Definitions and interpretation
Definitions
In this Agreement:
Additional Project Cost has the meaning given in clause 5.3(b).
Additional Tactical Project Scope has the meaning given in clause 15.
Additional Tender or Contract Scope Success Fees means the Additional Tender or Contract Scope Success Fees (if any) as defined in clause 5.3(a).
Agreement means this document comprising the Details (including the Market Scope), the KDM Advantage T&Cs and any schedules, annexes and attachments thereto.
APP means an Australian Privacy Principle as defined in the Privacy Act.
Business Day means any day except a Saturday, Sunday or public holiday in Western Australia.
Claims means all demands, claims, proceedings, penalties, ﬁnes and liability (whether criminal or civil, in contract, tort or otherwise).
Client means the client as specified in the Details.
Conﬁdential Information means all trade secrets and all ﬁnancial, marketing, business and technical information, ideas, concepts, know-how, technology, processes and knowledge which is conﬁdential or of a sensitive nature including the existence and terms of this Agreement, but excluding information which:
a Party creates (whether alone or jointly with another person) independently of the disclosing Party and without use or knowledge of the information disclosed to it by the disclosing Party under this Agreement;
is rightfully known by the other Party (as shown by its written record) prior to the date of disclosure by the disclosing Party;
is or becomes available to the other Party from a third party lawfully in possession of the information and with the lawful power to disclose the information to that Party;
a Party is required by law to disclose; or
is public knowledge (other than as a result of a breach of confidentiality by the other Party or any of its permitted discloses).
Consumer Price Index means the Consumer Price Index published by the Australian Bureau of Statistics (All Groups Index – Perth) or if the Consumer Price Index is discontinued, an index which reflects the increase in the cost of living for the City of Perth.
Targeted Communication Pieces means all Targeted Communication Pieces (Raw Footage, photos, videos, graphics, copy and/or data) produced by Yappy for and/or on behalf of the Client as part of the Services during the Term, an overview of which may be included in the Market Scope.
Data means all data, information and all data and information related Targeted Communication Pieces produced or created by Yappy in the course of providing the Services.
Data Incident means an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information that Yappy has collected, held, used or disclosed in the course of or relating to this Agreement.
Details means the KDM Advantage Details at page 1 of this Agreement.
Eligible Data Breach means an eligible data breach as that term is defined in the Privacy Amendment (Notifiable Data Breaches) Act 2016 (Cth), occurring on or after 22 February 2018.
End Date means the end date specified in the Market Scope.
Fees means the fees specified in the Details and as calculated and set out in the Market Scope, calculated in accordance with the Schedule (if applicable) or otherwise as agreed between the Parties.
Go Live Date means the go live date (if any) as specified in the Market Scope.
GST means any applicable federal, state and local excise, sales, use, Goods and Services Tax, Value Added Tax, and transfer taxes and similar charges.
Initial Term means the period commencing on the Start Date and ending on the final date of the period set out in the Details, subject to early termination under clause 13 and any variation under clause 15.
Intellectual Property means all intellectual, industrial and other proprietary rights in and related to the Targeted Communication Pieces and/or Services, whether in existence or arising now or in the future anywhere in the world including, without limitation:
patents, patent applications, patent utility models, copyrights, registered or unregistered trade marks and service marks, trade names, brand names, indications of source or appellations of origin, eligible layout rights, registered or unregistered designs and commercial names and designations;
all inventions, discoveries, trade secrets, know-how and Conﬁdential Information;
all other rights resulting from intellectual activity in the industrial, scientiﬁc, literary and artistic ﬁelds whether industrial or commercial, including moral rights;
all letters patent, deeds of grant, certiﬁcates or documents of title for anything referred to in paragraphs (a) (b) or (c) of this definition, including the right to apply for any such rights, and all media in which anything referred to in those paragraphs is stored or embodied; 
all Data; and
all enhancements, modiﬁcations or developments to anything referred to in paragraphs (a) to (e).
