Legals

TERMS

The following are the standard terms and conditions of trading between We’re All About Marketing (WAAM) and its Customers unless otherwise agreed.

Quotations and commencement of work

1. Quotations are based on the current costs of production and are valid for thirty (30) days from the date thereon unless otherwise agreed by We’re All About Marketing (WAAM) and are based on specifications and copy supplied by the customer at the time of quote.
2. All additional work not specifically covered by the quotation including extra work or cost caused by variations to original specifications or by the copy being poorly prepared, author's amendments, overtime charges and disbursements will be charged as extras.
3. Once accepted by the customer, WAAM written quotation shall be deemed to interpret the customer’s written or verbal instructions correctly. Where verbal instructions only are received from the customer, WAAM shall not be liable for errors or omissions, which are due to the failure of the customer to make known expressly or by implication the result that the customer desires to achieve. Once a deposit is paid and work is commenced for the customer, this deposit is deemed non-refundable.
4. Where WAAM incurs additional costs or expenses (including increases in the price of paper or other materials) in the performance of its contract with the customer WAAM reserves the right to recover such costs, including any service fee, from the customer.
5. WAAM shall require an official purchase order detailing all work to be carried out, before such work can commence.
6. All goods and services provided by WAAM after 1 July 2000 are subject to goods and services tax (GST). Prior to that date, WAAM shall be entitled to charge the amount of any sales tax payable unless a completed ‘Sales Tax Exemption Certificate’ is provided with or as part of the purchase order.
7. Print price quoted includes the cost of a single delivery to one Sydney address unless otherwise stated.
8. WAAM reserves the right to charge fees for the storage of any undelivered material where the customer has specifically requested that any materials be stored until requested. * Acceptance of WAAM’s quotation shall be acceptance of these terms and conditions, notwithstanding any inconsistencies that may be introduced by terms and conditions contained in the customer’s order, unless otherwise expressly agreed by WAAM in writing.
9. Work completed by WAAM will be invoiced directly to the company stated on the Purchase Order. If an agreement exists between WAAM and its customer that a third party (i.e. your client) be charged for such work, no transfer of liability will be given or implied unless: * The third party has a trading account with WAAM; and * The third party provides WAAM with written approval for such work to be charged to their account.
10. In the case where WAAM commences work for the customer on a barter basis (where the person(s) doing the work charge the client on a discounted basis for the exchange of the services that the customer would provide in return to WAAM – and a cancellation occurs, both parties are required to recalculate the market rate of the invoice from the date the agreement commenced. The required party need to repay the difference of the total amount less the bartered amount from the date the barter agreement commenced.
11. Any deposits paid for a project up front are non-refundable after project intiation.

