Standard terms and conditions

  1. Contract
    1. By clicking the ‘I accept’ button during the online registration process, or otherwise completing the online registration process, for the Services the Client agrees to enter into a contract with Dynamic Creative for the Services (Contract) comprising:
      1. the Service Plan and the other Product Information that relates to the Application and the Services the subject of the Service Plan (including any specific terms specified in that Product Information);
      2. clauses 1 to 24 of this document; and
      3. any documents incorporated by reference in any of the documents listed in clauses 1.1(a) and 1.1(b).
    1. If there is any inconsistency between the components of the Contract, the component listed first in clause 1.1 will prevail to the extent necessary to resolve that inconsistency.
    2. If:
      1. the individual that clicks the ‘I accept’ button during the online registration process does so on behalf of a company or an organisation; and
      2. that individual does not have authority to bind that company or organisation, 

that individual will be the ‘Client’ for the purposes of the Contract.

  1. Definitions

In the Contract the following words have the meanings set out below unless the context requires otherwise:

Affiliate for an entity other than an individual means any entity which is not an individual that Controls, is Controlled by, or is under common Control with, that entity.

Application means the application known as FeedOps described in the Product Information as updated, upgraded or otherwise changed from time to time.

Authorised User means an individual who is, or which becomes or has been nominated as, an ‘authorised user’ in accordance with clauses 4.4, 4.5 or 4.6 and: 

      1. who has not ceased to be, or been replaced as, an Authorised User in accordance with clause 4.6; or
      2. whose access has not been revoked or suspended in accordance with clause 7.

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth) or the corresponding provisions of the fair trading legislation.

Business Day means a day other than a Saturday, Sunday or public holiday in South Australia.

Client means: 

      1. if a company or another organisation is specified in the online registration form, that company or organisation, or if no company or another organisation is specified in the online registration form, the individual specified in the online registration form; or
      2. in the circumstances described in clause 1.3, the individual that is specified to be the ‘Client’ in that clause. 

Client Content means any information or data (including Personal Information) relating to the Client, the Client’s products or any of its Personnel that the Client or any of its Personnel provides to Dynamic Creative or which Dynamic Creative accesses or collects in the course of performing the Contract, including any information relating to the Client’s products that Dynamic Creative collects through its interfaces with the Client e-commerce Platforms.

Client e-commerce Platform means each e-commerce Platform that the Client uses as a channel to sell its products online which it selects in its online registration form, as updated from time to time in accordance with clause 8.2.

Client Merchant Data Feed Solution means each Merchant Data Feed Solution that the Client uses as a channel to advertise and sell its products online which it selects in its online registration form, as updated from time to time in accordance with clause 8.2.

Confidential Information of a party means information that is designated by the Disclosing Party as confidential, or which the Receiving Party knows, or ought to know, is confidential, and which: 

      1. is disclosed to the Receiving Party whether before or after the date on which the Contract commences; or
      2. otherwise comes into the Receiving Party’s possession, or of which the Receiving Party becomes aware, through the performance of the Contract,

and, in Dynamic Creative’s case, includes the Application and any login details given to an Authorised User.

Consequential Loss means:

      1. any Loss which is, or relates to, profits, revenue or lost opportunities, anticipated savings, goodwill or reputation, or loss of, or corruption of, any of the Client’s data (including the Client Content) or systems, including any costs of rekeying or restoring lost or corrupted data;
      2. special Loss; or
      3. any other Loss that cannot fairly and reasonably be considered to have arisen naturally (that is in the usual course of things) from the event or circumstance or series of events or circumstances that gave rise to that Loss.

Control of an entity other than an individual means a power to control that is direct or indirect or that is, or can be, exercised as a result of, or by means of, ownership of an interest, a trust, an agreement, a practice or any combination of them, whether or not they are enforceable, express or implied, formal or informal, or exercised alone or jointly, and includes ‘control’ as defined in section 50AA of the Corporations Act 2001 (Cth).

Contract has the meaning given to that term in clause 1.1.

Disclosing Party means the party whose Confidential Information is disclosed to, otherwise comes into the possession of, or becomes known to, the other party.

Dynamic Creative means Dynamic Creative Pty Ltd (ABN 29 100 776 850). 

e-commerce Platform means an online shopping platform supplied by a third party which a retailer can use to sell its products online.

Fees means the applicable amounts specified in the Service Plan, as varied in accordance with the Contract.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Indirect Tax means a goods and services tax, a sales or use tax, a value added tax, a consumption tax or any similar or equivalent tax of any kind, and includes GST.

Insolvency Event means:

      1. for a body corporate:
        1. proceedings are commenced, a resolution is passed or proposed, an application to, or order of, a court is made, or other steps are taken, against or in respect of that entity: 

(A) for its winding up, deregistration or dissolution; or 

(B) for it to enter an arrangement, compromise or composition with, or assignment for the benefit of, its creditors, a class of them, or any of them;

        1. a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement is appointed to all or any part of the property of that entity;
        2. a controller (as defined in section 9 of the Corporations Act 2001 (Cth)), a receiver, receiver and manager, voluntary administrator or an administrator of a deed of company arrangement, is appointed to, or a mortgagee takes possession of, all or any part of the business or assets of that entity or any step preliminary to such appointment is taken;
        3. that entity stops or suspends, or threatens to stop or suspend, payment of all or a class of its debts;
        4. that entity or any creditor appoints a voluntary administrator or a resolution is passed for that entity to execute a deed of company arrangement;
        5. that entity ceases, or threatens to cease to carry on its business; 
        6. that entity becomes unable to pay its debts as and when they become due; or
        7. any event analogous or equivalent to the events described in paragraphs (a)(i) to (a)(vii) occurs in respect of that entity; or
      1. for an individual or other entity which is not a body corporate, that individual or other entity:
        1. is unable to pay their debts as and when they become due;
        2. ceases, or threatens to cease to carry on its business;
        3. is, or becomes bankrupt or is, or becomes, the subject of any bankruptcy proceedings; 
        4. has any of his or her assets placed under the control of, or at the discretion of, any other person including as a result of the application of any law; or
        5. any event analogous or equivalent to the events described in paragraphs (b)(i) to (b)(iv) occurs in respect of that individual or other entity.