Invoice means a tax invoice, including ABN and bank details.
Invoice Date means the later of the date on the Invoice that the Client receives from Yappy, or the actual date that the Client receives the Invoice.
KDM Advantage T&Cs means these terms and conditions.
Losses means all losses including ﬁnancial losses, damages, legal costs and other expenses of any nature whatsoever.
Market Scope means the Market Scope, being the Client’s request for Services, as set out in the Details and as may be varied from time to time in accordance with this Agreement with subsequent additional Market Scopes.
Market Scope Variations has the meaning given in clause 15.
Media Costs means the cost of digital media placements on various digital platforms, and third party data licences for targeting, used during the Term.
Monthly Management Fees means the Monthly Management Fees as set out in the Market Scope.
Parties means Yappy and the Client, and Party means either one of them.
Personal Information has the meaning given in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth) as amended from time to time.
Production Costs means the costs of producing all Targeted Communication Pieces required for use during the Term including but not limited to; planning and administration, ﬁlming and photography, editing and post production, animation and graphics, talent requirements and rights use purchases.
Scope means the relevant Market Scope(s) and/or Tactical Project Scope(s) (as applicable).
Raw Footage means any and all unedited and/or unoptimised footage generated by Yappy as part of Yappy’s provision of Services.
Sensitive Information has the meaning given in the Privacy Act.
Services means the services of the type described in the Scope, which description in the Scope is a guide only.
Special Conditions means any special conditions as set out in the Scope, if any.
Start Date means the start date speciﬁed in the Scope.
Subsequent Term has the meaning given in clause 17.1.
Term means the Initial Term and any Subsequent Term, subject to early termination under clause 13 and any variation under clause 15.
Variation means the relevant Market Scope Variation(s) and/or Additional Tactical Project Scope(s) (as applicable).
Yappy’s Personnel means any person or persons that Yappy designates to perform the Services on Yappy’s behalf.
Interpretation
In this Agreement: 
words importing the singular number include the plural number and vice versa;
words importing persons include ﬁrms, companies and corporations and vice versa;
references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
references to a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
no rule of construction will apply to a clause to the disadvantage of a Party merely because that Party put forward the clause or would otherwise beneﬁt from it;
any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
the headings to the clauses and schedules of this Agreement are not to aﬀect the interpretation; and
the word “including” (and related forms including “includes”) means “including without limitation”.
market scope
Yappy will perform the Services from the Start Date to the End Date, unless this Agreement is terminated earlier (or extended) in accordance with its terms. 
No amendment may be made to the Market Scope except in accordance with clause 15.
Each Market Scope Variation is part of this Agreement and does not form a separate contract to it.
If there is an inconsistency between these KDM Advantage T&Cs and the terms set out in the Scope, the Scope (and any Special Conditions therein) prevails to the extent of the inconsistency. 
Services
Yappy will provide the Services to the Client in consideration for the Client paying the Fees to Yappy.
Yappy will endeavour to complete the Services, including the provision of Targeted Communication Pieces (if applicable), by the End Date. 
The Services will be performed with due care and skill by appropriately qualiﬁed and competent Yappy’s Personnel that Yappy may choose as most appropriate to carry out the Services.
Location
Yappy will provide the Services in places and locations as Yappy considers appropriate, in consultation with the Client, to the type and nature of the requirements of the Services.
Fees
Payment of Fees
In consideration of the provision of the Services, the Client will pay Yappy the Fees in accordance with this Agreement.
The Client acknowledges that the Fees are exclusive of any GST that may be charged by Yappy to the Client and Yappy is entitled to add on GST.