Waivers, warranties, liabilities, disputes and claims

1. Withstanding that WAAM might agree in respect of any particular transaction, either expressly or by implication, to waive any of these terms and conditions, such agreement shall in no way release the customer from any other obligation or requirement set out herein.
2. WAAM shall not be liable for indirect or consequential loss or any loss to the customer arising from third party claims occasioned by errors in carrying out the work or delay in delivery.
3. WAAM use the most updated software solutions however some open source solutions do have technical issues from time to time that are not within our control. Any technical upgrades to be provided by WAAM required for providing optimum security for our clients websites, will be charged based on time and materials. Clients will be advised of an update release and it's priority level to ascertain whether the upgrade is necessary or optional.
4. No warranty, other than statutory warranties, is given by the seller or responsibility accepted by him or her to ensure that goods produced comply with the requirements of any legislation relating to the marketing and/or labeling and/or packaging of goods. Compliance with the requirements of such legislation shall be the sole responsibility of the customer.
5. Liability for breach of a condition or warranty implied into this contract by the Trade Practices Act 1974, other than a condition implied by Section 69, is limited to any one of the following, as determined by WAAM: * The supplying of the service again; or * The payment of the cost of having the service supplied again.
6. Subject to the application of statutory warranties, which cannot be excluded, no warranty shall be given that goods sold or work done will be reasonably fit for a purpose where that purpose is not made known expressly.
7. Contracts and deliveries may be suspended by WAAM in the event of any strike, lockout, trade dispute, fire, tempest, breakdown, riot, theft, crime, civil disturbance, war, legislation, force majeure, the inability of WAAM to procure necessary material or articles preventing or retarding performance of the contractor or delivery of work and no responsibility shall be attached to WAAM for any delay, default, loss or damage due to any of the above causes or to any other cause beyond the control of WAAM.
8. Upon notification to the customer that the work has been completed, the goods shall be at the customer’s risk.
9. The customer shall be deemed to have accepted the goods if, within seven (7) days (or such other period as WAAM may stipulate from time to time) of delivery, the customer fails to take possession of the goods or notify WAAM in writing that the goods have been rejected. * Should expedited delivery be agreed, reasonable efforts should be made by WAAM to secure freedom from defects, but WAAM shall not accept responsibility for defects.
10. Every endeavour will be made to deliver the correct quantity ordered, but WAAM reserves the right to vary estimates and/or orders by up to 10%.
11. All claims and disputes will only be recognised if notified within 24 hours of job delivery; and * All such claims including claims for non-delivery against WAAM must be formally made in writing within seven (7) days after the customer has notified WAAM of any dispute. * WAAM will endeavour to settle all claims made by the customer within 30 days of the receipt of any formal claim, but only when the customer cooperates with WAAM in the settlement of the claim or dispute and where an amicable agreement can be reached between the parties.

Copyright

1. WAAM accepts no responsibility or liability for the use of copyright material used in any work carried out by WAAM where such material is supplied by the customer or any third party.
2. The copyright ownership of any original artwork, whether electronic or otherwise, created for a customer, is deemed to belong with the creator of the work and is licensed for the specific and sole use for which it was created which will be deemed to be the job detailed in the customer’s purchase order for which the work is being carried out.
3. If additional usage rights are sought by the customer, additional fees will need to be agreed upon in writing before any additional work can commence.

Customer's approval of proofs

1. WAAM does not have the authority to sign approval to release artwork or proofs for printing. The final proofs will be required to be signed by an authorised representative of the customer. This signature will be deemed as absolute and final approval for the work to proceed to print.
2. WAAM shall incur no liability for any errors not corrected by the customer in proofs submitted. Customer's alterations and additional proofs necessitated thereby shall be charged as an extra. When style, type or layout is left to WAAM'S judgment, changes there from made by the customer shall be charged as an extra.
3. Payment shall become due upon delivery or on notification to the customer that the work has been completed. Unless otherwise stated by WAAM in writing, no discount shall be allowed and payment shall be by net monthly account. Unless otherwise stated in writing by WAAM, or agreed in writing by the customer, interest at the current bank overdraft rate plus 2 per cent may be charged on overdue accounts.
4. WAAM shall be entitled to charge monthly progress payments of up to 75 per cent, or such other portion as WAAM may stipulate, of the value of the work done. (iii) The suspension by the customer of any work, for any reason, for a period exceeding thirty (30) days shall entitle WAAM to payment for work already carried out, materials specially ordered for that work and other additional costs, including storage.
5. In the event that WAAM is required to engage the services of any mercantile agency to effect collection of any amounts due to WAAM then all collection expenses and associated charges shall be borne by the customer.
6. WAAM shall, in respect of all unpaid debts due from the customer, have a general lien on all goods and property in their hands shall be entitled on the expiration of fourteen (14) days notice to the customer to dispose of such goods or property as they think fit and to apply the proceeds towards such debts.
7. Customer’s property and all property and material supplied to WAAM by or on behalf of the customer will be held at the customer’s risk, and WAAM accepts no liability whatsoever for loss of, or damage to, such property or material unless otherwise agreed by WAAM in writing.
8. Unless otherwise agreed in writing, WAAM accepts no responsibility for the insurance of such property or material. In the event of WAAM agreeing in writing to insure such property or material, the cost of insurance premiums shall be charged to the customer.
9. Where the customer supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the customer in writing. An additional charge may be made by WAAM in respect of any such counting or checking requested by the customer.
10. In the case of property and materials left with WAAM without specific instructions, WAAM shall be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
11. Where materials or equipment are supplied or specified by the customer WAAM accepts no responsibility for imperfect work caused by defects in or unsuitability or such materials or equipment.
12. An extra charge may be made by WAAM for handling or storing property or materials supplied by, or on behalf of, the customer.
13. Any change or correction of any film, bromides, artwork and/or any printing surface supplied by the customer, necessary to ensure properly finished work, shall be paid for by the customer.