Intellectual Property Rights means all intellectual property rights and related rights, anywhere in the world, registered or unregistered, including the following rights:

      1. patents, copyright (including software), rights in circuit layouts, registered designs, trade marks, know-how, inventions and the right to have confidential information kept confidential; and
      2. any application or right to apply for registration of any of the rights referred to in paragraph (a).

Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction.

Losses means all liabilities, losses, damages, costs and expenses suffered or incurred by any person howsoever caused, whether arising in contract or tort (including negligence) or under any statute or under any other cause of action, and Loss has a corresponding meaning.

Merchant Data Feed Solution means a service supplied by a third party that allows retailers to upload and store information relating to their products and their e-commerce Platform so that that information can be made available for retail advertisements and other services supplied by that third party supplier. 

Month means each month during the term of the Contract as contemplated in clause 3.

Output means any output generated using the Application or the Service.

Payment Facility means any credit card, bank card, bank account or other payment facility, details for which are provided by the Client for the payment of the Fees.

Permitted Number Of Users means the quantity of Authorised Users that are entitled to access and use the Application and the Services as specified in the Product Information relating to the Service Plan.

Personal Information means ‘personal information’ as defined in the Privacy Act 1988 (Cth) and any other information that is regulated by, or under, any other Privacy Law.

Personnel means: 

      1. for the Client:
        1. the officers, employees, directors, contractors, agents of the Client or any of its Affiliates; and
        2. any entity that forms part of that the Client’s or any of its Affiliates’ supply chain and the officers, employees, directors, contractors, agents of those entities;

but excludes Dynamic Creative and any of its personnel; and

      1. for any other person: 
        1. the officers, employees, directors, contractors and agents of that person or any of its Affiliates; and
        2. any entity that forms part of that person’s or any of its Affiliates’ supply chain and the officers, employees, directors, contractors, agents of those entities,

but in the case of Dynamic Creative, excludes the Client and any person described in paragraph (a). 

Privacy Law means the Privacy Act 1988 (Cth) and any other Law, ancillary rules, code of conduct, guidelines, or orders or directions made by an authority or other authorised body under any Law relating to privacy, data protection, direct marketing, data security or the handling of personal information or data.

Product Information means the information published by Dynamic Creative which describes the applications, software and services that Dynamic Creative supplies to its clients, and the plans that apply to those applications, software and services, as updated by Dynamic Creative from time to time.

Receiving Party means the party that receives, comes into possession of, or becomes aware of, Confidential Information of the Disclosing Party.

Service Plan means the plan described as part of the Product Information that sets out the details of the functionality, services and the amounts payable by the Client (if any) that is selected by the Client in its online registration form, as updated from time to time in accordance with clause 5.

Services means:

      1. supplying access to the Application and the associated functionality as specified in the Service Plan; and
      2. any other services, tasks, activities and functions that are described as Dynamic Creative’s responsibility in the Service Plan.

Supplier IP means any and all Intellectual Property Rights subsisting in:

      1. the Application, the Services, the Outputs or any other item which Dynamic Creative supplies, or to which it gives the Client access, under the Contract; or
      2. any enhancements or derivative works of any of the items listed in paragraph (a),

but excludes any and all Intellectual Property Rights relating to any Client Merchant Data Feed Solution or Client e-Commerce Platform.

Tax Deduction means a deduction or withholding for, or on account of, Tax from a payment under or in connection with the Contract.

Taxes means all duties, taxes, imposts, deductions, charges and withholdings imposed with respect to any transaction contemplated under the Contract, including:

      1. business taxes;
      2. excise, customs duties and other like taxes, fees or surcharges (including regulatory fees and surcharges); and
      3. any interest, penalties, charges, fees or other amounts payable on or in relation to paragraphs (a) and (b),

but excludes an Indirect Tax and Tax has a corresponding meaning.

Third Party Component has the meaning given to that term in clause 6.8.

  1. Term
    1. The Contract commences on the date on which the Client completes the online registration form and continues for an initial term of one month. 
    2. Unless the Client terminates the Contract under clause 21.1 prior to the end of the then current term, the term of the Contract will automatically renew for successive periods of one month.
  2. Services and the Application
    1. The Application operates to collect Client product data from the Client e-commerce Platforms and convert that data into a format that is then provided through to the Client Merchant Data Feed Solutions.
    2. Dynamic Creative must supply the Services in accordance with the terms of the Contract.
    3. Dynamic Creative grants the Client a non-exclusive, non-transferable, licence:
      1. to access and use the Application and the Services; and 
      2. subject to clause 6.3, to allow Authorised Users to access and use the Application and the Services, 

for the Client’s own internal business purposes: 

      1. up to the applicable Permitted Number Of Users specified in the Service Plan; and
      2. for the term of the Contract and otherwise in accordance with the terms of the Contract.
    1. If the Service Plan allows the Client to appoint multiple Authorised Users, subject to clause 6.3, the Client may nominate individuals who are members of its Personnel to be Authorised Users in the manner specified in the Product Information or otherwise specified by Dynamic Creative from time to time. 
    2. If the Service Plan only allows the Client to have a single Authorised User, only the individual that completed the online registration form, or any individual that replaces that individual in accordance with clause 4.6, will be an Authorised User that may use the Application and the Services.
    3. The Client may change its Authorised User(s) from time to time, in the manner specified in the Product Information or otherwise specified by Dynamic Creative from time to time.
    4. The Client acknowledges and agrees that the performance of the functionality and features of the Application and any Outputs are contingent on the quality and completeness of the Client Content.
    5. The Client acknowledges and agrees that:
      1. the access to the Application and the Services may not be continuous or uninterrupted and from time to time will be unavailable (including for the purposes of planned maintenance); 
      2. the Application, the Outputs and the deliverables associated with the Services may contain errors; and
      3. Dynamic Creative may, from time to time, change the Application or the Services.
  1. Changing the Service Plan
    1. The Client may, at any time, change the Service Plan in the manner specified by Dynamic Creative.
    2. If the Client upgrades its Service Plan from:
      1. a Service Plan that does not have a Fee to a Service Plan that has a Fee; or 
      2. a Service Plan that has a Fee to a Service Plan with a higher Fee, 

that change will take effect immediately and the Contract will be varied to the extent necessary to give effect to that change.