Terms of Payment
Monthly Management Fees payable monthly in advance as outlined in the Scope (Monthly Management Fees) shall be:
initially two invoices are issued upon ﬁnalisation of the signed Agreement, one payable in seven (7) days of the Invoice Date and one payable twenty-eight (28) days of the Invoice Date;
subsequently invoices will be issued for each calendar month for the duration of the Agreement and are payable by the Client to Yappy within seven (7) days of the Invoice Date;
Yappy is not required to itemise the media costs, production costs or data costs to the Client, which represent Yappy’s cost of delivering the agreed scope of the project as agreed between the Parties.
Failure to make payment on time will delay the commencement and performance of the Services.
Additional Tactical Project Scope 
Additional Tender or Contract Scope Success Fees as outlined and agreed in the relevant Additional Tactical Project Scope (Additional Tender or Contract Scope Success Fees)
The Client must notify Yappy within seven (7) days of conﬁrmation of the outcome of the tender or contract named in the relevant Additional Tactical Project Scope (Additional Tender or Contract);
For such successful Additional Tender or Contract, Yappy will raise an Invoice for the agreed Additional Tender or Contract Success Fee amount and submit this to the Client;
payment of success fees will be due within fourteen (14) days of the Invoice Date.
If for any reason an awarded tender or contract is cancelled prior to payment of the Additional Tender or Contract Scope Success Fees to Yappy, the Client agrees to pay 50% of the Additional Project Cost as outlined in the Additional Tactical Project Scope (Additional Project Cost).
Any additional tenders or contracts as specified in the relevant Additional Tactical Project Scope (if applicable) which are awarded after the expiry or termination of the Agreement for which Yappy has been providing Services will be eligible for payment of Additional Tender or Contract Scope Success Fees to Yappy if the tender or contract is awarded to the Client regardless of the date of award.
Late cancellation of targeted communication piece production sessions
If the Services include a Targeted Communication Pieces production session with Yappy (Targeted Communication Piece Production Session) and for any reason the Client cancels the Targeted Communication Piece Production Session with less than three (3) Business Days’ written notice to Yappy, the Client must pay Yappy the full Fee for the Targeted Communication Piece Production Session. Such fee must be paid by the Client prior to the Client booking a further Targeted Communication Piece production session.  
Delay to Successful Additional Tenders or Contracts
If for any reason an awarded tender or contract is delayed, the Client is still liable for payment of the Additional Tender or Contract Scope Success Fees.
For any awarded tender or contract delayed for more than six (6) months, by agreement in writing between the Parties, the payment terms may be extended by up to six (6) months and the Fees paid in instalments with the ﬁrst instalment due no later than seven (7) days after the Invoice Date.
Tax Invoice
In this clause 5, terms which are deﬁned in the A New Tax System (Good and Services Tax) Act 1999 (Cth) have the same meaning as those terms have in that Act (GST Law).
Yappy will provide the Client with a suitably formatted Invoice in accordance with the GST Law in relation to fees payable under this clause 5.
Costs and disbursements
Yappy may charge for additional costs and expenses incurred in performing the Services as speciﬁed in this Agreement.
Unless otherwise agreed in writing between the Parties, the Fees exclude the following costs (Additional Costs): 
where performance of the Services requires travel outside of the Perth metropolitan area, the cost of hotel, subsistence, travelling (including flights, car hire and ride share) and any other ancillary expenses reasonably incurred by the individuals whom Yappy engages in connection with the Services; and
the cost to Yappy of any materials or services procured by Yappy from third parties for the provision of the Services.
The Additional Costs will be charged to the Client at cost plus a 5% administration fee (calculated on the Additional Costs) and will be payable by the Client monthly in arrears following Yappy issuing an Invoice for the relevant Additional Costs.
Where reasonably practicable, any Additional Costs will be pre-costed and approved by both Parties in writing prior to Yappy incurring the relevant Additional Costs. 
Failure to pay
If the Client does not make a payment by the date stated in an Invoice or as otherwise provided for in the Agreement, Yappy is entitled to do any or all of the following:
charge interest on the outstanding amount at the rate of 2.5% per month, accruing daily; and 
not perform any further Services (or any part of the Services).