• WAAM will provide you with a shared IP address, username, and password to enable access to our service.
• We will provide you with the Hosting Plan you subscribe to and features as described on our web site.
• Hosting plans are to be used for web site hosting. Script development and testing scripts should be used on a private server as faulty scripts may cause server over-load.
• We will provide you with bandwidth. Bandwidth is measured by the data transferred to and from your account. Bandwidth usage includes web site (http), ftp and email traffic. We will provide you with disk space. Disk space is the amount of space measured in bytes used on the server(s). Disk space usage includes both web hosting account files and email. Disk space is used for active web site hosting and email files, not as a repository to store unrelated files and files not in use.
• Our email service is important to you and our other subscribers.

Customer's property and material supplied by customer

1. Customer’s property and all property and material supplied to WAAM by or on behalf of the customer will be held at the customer’s risk, and WAAM accepts no liability whatsoever for loss of, or damage to, such property or material unless otherwise agreed by WAAM in writing.
2. Unless otherwise agreed in writing, WAAM accepts no responsibility for the insurance of such property or material. In the event of WAAM agreeing in writing to insure such property or material, the cost of insurance premiums shall be charged to the customer.
3. Where the customer supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the customer in writing. An additional charge may be made by WAAM in respect of any such counting or checking requested by the customer.
4. In the case of property and materials left with WAAM without specific instructions, WAAM shall be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
5. Where materials or equipment are supplied or specified by the customer WAAM accepts no responsibility for imperfect work caused by defects in or unsuitability or such materials or equipment.
6. An extra charge may be made by WAAM for handling or storing property or materials supplied by, or on behalf of, the customer.
7. Any change or correction of any film, bromides, artwork and/or any printing surface supplied by the customer, necessary to ensure properly finished work, shall be paid for by the customer.

Ownership and transfer of ownership

1. Electronic forms of artwork shall be deemed ‘Means of Manufacture’ and shall remain at all times the property of WAAM.
2. Ownership of all finished materials (such as bromides and film, but excluding printing plates and electronic data), used to print an order shall be transferred to the customer once all accounts have been paid in full. Should the customer fail to claim ownership of such materials within fourteen (14) days of delivery, WAAM reserves the right to store or destroy such materials at its discretion. WAAM shall not be held liable for loss, damage or neglect of such stored materials unless the customer requests in writing that such materials be kept in a suitable condition for future use.
3. Drawings, sketches, paintings, photographs, designs, or typesetting furnished by WAAM, dummies, models or the like, devices made or procured and manipulated by WAAM and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from WAAM original design, or from a design furnished by the customer, remain the exclusive property of WAAM, unless otherwise agreed upon in writing. Further, if, in the absence of any specific agreement, the printer makes electrodes, stereos or other forms of duplication these remain his property.
4. Sketches, dummies or any other design media submitted by WAAM on a speculative basis shall remain the property of WAAM. They shall not be used for any purpose other than that nominated by WAAM and no ideas obtained there from may be used without the consent of WAAM. WAAM shall be entitled to compensation from the customer for any unauthorised use of such sketches, dummies or design media.
5. Ownership of any goods delivered by WAAM to the customer is only transferred when payment in full for the goods has been received by WAAM.
6. Where WAAM has not been paid in the manner specified here and WAAM delivers the goods to the customer then until disposed of by the customer in accordance with the provision of this clause the customer agrees with WAAM to keep the goods as a trustee for WAAM and is required to store the goods in a manner that clearly identifies them as the property of WAAM.