    1. To the extent that the Client upgrades its Service Plan part way through a Month as contemplated in clause 5.2: 
      1. the Fees that the Client is required to pay for that Month will be reduced by any amount that it has already paid for that period which relates to the time after the date on which the upgrade takes effect; and
      2. if no Fees were payable under the Service Plan before the change, the Client must pay the full amount of the Fees that apply to the applicable Month.
    2. If the Client reduces its Service Plan to a Service Plan that does not have a Fee or a Service Plan with a lower Fee, that change will take effect on and from the date on which the next automatic renewal takes effect under clause 3.2 and the Contract will be varied to the extent necessary to give effect to that change on and from that date.
  1. Client responsibilities
    1. The Client must give Dynamic Creative all information necessary to allow the Application to interface and interoperate with the Client e-commerce Platforms and the Client Merchant Data Feed Solution.
    2. The Client must ensure that the Client Content is accurate, complete and not misleading and otherwise complies with all Laws.
    3. The Client must not, and must ensure that none of its Personnel, cause the Client to exceed the applicable Permitted Number Of Users.
    4. The Client must only use, and must ensure that its Personnel only use, the Application and the Services for the Client’s own internal business purposes.
    5. Except to the extent permitted under clause 4.4, the Client must not use, exploit, commercialise, re-supply or provide access to, the Application or the Services in any way which would allow any third party to use or access those items as if it were the Client without entering into a separate agreement with Dynamic Creative.
    6. Except as otherwise specified in the Contract, the Client must not, and must ensure that none of its Personnel, allow any other person to use or realise the benefit of the Application or the Services, or disclose the Application or the Services to any third party.
    7. The Client must:
      1. provide, maintain and support all end user devices and other systems, hardware or services (including an internet connection) that are required for the Authorised Users to access the Application, the Services and the Outputs;
      2. only use the Application and the Services in accordance with the Contract and any other policies or procedures that Dynamic Creative publishes, or directions that Dynamic Creative gives the Client, from time to time relating to the use of those items;
      3. not publish, sell, resell, exploit, commercialise, license, sublicense, distribute, make available, rent, lease or provide access to the Application or the Services (including as part of a service bureau, outsourcing or other service offering) other than as permitted under the Contract;
      4. not use the Application, the Services or the Outputs:
        1. to contravene a Law or in a manner that causes Dynamic Creative, any of its Affiliates or any of their respective Personnel, to contravene a Law;
        2. to develop, store or transmit infringing, defamatory, libellous, or otherwise illegal, unlawful or tortious material, or to develop, store or transmit material in violation of any person’s rights; or
        3. to store or transmit any computer code that is intended or known to be harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data;
      5. not interfere with, or disrupt, the integrity or performance of the Application or the Services; 
      6. not attempt to gain unauthorised access to the Application or the Services or any data that is not Client Content;
      7. ensure that no Client Content contravenes a Law, is obscene, offensive, upsetting, defamatory or inappropriate, or infringes or appears to infringe any Intellectual Property Rights of any person;
      8. not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Application or the Services;
      9. only allow Authorised Users to access and use the Application and the Services and not permit direct or indirect access to, or use of, those items in any way that circumvents the Client’s Permitted Number Of Users;
      10. do all things necessary to ensure that all Authorised Users can no longer use and access the Application on and form the date that the use or access is no longer required by that Authorised User; 
      11. not frame or mirror any part of the Application, the Services or the Outputs;
      12. ensure that each individual who accesses or uses the Application and the Services has its own login details;
      13. keep all login details confidential and not disclose those login details to any other person;
      14. not modify, copy, or create derivative works based on any part, feature, function or user interface of the Application or the Services;
      15. except to the extent permitted by applicable law, not translate, disassemble, reverse engineer, or decompile the Application or the Services;
      16. not remove any trade mark, trade name, proprietary marks or symbols, copyrights, trade secret, disclaimers or warning legend from the Application, the Services or the Outputs; 
      17. not allow, or cause any other person, to act or fail to act in any way that if it was done or not done by the Client, would be a breach of the Client obligations under the Contract; and
      18. ensure that its Personnel (including any Authorised Users) comply with the requirements of the Contract as if they are the Client.
    8. The Client acknowledges that the Application, Services and the Outputs may include services, material or software provided by a third party supplier to Dynamic Creative and which Dynamic Creative licenses to the Client under the Contract (Third Party Component). The Client must, and must ensure that the Client’s Personnel:
      1. comply with any terms relating to any Third Party Component specified in the Product Information or that Dynamic Creative notifies the Client of; and
      2. not do, or fail to do anything, that causes Dynamic Creative to breach, or incur any liability under, an agreement with a supplier of any Third Party Component to the extent that the terms of that agreement are specified in the Product Information or have been notified to the Client.
  1. Suspension, revocation and limitation
    1. Without limiting any other term of the Contract, if the Contract, any component of the Application, any of the Services, or their supply under the Contract, contravenes or would contravene any Law, Dynamic Creative may (acting reasonably) revoke, suspend or limit the Client’s or one or more Authorised Users’ access to all or part of the Application or to any Services, to the extent necessary to address or prevent that contravention.
    2. Without limiting any other term of the Contract, Dynamic Creative may revoke, suspend or limit the Client’s or any Authorised User’s access to all or part of the Application or any Services to the extent necessary (acting reasonably) to address any failure of the Client, any of its Authorised Users or any of its other Personnel to comply with any of the requirements in clauses 4, 6 or 13.4, or the Client or any of its Personnel otherwise exceeding the scope of the rights granted under the Contract or breaching any other term of the Contract.
    3. If Dynamic Creative suspends, revokes or limits the Client’s or one or more Authorised User’s access under clause 7.2, Dynamic Creative must cease that suspension or limitation if the failure that gave rise to the suspension or limitation is remedied to Dynamic Creative’s satisfaction.
    4. If Dynamic Creative exercises its right under clause 7.2, the Client must continue to pay, and will not be entitled to any refund of, the Fees relating to the period of the revocation, suspension or limitation.
    5. If the Client has paid Fees in advance and Dynamic Creative exercises its right under clause 7.1, Dynamic Creative must determine (acting reasonably) an amount of the Fees that will be refunded to the Client to reflect the scope of the revocation, suspension or limitation, and promptly refund that amount to the Client. 
  2. Client Merchant Data Feed Solutions and Client e-Commerce Platforms
    1. The Client acknowledges and agrees that the Application and the Services only integrate and interoperate with the e-commerce Platforms and the Merchant Data Feed Solutions specified in the Product Information.
    2. The Client may:
      1. add or replace a Client Merchant Data Feed Solution or a Client e-commerce Platform from, or with, an e-commerce Platform or a Merchant Data Feed Solution specified in the Product Information from time to time; and
      2. remove a Client Merchant Data Feed Solution or a Client e-commerce Platform from time to time, 

in the manner specified by Dynamic Creative from time to time.