Review of Fees
On each anniversary of the Start Date (Fee Review Date), the Fees will increase by whichever of the two are the greatest. CPI + 5% or 10%.
Client’s obligations
The Client must:
co-operate with, and ensure that its staﬀ and agents cooperate with Yappy as Yappy reasonably requires; and
provide to Yappy in a timely manner all documents, information, items and materials in any form (whether owned by the Client or by a third party) that Yappy reasonably requires in connection with the Services.
The Client must, at no charge to Yappy, provide to Yappy and Yappy’s Personnel access to the Client’s premises and other facilities as required for Yappy to perform the Services.
prior to the Services being performed, the Client must inform Yappy of all health and safety and security requirements that apply at any premises, site or location where the Services will be performed, and the Client is responsible for ensuring all personnel who are filmed or photographed are adhering to the Client’s health and safety and security requirements. The Client agrees that if this clause is not adhered to (without limiting Yappy’s other recourse under this agreement), the Client is responsible for the cost of any re-work or re-performance of the Services by Yappy.
The Client:
must identify in the Scope a manager who is appointed in respect of the relevant Works to be performed (Client Representative); and
warrants that the Client Representative has authority to bind the Client on all matters relating to the relevant Services under the Scope (including by signing any Scope Variation).
If Yappy’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, contractors, subcontractors, consultants or employees then, Yappy will be allowed an extension of time to perform its obligations equal to the delay caused by the Client, without prejudice to any other right or remedy Yappy may have.
No partnership or employment relationship
Nothing in this Agreement constitutes the relationship of employer and employee between the Client and Yappy or between the Client and Yappy’s Personnel and it is the express intention of the Parties that any such relationships are denied. Further, this Agreement does not constitute or imply any partnership, joint venture, agency, ﬁduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
Use of subcontractors
Yappy may use other persons to provide some or all of the Services subject to any work undertaken by any of Yappy’s subcontractors being undertaken to the same standard as stated in this Agreement. Yappy is responsible for the work of any such subcontractors.
Intellectual Property & DATA
Intellectual Property Ownership and Registration
The Parties agree that this Agreement does not assign or alter the ownership of any Intellectual Property of either Party existing at the Start Date, unless otherwise agreed in writing by the Parties.
the Client agrees that Yappy owns the Intellectual Property and that the Client will assign any new Intellectual Property to Yappy. The Client consents to Yappy applying for the registration of the Intellectual Property. The Client agrees to sign, execute and complete all documents and do all things that may be necessary to complete the assignment contemplated by this clause 9.1(b), including without limitation procuring that its employees, directors, agents or contractors sign, execute and complete all necessary documentation.
the Client must not attempt to seek any interest in the Intellectual Property or assist any other person or entity to obtain such an interest. The Client must not seek to register nor assist a third party to register any trade mark, domain name or business name which is similar to or the same as any of Yappy’s Intellectual Property. The Client will not challenge the validity of any registration associated with the Services or the Intellectual Property, nor will it assist any third party to do so.
The Client acknowledges and agrees that it has no rights to use the Intellectual Property (which includes the Intellectual Property in and related to the Targeted Communication Pieces and/or the Services) after the Term, unless expressly agreed in writing with Yappy
Licence to the Intellectual Property
The Client hereby grants Yappy a non-exclusive, royalty-free, transferable licence (with the right to sub-licence) during the Term, to use any background intellectual property owned by or licensed by the Client as at the Start Date (as contemplated by clause 9.1(a)), to the extent necessary and for the purpose of the performance of the Services.
the Client must not use the Intellectual Property or allow the Intellectual Property to be used for any purpose beyond the scope of this Agreement and acknowledges that such use or allowance would infringe Yappy’s Intellectual Property.
Unless expressly provided for otherwise in this Agreement, the Client must return all materials containing Yappy’s Intellectual Property (including any Targeted Communication Pieces) immediately upon request or termination or expiry of this Agreement.