Electronic storage

1. It is WAAM’S policy to archive and store on CD ROM and/or DVD electronic forms of artwork manufactured, though WAAM is under no obligation to store such files. WAAM shall not be held liable for loss, corruption or neglect of archives.
2. The customer shall have no right or title to data stored by WAAM on disks or any other electronic form of storage.
3. Should WAAM agree to relinquish such files, ownership will not be transferred until all work has been paid in full.
4. WAAM reserves the right to charge for retrieval time and electronic media should the customer request such artwork on disk.

Other

These terms and conditions are to be read subject to mandatory provisions of legislation of the Commonwealth of Australia including the consumer protection provisions of the Trade Practices Act 1974 or of one or more of the States or Territories, which afford statutory rights to consumers. The invalidity of any clause, or part of a clause, shall not affect any other clause, or other part of the clause.

HOSTING

We agree to provide web hosting and email services to you through our host computers but only on the following basis:

Hosting

WAAM will provide you with a shared IP address, username, and password to enable access to our service.

We will provide you with the Hosting Plan you subscribe to and features as described on our web site.
Hosting plans are to be used for web site hosting. Script development and testing scripts should be used on a private server as faulty scripts may cause server over-load.

We will provide you with bandwidth. Bandwidth is measured by the data transferred to and from your account. Bandwidth usage includes web site (http), ftp and email traffic.

We will provide you with disk space. Disk space is the amount of space measured in bytes used on the server(s). Disk space usage includes both web hosting account files and email. Disk space is used for active web site hosting and email files, not as a repository to store unrelated files and files not in use.

Email Service

Our email service is important to you and our other subscribers.

As a condition of your use of our email service, you agree as follows: You agree to remove your email from our mail server promptly and to keep the space used by your files on the system below 20 megabytes. We have the right to remove email data in excess of 20 megabytes left by you on our mail server. If you have not made a special arrangement with us, we will not be liable for any loss of data because of your failure to housekeep your email.

Email enables a rapid, immediate and widespread response. You must not use the email service for communication that is defamatory or contrary to generally accepted community standards of behaviour or good taste. While we do not intend to be a censor, we have the right, at our discretion, to decide what those standards are, to review your use of our services at any time, and to terminate you if we consider that you have breached these standards. If you defame anyone through your use of the email service and we are sued, you agree that we have the right to recover all costs and losses incurred by us as a result of your action from you directly upon demand. You agree not to send multiple, unsolicited email (SPAM or UCE), to single or multiple users whether or not this is for business purposes. Generally, you agree to obey the developing rules of Netiquette. These are the general rules of good and considerate behaviour on the Internet as a world wide and open community. Any failure to obey these rules will result in a warning. If we consider the breach sufficiently serious (at our discretion), you agree that we may terminate your email service without liability to you.

We will make genuine and commercially reasonable efforts to make the services you have subscribed for operating fault free 24 hours a day and, if the system malfunctions, to restore those services as soon as reasonably possible. However, if in spite of those efforts, we cannot provide or restore the service (even if the failure is our fault) we are not liable to you. The reasons for these limits on our service levels are because: We do not own or control all the facilities and communication lines necessary for access, and therefore, we cannot guarantee that the service will be uninterrupted or error free. You may use our services for purposes we do not know about and have no control over.

We may at any time cancel, reject, or refuse to continue hosting any web sites without providing any reason for such rejection or refusal at any time prior to, or after, hosting any web site. This right will not be unreasonably exercised.

Site Management rights

If you do not comply with this Site Terms of Use or any other policy applying to a particular service, we may withhold, suspend, restrict or terminate your access to our services, or to Interspeed. We may also require you to edit material we consider to be unauthorised, misleading, offensive, defamatory, illegal or detrimental to our reputation or to our brand. If you do not do so to our satisfaction, we may edit that material ourselves, and we may withhold, suspend, restrict or terminate your use of the service without further notice. Nothing in this Site Terms of Use or in any other policy is intended to affect our rights to withhold, suspend, restrict or terminate services as set out in the applicable Terms of Service or any other applicable contractual terms.