    1. The Client acknowledges and agrees that: 
      1. it must have a current subscription to each Client Merchant Data Feed Solution and each Client e-commerce Platform as a pre-requisite for the Application to operate as intended and for Dynamic Creative to supply the Services;
      2. it will be required to enter into a separate contract with a third party for the use of, access to, and services supplied through or relating to, each Client Merchant Data Feed Solution and each Client e-Commerce Platform in order to use the Application, the Services or the Outputs; and
      3. its use of a Client Merchant Data Feed Solution or a Client e-commerce Platform, and any exchange of, or storage or hosting of, data relating to a Client Merchant Data Feed Solution or a Client e-commerce Platform, will be governed by the applicable contract with the third party that supplies that Client Merchant Data Feed Solution or that Client e-Commerce Platform.
    1. SUBJECT TO CLAUSE 20.4, DYNAMIC CREATIVE EXCLUDES ANY LIABILITY TO THE CLIENT FOR ANY LOSSES SUFFERED OR INCURRED BY THE CLIENT OR ANY OF ITS PERSONNEL RELATING TO:
      1. ANY SUPPORT PROVIDED BY DYNAMIC CREATIVE OR ANY OF ITS PERSONNEL RELATING TO ERRORS RELATING TO A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM; 
      2. ANY ACT OR OMISSION OF ANY THIRD PARTY WHO SUPPLIES A CLIENT MERCHANT DATA FEED SOLUTION, A CLIENT E-COMMERCE PLATFORM, OR ANY ASSOCIATED SERVICES, OR ANY OF THEIR PERSONNEL; 
      3. THE USE OR OPERATION OF A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM; 
      4. A FAILURE OF A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM TO OPERATE IN ACCORDANCE WITH ANY APPLICABLE SPECIFICATIONS RELATING TO THAT CLIENT MERCHANT DATA FEED SOLUTION OR CLIENT E-COMMERCE PLATFORM;
      5. ANY CHANGE IN A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM (INCLUDING WHERE THAT CHANGE IMPACTS THE ABILITY OF THE APPLICATION OR ANY OUTPUT TO INTEGRATE AND INTEROPERATE WITH THAT CLIENT MERCHANT DATA FEED SOLUTION OR CLIENT E-COMMERCE PLATFORM); OR
      6. ANY IMPACT THAT A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM HAS ON THE APPLICATION OR ANY OF THE SERVICES (INCLUDING ANY PROBLEM OR ERROR IN THE APPLICATION OR ANY OUTPUT THAT IS CAUSED BY A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM).
  1. Fees
    1. The Client must pay Dynamic Creative the Fees (if any).
    2. Except as otherwise specified in the Contract, agreed between the parties in writing or otherwise required by Law, the Fees paid are non-refundable. 
    3. If the Service Plan includes a free trial period:
      1. no Fees will apply during that free trial period; and
      2. the Client must commence paying the Fees on and from the end of that free trial period.
    1. The Client agrees that if the Client or its Authorised User has provided Dynamic Creative with a Payment Facility, Dynamic Creative may charge or deduct the Fees that the Client is obliged to pay under the Contract using that Payment Facility:
      1. in the case of a payment to be made under clause 5.2, in advance at the time that the change to the applicable Service Plan becomes effective; and
      2. in all other cases, in advance at the start of each Month.
    1. If Dynamic Creative charges or deducts any Fees under clause 9.4, it must provide the Client with a receipt and an invoice for the amount that has been charged.
    2. If clause 9.4 does not apply, Dynamic Creative may give the Client an invoice for the Fees:
      1. in the case of a payment to be made under clause 5.2, in advance at the time that the change to the applicable Service Plan becomes effective; and
      2. in all other cases, in advance at the start of each Month.
    1. If Dynamic Creative gives the Client an invoice in accordance with clause 9.6, the Client must pay that invoice within 7 days after receiving that invoice.
    2. Dynamic Creative may change the Fees applicable to a Service Plan at any time by giving the Client a notice.
    3. If Dynamic Creative changes the Fees applicable to a Service Plan that change will take effect, and the Contract will be varied to reflect that change, on and from the date which is the start of the second Month after the end of the Month in which the notice of the change to the Fees is received by the Client.
    4. The Client acknowledges and agrees that it may terminate the Contract in accordance with clause 21.1 if it does not agree to any change to the Fees under clause 9.9.
  1. Overdue amounts
    1. If any amount owing by the Client under the Contract is overdue (including where any charge or deduction that Dynamic Creative attempts to make in accordance with clause 9.4 is not successful), Dynamic Creative may, without limiting its other rights and remedies, and without any liability to the Client or its Personnel suspend the Client’s and the Authorised User’s access to the Application and the Services until such time as the overdue amounts are paid in full.
    2. Dynamic Creative may not exercise its rights under this clause 10 if the Client is disputing the applicable overdue amounts reasonably and in good faith and is cooperating diligently to resolve the dispute.
  2. Indirect Taxes
    1. Unless otherwise stated, any amount specified in the Contract as the consideration payable for any supply made under or relating to the Contract does not include any Indirect Taxes payable in respect of that supply.
    2. If:
      1. a party makes a supply under or relating the Contract that is subject an Indirect Tax; and
      2. that supply is not specified as being inclusive of Indirect Taxes, 

then the recipient of the supply must also pay, in addition to the consideration for that supply, the amount of Indirect Tax payable in respect of the supply at the time the consideration for the supply is payable.

