacy Policy means Our privacy policy as published on Our website and as updated from time to time.
Search Engine Optimisation Services means those search engine optimisation services as described in Schedule 1 of these Master Service Terms and Conditions.
Service Levels has the meaning given to that term in Schedule 2.
Social Media Community Management Services means those social media community management services as described in Schedule 1 of these Master Service Terms and Conditions.
Web Services means those web services as described in Schedule 1 of these Master Service Terms and Conditions.
26 Interpretation
In these Master Service Terms and Conditions, headings are for convenience only and do not affect interpretation and unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to a person includes a reference to a body corporate, a government organisation, body or instrumentality, an unincorporated body and any other entity;
(c) each schedule of this these Master Service Terms and Conditions forms part of these Master Service Terms and Conditions;
(d) a reference to these Master Service Terms and Conditions includes a reference to any variation, replacement or novation of it;
(e) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(f) a reference to a thing includes a reference to any part of that thing;
(g) a reference to any party to these Master Service Terms and Conditions where relevant includes a reference to the party’s successors and permitted assigns;
(h) where a word or phrase is defined, its other grammatical terms have corresponding meanings;
(i) a reference to conduct includes a reference to any omission, statement or undertaking, whether or not in writing;
(j) a word or phrase appearing in a certain context which, when used in a similar context in the Corporations Act would have a particular meaning, has that meaning in these Master Service Terms and Conditions;
(k) a reference to month is a reference to a calendar month; and
(l) a reference to writing includes communication by electronic mail.