RESELLERS

Definitions

WAAM        We’re All About Marketing

WAAM hereby appoints as an independent non-exclusive reseller of the Services and seller of related Services to end Users in the Territory in accordance with the terms of this Agreement, Reseller assumes full responsibility for marketing and supporting the Services and Services as provided under this Agreement.  This appointment is non-exclusive.  WAAM may market, sell, lease or license Services and services to anyone, including other resellers in the Territory.

TERMS OF PURCHASE OF SERVICES OR SERVICES BY RESELLER

1. Terms and Conditions.
   All purchases of Services or Services by Reseller from WAAM during the term of this Agreement shall be subject to the terms and conditions of this Agreement.  Without a signed acknowledgment by an authorized representative of WAAM, nothing contained in any Purchase Order or other written or verbal communication between the Parties shall in any way modify such terms of purchase or add any additional terms or conditions. Prices.

2. WAAM’s list of prices and applicable discounts for the Services and Services shall be as specified on attached Schedule A.  WAAM may revise such prices and discounts at any time by giving 30 days written or electronic notice to Reseller. Services and Services.

3. Services and Services may be changed, abandoned or added by WAAM, at its sole discretion, provided that WAAM gives 30 days’ prior written or electronic notice to Reseller of its intention to change or abandon any Product or Service previously purchased by Reseller under this Agreement.  The Services and Services shall have the specifications set forth in WAAM’s product/service data sheets as the same may be modified from time to time.Purchase Orders.

4. All Purchase Orders for Services submitted by Reseller shall be initiated by written Purchase Orders sent to WAAM requesting a delivery date during the term of this Agreement. No Purchase Order shall be binding upon WAAM until accepted by WAAM in writing, and WAAM shall have no liability to Reseller with respect to Purchase Orders that are not accepted due to failure to comply with the terms of this Agreement.  WAAM has no obligation to accept any Purchase Order.  WAAM shall use reasonable efforts to notify Reseller of the acceptance or rejection of a Purchase Order, and of the estimated delivery date for accepted Purchase Orders, within five days after receipt of the Purchase Order. WAAM shall use reasonable commercial efforts to deliver Services at the times specified either in its quotation or in its written acceptance of Reseller’s Purchase Orders.  WAAM will not be liable for delays resulting from causes beyond its reasonable control.Invoicing and Payment Terms.

5. WAAM shall submit an invoice to Reseller upon each shipment of Services ordered by Reseller.  The invoice shall cover Reseller’s purchase price for the Services and Services, taxes or other applicable costs initially paid by WAAM but to be borne by Reseller.  Full payment for all services shipped by WAAM shall be due within 14 days of the date of invoice.  Invoices not paid within the stated term may incur a service charge of one and one-half (1.5%) per month on any outstanding balance.Cancellations.

6. All software license calculations require a minimum of 30 day notice in writing. WAAM reserves the right to cancel any member for violating any of these Terms and Conditions without any refund of service. All cancellation requests must be submitted to accounts and billing department of WAAM. You may submit your cancellation requests by email, fax and/or direct mail or phone. Your request will not be considered valid unless and until you receive confirmation from our accounts or billing department. The confirmation email or number given by accounts department of WAAM will act as a proof of the cancellation of service.Refunds.

7. WAAM does not guarantee any refunds for the cancellation of its service. WAAM will act on the agreement signed upon by the client and WAAM. WAAM does not offer any refund for the transaction charges, for the services already delivered or any other miscellaneous charges which are non recoverable for WAAM and refunding them causes any loss to WAAMPromotion of the Services.

8. Reseller shall vigorously promote Services within the Territory consistent with good business practices as determined by Reseller. Representations.

9. Reseller shall not make any false or misleading representations to customers or others regarding WAAM or the Services.  Reseller shall not make any representations, warranties or guarantees with respect to the specifications, features or capabilities of the Services that are not consistent with the Documentation accompanying the Services or WAAM’s literature describing the Services, including the limited warranty and disclaimers.

2.    ADDITIONAL WAAM OBLIGATIONS

1. Technical Information and Training.
   WAAM will provide technical information and training to Reseller personnel as described in the Technical Training Program.  Training shall take place at a location or locations and at such time or times as mutually agreed upon by the parties. Additional Support.