    1. If an event arises in relation to a supply made under the Contract which adjusts the amount of Indirect Tax that applies to any consideration, the amount paid or payable pursuant to clause 11.2 will be amended to reflect this and a payment must be made by the recipient of the supply to the supplier of the supply, or vice versa, as the case may be.
  1. Taxes generally and withholdings
    1. Any amount that Dynamic Creative is entitled to recover under or in connection with the Contract does not include any Tax. 
    2. All payments to be made by the Client under or in connection with the Contract must be made free and clear of, and without, any Tax Deduction unless a Tax Deduction is required to be made by Law.
    3. If a Tax Deduction is required to be made by Law, the Client must, at the same time that that amount to which the Tax Deduction relates is to be paid, pay an additional amount equal to the amount of the Tax Deduction so that Dynamic Creative receives an amount net of any deduction or withholding that is equal to the amount which it would have received had the Tax Deduction not been made or not been required to be made.
    4. The Client must notify Dynamic Creative promptly after becoming aware that a Tax Deduction is required to be made or if there is any change in the rate or the basis of a Tax Deduction.
    5. If the Client is required to make a Tax Deduction by Law, it must make that Tax Deduction, and any payment required in connection with that Tax Deduction, within the time allowed and in the minimum amount required by Law.
    6. Within 30 days after making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Client must give Dynamic Creative evidence reasonably satisfactory to Dynamic Creative that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant authority.
    7. Subject to clause 12.8, if Dynamic Creative has the legal obligation to pay or collect an amount in Taxes, Dynamic Creative will notify or invoice the Client for that amount (as applicable), and the Client must pay that amount at the same time as the consideration is paid, or otherwise within 30 days after receiving notice of the applicable amount, unless the Client provides Dynamic Creative with a valid tax exemption certificate authorised by the relevant authority. 
    8. Nothing in this clause 12 makes the Client liable for any Tax imposed on, and calculated by reference to, the net income actually received or receivable by:
      1. Dynamic Creative in the jurisdiction in which Dynamic Creative is incorporated; or
      2. a permanent establishment of Dynamic Creative in the jurisdiction in which that permanent establishment is located.
  2. Intellectual Property Rights 
    1. The parties acknowledge and agree that nothing in the Contract has the effect of transferring the ownership of any Intellectual Property Rights of Dynamic Creative to the Client.
    2. Dynamic Creative, its Affiliates, its licensors and third party content providers own all rights, title and interests in the Application, including all of their respective Intellectual Property Rights. 
    3. The Client acknowledges and agrees that Dynamic Creative and Dynamic Creative’s licensors own the Supplier IP on and from creation. To the extent that the Client or any of the Client’s Personnel own any Intellectual Property Rights in the Supplier IP, the Client assigns, or must procure the assignment of, those Intellectual Property Rights to Dynamic Creative on and from creation.
    4. The Client must not, and must ensure that its Personnel do not, use Supplier IP to develop any applications or software or to build any product or service.
    5. Dynamic Creative grants the Client a non-exclusive, non-transferable, licence to use, to allow Authorised Users to use, the Supplier IP incorporated in the Outputs for the Client’s own internal business purposes during the term of the Contract.
    6. Dynamic Creative acknowledges that the Client or its Personnel owns the Intellectual Property Rights in the Client Content and all other material that the Client or any of its Personnel provides to Dynamic Creative relating to the Contract.
    7. The Client grants Dynamic Creative and its Affiliates, or where necessary must procure the grant to Dynamic Creative and Affiliates of, a worldwide, non-exclusive, irrevocable, royalty-free licence:
      1. to use, reproduce, host, store, transmit and display the Client Content and all other material that the Client or any of the Client’s Personnel provides to Dynamic Creative or its Personnel for the purposes of performing Dynamic Creative’s obligations, or exercising Dynamic Creative’s rights, under the Contract; and
      2. to sublicense any of Dynamic Creative’s Personnel to exercise the rights granted under clause 13.7(a),

for so long as the Client Content or material is required to perform Dynamic Creative’s obligations, or exercise Dynamic Creative’s rights.

  1. Confidentiality
    1. The Receiving Party must keep confidential, and not use or disclose, any Confidential Information of the Disclosing Party other than as permitted under the Contract.
    2. The Receiving Party must take all steps and do all such things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the Disclosing Party.
    3. The Receiving Party may disclose Confidential Information of the Disclosing Party:
      1. to those members of its Personnel that need to know that Confidential Information for the Receiving Party to exercise any of its rights or perform any of its obligations under the Contract (and only to the extent that they need to know); 
      2. as required by Law, a regulatory authority, a court or the rules of any applicable stock exchange; and
      3. in relation to Dynamic Creative, to any bona fide prospective purchaser of the shares in Dynamic Creative or the business conducted by Dynamic Creative, subject to that person being bound by obligations of confidentiality that are similar to those in this clause 14.
    1. Notwithstanding clause 14.3, Dynamic Creative may disclose any Confidential Information of the Client to the third party that supplies a Third Party Component, a Client e-commerce Platform or a Client Merchant Data Feed Solution to the extent necessary to perform Dynamic Creative’s obligations or exercise Dynamic Creative’s rights under the Contract.
    2. The Receiving Party must ensure that the Confidential Information of the Disclosing Party is kept confidential by any person to whom the Receiving Party discloses that information.
    3. If the Receiving Party is required to disclose any Confidential Information in accordance with clause 14.3(b) then, to the extent possible, the Receiving Party must before doing so:
      1. notify the Disclosing Party and provide the details of the proposed disclosure; 
      2. give the Disclosing Party a reasonable opportunity to take any steps the Disclosing Party considers necessary to protect the confidentiality of that information; 
      3. provide any assistance reasonably required by the Disclosing Party to protect the confidentiality of that information; and
      4. notify the person to whom the Confidential Information is being disclosed that the information is Confidential Information of the Disclosing Party.
    1. The obligations in clauses 14.1 and 14.2 do not apply to Confidential Information that is:
      1. in the public domain otherwise than as a result of a breach of the Contract or another obligation of confidence or as a result of a disclosure under clause 14.3(b);
      2. created by the Receiving Party (whether alone or jointly with any person) independently of the Disclosing Party’s Confidential Information (if the Receiving Party has evidence in writing that the information falls within this exception); or
      3. already known by the Receiving Party independently of its involvement in the Contract or its interaction with the Disclosing Party and free of any obligation of confidence.
  1. Privacy
    1. Each party must comply with the Privacy Laws relating to any Personal Information in the performance of their obligations under the Contract.
    2. Dynamic Creative may transfer, transmit, store, hold, access or otherwise process Personal Information relating to the Client, or provided by the Client, any of its Personnel, or otherwise on the Client’s or its Personnel’s behalf, to, in or from (as applicable) jurisdictions other than Australia.
    3. Before Dynamic Creative is provided with any Personal Information by the Client any of its Personnel or otherwise on the Client’s or its Personnel’s behalf, in relation to any individual (Individual), the Client must have obtained the consent of, and made all disclosures and notifications to, that Individual relating to the:
      1. collection and use of the Personal Information by Dynamic Creative, its Affiliates, and their respective Personnel, for the purposes of performing Dynamic Creative’s obligations or exercising Dynamic Creative’s rights under the Contract; and
      2. disclosure of the Personal Information to Dynamic Creative, its Affiliates, and their respective Personnel, for the purposes of performing Dynamic Creative’s obligations or exercising Dynamic Creative’s rights under the Contract.
    1. Before Dynamic Creative is provided with any Personal Information relating to an Individual by the Client or any of its Personnel or otherwise on the Client’s or its Personnel’s behalf, the Client must take such steps as are reasonable to notify that Individual of the terms of Dynamic Creative’s then current privacy policy available at https://dynamiccreative.com/privacy/.
    2. The Client must notify Dynamic Creative immediately if the Client becomes aware of any breach or potential breach of this clause 15 or the Privacy Laws by the Client or any of the its Personnel. 
  1. Publicity and advertising
    1. Dynamic Creative may publish any information relating to the Client and its use of, or experience with, the Application, or its experience with Dynamic Creative more generally, on Dynamic Creative’s websites and in any marketing material. 
    2. Dynamic Creative may publish any testimonials or quotes provided by the Client and any associated Personal Information (including the name and position of the person who gave the testimonial or quote) on Dynamic Creative’s websites or in any marketing materials together with the Client’s name, brands, logos and trade marks.
    3. The Client consents to Dynamic Creative publishing or otherwise dealing with any information, testimonials or quotes as contemplated in clause 16.2.
    4. The Client grants Dynamic Creative a worldwide, non-exclusive, perpetual, irrevocable, royalty-free licence to use and reproduce any information, testimonials or quotes provided by the Client on Dynamic Creative’s websites and in any marketing materials as contemplated in clauses 16.1, 16.2 and 16.3.
    5. To the extent that an individual who is member of the Client’s Personnel has provided a testimonial or quote: 
      1. Dynamic Creative may publish that person’s name and position in connection with that testimonial or quote; and
      2. the Client’s obligations under clause 15 will apply to that Personal Information in the context of the rights granted to Dynamic Creative under this clause 16.5.
    1. Dynamic Creative may disclose the name and contact details of the Client, or the Client’s Personnel to its potential clients for the purposes of that person providing references relating to their use of, or experience with, the Application and Dynamic Creative more generally.
    2. The Client’s obligations under clause 15 will apply to any Personal Information disclosed in the circumstances contemplated in clause 16.6.
    3. Any details provided by Dynamic Creative to the Client relating to a potential client of Dynamic Creative is Dynamic Creative’s Confidential Information for the purposes of the Contract.
    4. Without limiting any other rights that Dynamic Creative may have under the Contract, and notwithstanding any other term of the Contract, Dynamic Creative may make press releases regarding the Clients decision to use the Application or to acquire services from Dynamic Creative more generally.
    5. If requested by Dynamic Creative, the Client must work with Dynamic Creative to issue a joint press release regarding the Client’s decision to use the Application or to acquire services from Dynamic Creative more generally.
    6. Dynamic Creative may contact the Client or any of its Personnel from time to time, including by email, for marketing purposes, including to provide marketing information about Dynamic Creative’s products and services.
    7. The Client consents to Dynamic Creative contacting the Client and its Personnel as contemplated in clause 16.11 unless the Client withdraws this consent though Dynamic Creative’s unsubscribe facility.
  1. Client Content
    1. Dynamic Creative must only use or access the Client Content for the purposes of performing Dynamic Creative’s obligations or exercising Dynamic Creative’s rights under the Contract.
    2. Dynamic Creative may:
      1. collect any information that it requires relating to the Client, its business or any of its products from the Client-ecommerce Platform in order to perform its obligations, and exercise its rights, under the Contract;
      2. transfer any Client Content to any of its Personnel (including any third parties that supply a Third Party Component) and any third party that supplies a Client Merchant Data Feed Solution or a Client e-commerce Platform, or any of their Personnel, or 
      3. otherwise allow any of its Personnel (including any third parties that supply a Third Party Component) and any third party that supplies a Client Merchant Data Feed Solution or a Client e-commerce Platform and any of their Personnel, to access any of the Application, the Outputs and any Client Content that Dynamic Creative is provided, collects, hosts or stores.
    1. Dynamic Creative may use any Client Content for its internal business purposes, including to perform comparative analysis with information provided, or made available by, other clients of Dynamic Creative. 
    2. Dynamic Creative will have no obligation to maintain or provide any Client Content, and may delete or destroy all copies of Client Content in its systems or otherwise in its possession or control.
    3. SUBJECT TO CLAUSE 20.4, DYNAMIC CREATIVE EXCLUDES ANY AND ALL LIABILITY TO THE CLIENT FOR ANY LOSSES SUFFERED OR INCURRED BY THE CLIENT OR ANY OF ITS PERSONNEL AS A RESULT OF INACCURACIES OR ERRORS IN, OR INCOMPLETE, CLIENT CONTENT.
    4. Dynamic Creative may, at any time, remove or delete any Client Content that in Dynamic Creative’s opinion (acting reasonably) contravenes a Law, is obscene, offensive, upsetting, defamatory or inappropriate, or infringes or appears to infringe any Intellectual Property Rights of any person.
  1. LIABILITY UNDER THE AUSTRALIAN CONSUMER LAW
    1. SUBJECT TO CLAUSE 18.2, IF:
      1. THE AUSTRALIAN CONSUMER LAW APPLIES TO THE APPLICATION, THE SERVICES OR ANY COMBINATION OF THEM; AND 
      2. THE CLIENT IS A ‘CONSUMER’ (AS THAT TERM IS DEFINED IN THE AUSTRALIAN CONSUMER LAW),

DYNAMIC CREATIVE’S LIABILITY TO THE CLIENT FOR LOSS THAT THE CLIENT OR ANY OF ITS PERSONNEL SUFFERS OR INCURS RELATING TO DYNAMIC CREATIVE’S FAILURE TO COMPLY WITH ANY CONSUMER GUARANTEE SET OUT IN THE AUSTRALIAN CONSUMER LAW IS LIMITED TO (AT DYNAMIC CREATIVE’S ELECTION):