2. WAAM may agree to provide Reseller with additional maintenance services and support pursuant to a separate agreement between the Parties.

3.    CONFIDENTIALITY

1. During the course of this Agreement, each Party may disclose to the other certain proprietary information (both patentable and unpatentable, including but not limited to, trade secrets, know how, software, source codes, techniques, future product plans, marketing plans, customers, inventions, discoveries, improvements, and research and development data) (“Confidential Information”) of a character regarded by the disclosing party as confidential.  Each Party and each of its employees or consultants to whom disclosure is made shall hold all Confidential Information and the terms of this Agreement in confidence and shall not disclose such information to any third party or apply it to uses other than the receiving party’s performance of this Agreement.Such Confidential Information, if disclosed in writing shall be marked or identified as confidential or a similar designation, or if orally or visually disclosed, shall be identified as the confidential information of the disclosing party at the time of disclosure.Obligation of Confidentiality.

2. Each Party agrees that for a period of five years from receipt of Confidential Information from the other Party hereunder, it shall use the same degree of care that it utilizes to protect its own information of a similar nature, but in any event not less than reasonable care, to prevent the unauthorized use or the disclosure of such Confidential Information to third parties.  The Confidential Information shall be disclosed only to employees and consultants of a recipient with a “need to know” who are instructed to and agree in writing to not disclose third party Confidential Information, and who shall use the Confidential Information only for the purpose set forth above.  A recipient may not alter, decompile, disassemble, reverse engineer, or otherwise modify any Confidential Information received hereunder and the mingling of the Confidential Information with information of the receiving party shall not affect the confidential nature or ownership of the same as stated hereunder.Ownership of Confidential Information.

3. All Confidential Information is, and shall remain, the property of the disclosing party.  Nothing herein shall be construed as granting or conferring any rights by license or otherwise in the Confidential Information except as expressly provided herein.  A receiving party hereunder acquires only a limited right to use the Confidential Information solely for the purpose of performing its obligations under this Agreement.Return of Confidential Information.

4. Upon the written request of the disclosing party, or upon the expiration or termination of this Agreement, the receiving party shall promptly return all copies of the Confidential Information, in whatever form or media, to the disclosing party or, at the direction of such party, destroy the same.  The receiving party shall certify in writing to the other such return or destruction within ten days thereafter.Exceptions to Obligation of Confidentiality.

5. This Agreement shall impose no obligation of confidentiality upon a receiving party with respect to any portion of the Confidential Information received hereunder which is: (a) now or hereafter, through no unauthorized act or failure to act on receiving party’s part, generally known or available; (b) lawfully known to the receiving party without an obligation of confidentiality at the time receiving party receives the same from the disclosing party, as evidenced by written records; (c) hereafter lawfully furnished to the receiving party by a third party without restriction on disclosure; (d) furnished to others by the disclosing party without restriction on disclosure; or (e) independently developed by the receiving party without use of the disclosing party’s Confidential Information.  Nothing in this Agreement shall prevent the receiving party from disclosing Confidential Information to the extent the receiving party is legally compelled to do so by any governmental investigation or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the receiving party shall (i) assert the confidential nature of the Confidential Information to the agency, (ii) immediately notify the disclosing party in writing of the agency’s order or request to disclose and (iii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.Confidentiality of this Agreement.

6. Reseller shall not disclose, advertise or publish the terms or conditions of this Agreement without the prior written consent of WAAM.

4.    TRADEMARKS

1. WAAM Trademarks.
   “WAAM Trademarks” means those trademarks, trade names, service marks, slogans, designs, distinctive advertising, labels, logos, and other trade-identifying symbols as are or have been developed and used by WAAM or any of its subsidiaries or affiliate companies anywhere in the world.Use of WAAM Trademarks.