      1. IN THE CASE OF ANY SERVICES, THE RE-SUPPLY OF THE SERVICES OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN; AND
      2. IN THE CASE OF ANY OTHER GOODS:
        1. REPLACING THOSE GOODS OR SUPPLYING EQUIVALENT GOODS;
        2. REPAIRING THE GOODS;
        3. PAYING THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS; OR
        4. PAYING THE COST OF HAVING THE GOODS REPAIRED.
    1. CLAUSE 18.1 WILL NOT APPLY IF:
      1. THE APPLICATION, THE SERVICES OR ANY COMBINATION OF THEM ARE SERVICES OR GOODS THAT ARE ‘ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD USE OR CONSUMPTION’ (AS THAT EXPRESSION IS USED IN THE AUSTRALIAN CONSUMER LAW); OR 
      2. IT IS NOT ‘FAIR OR REASONABLE’ (AS THAT PHRASE IS USED IN THE AUSTRALIAN CONSUMER LAW) FOR DYNAMIC CREATIVE TO RELY ON THAT LIMITATION.
  1. Indemnities

The Client indemnifies Dynamic Creative against all Losses that Dynamic Creative suffers or incurs relating to:

      1. use of the Application, the Services or the Outputs that is not in accordance with the terms of the Contract; 
      2. any:
        1. inputs, information, data or other material provided by the Client, any of its Personnel or any Authorised User or any Client Content; or 
        2. any Supplier IP that the Client assigns, or procures the assignment of, under clause 13.3,  

infringing, or being alleged to have infringed, the Intellectual Property Rights of any person; 

      1. any Client Content, including where that Client Content contravenes a Law, is obscene, offensive, upsetting, defamatory or inappropriate, or infringes or appears to infringe any Intellectual Property Rights of any person;
      2. the Client’s acts or omissions or the acts or omissions of any of the Client’s Personnel or any Authorised Users; 
      3. a breach, or non compliance with, clause 6; or
      4. any claim made against Dynamic Creative relating to the use, disclosure, storage or processing of Client Content by Dynamic Creative in accordance with the terms of the Contract.
  1. LIABILITY
    1. SUBJECT TO CLAUSE 20.4, DYNAMIC CREATIVE LIMITS DYNAMIC CREATIVE’S LIABILITY TO THE CLIENT FOR ALL LOSSES, IN AGGREGATE, TO AN AMOUNT EQUAL TO:
      1. IF NO FEES APPLY, $100; AND
      2. IF FEES APPLY, THE FEES PAID BY THE CLIENT FOR THE TERM OF THE CONTRACT.
    1. SUBJECT TO CLAUSE 20.4, DYNAMIC CREATIVE EXCLUDES ANY AND ALL LIABILITY TO THE CLIENT FOR CONSEQUENTIAL LOSS.
    2. SUBJECT TO CLAUSE 20.4, DYNAMIC CREATIVE EXCLUDES ANY LIABILITY TO THE CLIENT FOR LOSSES SUFFERED OR INCURRED BY THE CLIENT OR ANY OF ITS PERSONNEL, RELATING TO:
      1. ANY ERRORS IN THE APPLICATION, THE SERVICE OR THE OUTPUTS;
      2. ACCESS TO THE APPLICATIONS AND THE SERVICES:
        1. NOT BEING CONTINUOUS; OR
        2. BEING INTERRUPTED,

INCLUDING AS A RESULT OF THE CLIENT’S INTERNET CONNECTION;

      1. ANY CHANGES IN THE APPLICATION OR THE SERVICES;
      2. REMOVING ANY CLIENT CONTENT IN THE EXERCISE OF ITS RIGHTS UNDER THE CONTRACT;
      3. ANY CLIENT CONTENT;
      4. A FAILURE OF THE CLIENT, ANY OF ITS AUTHORISED USERS OR ANY OF ITS OTHER PERSONNEL TO COMPLY WITH ANY OF THE REQUIREMENTS IN CLAUSES 4 OR 6;
      5. ANY INABILITY OF THE CLIENT OR ANY OF ITS PERSONNEL TO USE THE APPLICATION OR ANY OUTPUTS BECAUSE THE CLIENT OR ITS PERSONNEL DOES NOT HAVE A CURRENT CONTRACT IN PLACE FOR A CLIENT MERCHANT DATA FEED SOLUTION OR CLIENT E-COMMERCE PLATFORM; 
      6. A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM, OR ANY SERVICES ASSOCIATED WITH A CLIENT MERCHANT DATA FEED SOLUTION OR A CLIENT E-COMMERCE PLATFORM; OR
      7. DYNAMIC CREATIVE EXERCISING ITS RIGHTS UNDER CLAUSE 7.1 OR OTHERWISE TO SUSPEND, REVOKE OR LIMIT THE CLIENT’S OR ANY OF ITS AUTHORISED USERS ACCESS TO THE APPLICATION, THE SERVICES OR THE OUTPUTS UNDER THE CONTRACT.
    1. Any exclusion specified in the Contract and the limitation of liability in clause 20.1 does not apply: 
      1. to Dynamic Creative’s liability to the Client for Losses that the Client or any of its Personnel suffers or incurs relating to Dynamic Creative’s failure to comply with any consumer guarantee set out in the Australian Consumer Law; or
      2. to the extent that they would cause Dynamic Creative to contravene a Law or cause the applicable clause to be void or unenforceable or otherwise purport to exclude or limit Losses that cannot be excluded or limited at law.
    1. Nothing in the Contract limits or restricts any general obligation of a party at law to mitigate against any Loss.
    2. Each party’s liability relating to the Contract (including under an indemnity) will be reduced proportionately to the extent that the other party or any of its Personnel caused that Loss. 
  1. Termination
    1. The Client may terminate the Contract at any time for convenience by giving written notice to Dynamic Creative or otherwise using any other medium specified by Dynamic Creative. 
    2. Dynamic Creative may terminate the Contract for convenience at any time by giving the Client a notice. 
    3. If a party terminates the Contract for convenience under clauses 21.1 or 21.2, that termination will take effect at the end of the then current term of the Contract.
    4. Either party may terminate the Contract for cause with immediate effect by giving the other party notice if the other party: 
      1. commits a material breach of the Contract and such breach:
        1. is not capable of being remedied; or
        2. is capable of being remedied, but has not been remedied by the other party within 14 days after receiving a notice from the other party requiring it to do so; or 
      2. suffers an Insolvency Event.
    1. Dynamic Creative may terminate the Contract with immediate effect by giving the Client notice if:
      1. the Client breaches any of clauses 4, 6 or 13.4, or the Client or any of its Personnel otherwise exceeding the scope of the rights granted under the Contract;
      2. Dynamic Creative has exercised its right to suspend, limit or revoke access to the Application, the Services or the Outputs under the Contract, and the Client does not remedy the event that gave rise to the suspension, limitation or revocation to Dynamic Creative’s satisfaction by the date within 7 days after the suspension, limitation or revocation commenced; or
      3. the Client fails to pay any amount that the Client is required to pay under the Contract (including where a deduction against a Payment Facility is not accepted or fails) by the date on which it is due under the Contract and does not remedy that breach by the date within 7 days after receiving a notice from Dynamic Creative to do so. 
  1. Consequences of termination or expiry
    1. If the Contract terminates or expires: 
      1. the Client must pay Dynamic Creative all amounts that the Client is liable to pay under the Contract which the Client has not paid, as at the date of termination or expiry; 
      2. the Client must cease, and ensure that all of the Client’s Personnel cease, using the Application and the Services;
      3. the Client must return to Dynamic Creative, or destroy, all of Dynamic Creative’s Confidential Information that Dynamic Creative has supplied to the Client or any of its Personnel in connection with the Contract; and 
      4. to the extent that Dynamic Creative continues to hold the Client’s Confidential Information, Dynamic Creative will continue to comply with Dynamic Creative’s obligations under clause 14 relating to that Confidential Information.If the Contract is terminated by the Client in accordance with clause 21.4, Dynamic Creative must refund any component of the Fees paid by the Client in advance that relates to the period after the date on which the termination took effect promptly after that termination takes effect. 
    1. The rights and obligations of the parties under the Contract do not merge on completion of any transaction contemplated by the Contract.
    2. Except as expressly set out in the Contract, any termination or expiry of the Contract will not prejudice any right of action or remedy which may have accrued to either party prior to that expiry or termination.
    3. Any indemnity and any obligation of confidence under the Contract is independent and survives termination or expiry of the Contract. Any other term by its nature intended to survive termination or expiry of the Contract survives that termination or expiry, including clauses 2, 4.7, 8.4, 11, 12, 13 (other than clause 13.5), 14, 15, 16, 17.4, 17.5, 17.6, 18, 20, 22 and 24.
  1. Variations
    1. Without limiting any other term of the Contract, Dynamic Creative may give the Client a notice specifying one or more variations to the terms of the Contract (Variation Notice).
    2. If Dynamic Creative gives the Client a Variation Notice and either: 
      1. the variations specified in that Variation Notice are necessary to ensure that a party complies with any Law (including as a result of a change in Law); or
      2. the variations specified in that Variation Notice do not negatively impact the Client’s position under the Contract when compared to the unvaried version of the Contract,

then:

      1. those variations will take effect on and from the date which is 60 days after the date on which the Client received the Variation Notice or such later date as specified in the Variation Notice; and
      2. the Client is deemed to have agreed to those variations.
    1. Except as otherwise specified in the Contract, any variations to the Contract must be agreed in writing by the parties (including by exchange of electronic communications).
    2. Clauses 23.2 and 23.3 do not operate or apply to limit Dynamic Creative’s rights or ability to unilaterally vary the Contract, including its rights or ability to change the Application, the Services, the Fees or the Product Information from time to time.
    3. Dynamic Creative is not required to give the Client a Variation Notice for any variation or change of a type contemplated in clause 23.4.
  1. General Provisions
    1. Except as otherwise specified in the Contract, all notices, demands, consents, approvals or communications related to the Contract (Notice) must be: 
      1. in writing from a person duly authorised by the sender; and
      2. sent by email to the recipient’s email address:
        1. in the case of the Client, specified in the online registration form as updated from time to time to time in the account settings; and
        2. in the case of Dynamic Creative, [email protected].
    1. Subject to clause 24.3, a Notice given in accordance with clause 24.1 is taken to be received an hour after the time the sender’s information system recorded that the email left the sender’s information system (as that term is defined in the Electronic Communications Act 2000 (SA)) unless, within one Business Day after that time, the sender is informed (by automatic notice or otherwise) that the email has not been received by the recipient.
    2. If the delivery, receipt or transmission of a Notice is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day. 
    3. To the extent that the Application is subject to any export Laws, the Client must comply with, and not cause Dynamic Creative to contravene, any of those export Laws. 
    4. The Contract is the entire agreement between Dynamic Creative and the Client relating to its subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 
    5. The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party is an agent or representative of, or has the authority to bind, the other.
    6. A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver. No failure, delay or partial exercise of any right under the Contract by either party will constitute a waiver of that right.
    7. If any provision of the Contract is held by a court of competent jurisdiction to be not legally enforceable, the provision, or the relevant part of it, will be deemed to be either amended as appropriate to make it enforceable or ignored, and the remaining provisions of the Contract will remain in effect.
    8. The Client must not transfer, assign or novate the Contract without Dynamic Creative’s prior written consent. 
    9. The Client irrevocably consents to Dynamic Creative transferring, assigning or novating any rights or obligations under the Contract. If Dynamic Creative requests that the Client novate the Contract to another person, the Client must do all things necessary to give effect to that novation, including executing all documents required to effect that novation. 
    10. The Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    11. This Contract is governed by the law in force in South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State and the South Australian Registry of the Federal Court of Australia in respect of all proceedings arising in connection with this Contract. 
    12. Subject to clause 20.4, the parties exclude all terms implied into the Contract in fact, at law, by a Law or on any other basis.
    13. In the Contract, unless the contrary intention appears:
      1. the singular includes the plural and vice versa, and a gender includes other genders;
      2. a reference to time is to time in Adelaide, Australia;
      3. a reference to a party is to a party to the Contract, and a reference to a party includes the party’s executors, administrators, successors and permitted assigns and substitutes;
      4. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; 
      5. the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions; 
      6. all references to dollars, ‘$’ or other amounts are references to Australian currency; and
      7. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Contract or any part of it.