2. Reseller acknowledges that all WAAM Trademarks are vested in WAAM absolutely.  WAAM authorizes Reseller to use the WAAM name or WAAM Trademarks associated with the Services and services which Reseller is authorized to sell or license within the Territory in the normal course of business during the term of this Agreement for the sole purpose of the sale and distribution of Services and services hereunder. Reseller shall comply with WAAM’s then current trademark usage and style guidelines when using the WAAM Trademarks.  Reseller shall not use WAAM Trademarks for any other purpose and only in such manner as to preserve all rights of WAAM.  When using WAAM Trademarks, Reseller must indicate that WAAM is the owner of the WAAM Trademark(s) and that Reseller is using the WAAM Trademarks with permission from and on behalf of WAAM.  Reseller acquires no right to WAAM Trademarks by its use. Protection of WAAM Trademarks.

3. Reseller shall not remove, alter or modify the serial or identification numbers, labels, WAAM Trademarks or other trade-identifying symbols from Services sold or licensed by WAAM under this Agreement.  Reseller shall provide all reasonable assistance, including execution of documents as requested by WAAM to protect its trademark rights in the Territory.Legal Action.

4. WAAM shall have the sole and exclusive right to bring legal action in the Territory for infringement with respect to WAAM Trademarks.  Reseller shall assist WAAM in such legal proceedings.  Reseller shall notify WAAM promptly of any known infringements of WAAM Trademarks.

5.    INDEMNITY BY RESELLER

1. Reseller shall indemnify and defend WAAM against all claims, suits, losses, expenses, and liabilities (including WAAM’s reasonable attorney’s fees) for personal injury, death, and tangible property damage made against WAAM as a result of the negligence, intentional wrongful acts, omissions where there is a duty to act, or misrepresentations of Reseller or any person for whose actions Reseller is legally liable. Reseller shall be solely responsible for any claims, warranties or representations made by Reseller or its employees or agents which differ from the warranty provided by WAAM in the limited warranty included in the packaging of each Product sold or licensed hereunder, or which differ from written documentation provided by WAAM.

6.    LIMITATION OF LIABILITY

1. IN NO EVENT, REGARDLESS OF THEORY, SHALL WAAM BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OR CORRUPTION OF DATA OR SOFTWARE, EQUIPMENT FAILURE OR DAMAGE, SECURITY BREACH, NETWORK INTRUSION, OR NETWORK DOWNTIME OR ANY OTHER TYPE OF FAILURE, LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF ITS SERVICES OR SERVICES.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, WAAM’S MAXIMUM LIABILITY HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE SERVICES OR SERVICES PURCHASED OR LICENSED DURING THE TERM OF THIS AGREEMENT.  RESELLER HAS ACCEPTED THE DISCLAIMER OF LIABILITY AS PART OF A BARGAIN TO LOWER THE PRICE OF THE SERVICES OR SERVICES AND UNDERSTANDS THAT THE PRICE OF THE SERVICES OR SERVICES WOULD BE HIGHER IF WAAM WERE REQUIRED TO BEAR ADDITIONAL LIABILITY.  THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

7.    MISCELLANEOUS

1. Notices.
   Notices shall be given in writing to the addresses on the Reseller Cover Page, or to such other address as shall be given by either party to the other in writing.  Notices regarding price changes, discount changes, product discontinuance, product changes, and logistics center or order processing changes may be made via email to the person(s) specified by Reseller from time to time.  Any notice involving non-performance, termination, or renewal shall be sent by recognized overnight courier or within the United States, via certified mail, return receipt requested.  All other notices may be sent by (i) recognized overnight courier or (ii) by fax or email and confirmed by first class mail.  All notices shall be deemed to have been given and received on the earlier of actual delivery or three days from the date of postmark.Entire Agreement.

2. This Agreement  and the other Schedules attached to the Reseller Cover Page constitute the entire agreement between the Parties with respect to Services and Services purchased and sold hereunder and supersede all prior written or oral understandings or agreements between the Parties.  No modification of this Agreement or waiver of rights under this Agreement will be effective unless in writing signed by each Party. Waiver of Breach.

3. Any waiver of a default in performance hereunder shall be deemed a waiver of the particular instance only and shall not be deemed a consent to any continuing default.  The exercise of any right or remedy provided in the Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.  If any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties and the remaining provisions shall in no way be affected thereby.Governing Law.

4. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND ALL DISPUTES HEREUNDER SHALL BE GOVERNED BY THE LAWS OF NEW SOUTH WALES WITHOUT REGARD TO ITS CONFLICT OF LAW RULES. Dispute Resolution.

5. The Parties will attempt in good faith to promptly resolve any dispute, controversy, or claim (“Dispute”) arising out of or relating to this Agreement through negotiations between the parties before resorting to other remedies available to them.  Any such Dispute shall be referred to appropriate senior executives (e.g. director or V.P. level) of each party who shall have the authority to resolve the matter.  Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the purpose of settlement and shall be exempt from discovery or production and shall not be admissible in subsequent mediation, other alternate dispute resolution (“ADR”), or litigation.  If such senior executives are unable to resolve the Dispute within 30 days from the date of the written communication requesting referral to such senior executives, and either Party wishes to pursue its rights relating to such Dispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of a local Arbitration Association within 30 days after written notice by one party to the other demanding non-binding mediation.  Neither Party may unreasonably withhold consent to the selection of a mediator or the location of the mediation.  Both Parties will share the costs of the mediation equally, except that each Party shall bear its own costs and expenses, including legal fees, witness fees, travel expenses, and preparation costs.  The Parties may also agree to replace mediation with some other form of non-binding or binding ADR. Any Dispute regarding the following is not required to be negotiated or mediated: non-payment or late payment; breach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where interim relief from the court is sought to prevent serious and irreparable injury to one of the Parties or to others.Subcontractors.

6. Reseller agrees that WAAM may employ subcontractors to provide all or a part of the Services under this Agreement.  The use of subcontractors will not release WAAM from any responsibility to perform under this Agreement, and WAAM remains liable for its subcontractors’ compliance with all provisions of this Agreement.

8.    (DEDICATED) HOSTING

1. Security.
   Any "denial of service" attack, any attempt to breach authentication or security measures, or any unauthorised attempt to gain access to any other account, host or network is prohibited, and will result in immediate service termination, which may be without notice.E-mail.

2. Using any WAAM account or server to send duplicative, unsolicited e-mail messages (commercial or otherwise), or to collect the responses from unsolicited e-mail, is prohibited. Conduct in connection with e-mail that is an obvious nuisance (such as "mail bombing") or that would be unlawful in other contexts (for example, threats, harassment, defamation, obscenity, or software piracy) is prohibited. Adult Material.

3. WAAM does not allow material which may be viewed as offensive including pornographic material to be distributed from our servers.Forgery of Identity.

4. Falsifying addressing information or otherwise modifying headers to conceal the sender's or recipient's identity, for the purpose of circumventing this Policy, is prohibited. This provision is not intended to disallow the use of aliases or auto responders for any legitimate purpose.Copyright, Privacy, and Intellectual Property.

5. Using a DEDICATED HOSTING account to commit, aid or abet any violation of copyright or intellectual property law is prohibited. This prohibition includes publishing a private e-mail message to third parties, by any means, without the express prior consent of the authorCo-operation with Other Providers.

6. Using WAAM facilities to engage in activities that violate the Terms of Service of any network access provider is prohibited. For example, sending unsolicited commercial e-mail through WAAM facilities to the subscribers of any Internet or online service provider that disallows unsolicited commercial e-mail is prohibited.Consequences of Violation.

7. Violation of this Policy by a WAAM customer may result in temporary suspension or permanent termination of service, at WAAM sole discretion. WAAM does not issue service credits for any outages incurred through service disablement resulting from Policy violations.

9.    MODIFICATION OF THESE TERMS OF USE.

1. WAAM Sales Portal reserves the right to change the terms, conditions, and notices under which the WAAM Sales Portal Web Site is offered, including but not limited to the charges associated with the use of the Qarbon LMS Sales Portal Web Site.

10.   LINKS TO THIRD PARTY SITES.

WAAM Sales Portal Web Site may contain links to other Web Sites ("Linked Sites"). The Linked Sites are not under the control of WAAM Sales Portal and WAAM Sales Portal is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. WAAM Sales Portal is not responsible for webcasting or any other form of transmission received from any Linked Site. WAAM Sales Portal is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by WAAM Sales Portal of the site or any association with its operators.