Enforcement
The Client must notify Yappy immediately upon becoming aware of any suspected or actual infringement by any person of the Intellectual Property rights. Yappy is solely responsible for enforcement of the Intellectual Property rights and may take reasonable action, at its own expense, in relation to any suspected infringement of the Intellectual Property. The Client must provide reasonable assistance and documents required or reasonably requested by Yappy in relation to proceedings that Yappy may take against any person for infringement of the Intellectual Property rights, and the Client agrees to be joined to such action where reasonably necessary and required by Yappy.
Improvements
The Client agrees that Yappy will own any improvements, modiﬁcations and enhancements to the Intellectual Property which arise during the Term and that the Client assigns any and all rights to any such improvements, modiﬁcations and enhancements to Yappy which assignment takes eﬀect immediately as and when such rights are created or acquired by the Client.
Moral Rights
The Client consents to Yappy doing any act (including making any material alterations) or omitting to do any act which might otherwise infringe any Moral Rights of the Client anywhere in the world, in respect of the Intellectual Property. The Client will procure that each author of any materials created under this Agreement consents in writing to waive their Moral Rights in the materials for the beneﬁt of Yappy. In this clause Moral Rights means any rights described in Part IX of the Copyright Act 1968 (Cth) and includes the right of attribution of authorship, the right not to have authorship falsely attributed, the right of integrity of authorship, and any analogous rights which exist now or in the future.
Confidentiality
Each Party must retain in strict conﬁdence the Conﬁdential Information of the other Party and will not disclose it to any third party without the disclosing Party’s prior written consent, or as authorised by this Agreement.
The Conﬁdential Information of a Party must only be used by the other Party in the course of performing its responsibilities under this Agreement or to the extent that the Party is authorised to use the Conﬁdential Information by this Agreement and will be disseminated only on a need- to-know basis among its employees and agents that are subject to obligations of confidentiality at least equivalent to those of this Agreement
A Party will be responsible for any breach of obligations of confidentiality by its employees and agents. 
At the End Date, all Conﬁdential Information of a Party must be returned to the respective Party.
The obligations under this clause 10 survive termination or expiry of this Agreement.
Privacy & data incidents
Each Party warrants to the other Party that the first mentioned Party complies with and will continue to comply with, its obligations under the Privacy Act and all other applicable privacy laws.
If Yappy collects, holds, uses or discloses Personal Information in the course of or relating to this Agreement, Yappy must:
handle all Personal Information in accordance with Yappy’s Privacy Policy;
only use Personal Information for the purpose of performing its obligations under this Agreement; and
not disclose Personal Information to any third party (including any subcontractor) without the Client’s prior written consent or as required by law.
The Client warrants that it:
will not provide any Sensitive Information to Yappy unless that information is necessary for Yappy to perform its obligations under this Agreement and then only with Yappy’s specific written consent; and
has:
made all necessary notifications required by APP 5, on behalf of itself and Yappy to; and
obtained all necessary consents required by APP 6 from,
the individuals whose Personal Information it is disclosing to Yappy in the course of this Agreement to enable to Yappy to lawfully use the Personal Information and perform its obligations in accordance with this Agreement.
If Yappy becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred, Yappy must:
immediately take reasonable steps to contain the Data Incident and prevent any further serious harm to affected individuals;
immediately notify the Client in writing stating the:
nature and details of the Data Incident;
specific Personal Information affected; and
actions taken by Yappy at clause 11(d)(i);
identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within 20 days of becoming aware of the Data Incident (Data Incident Investigation);
provide a copy of the report of the Data Incident Investigation in clause 11(d)(vi) to the Client on completion;
engage in discussions with the Client regarding:
(A) the conduct and outcomes of the Data Incident Investigation; and
(B) in the case of an Eligible Data Breach, whether the Client or Yappy will make the relevant notifications under the Privacy Act; and
(C) where it is agreed by the parties that Yappy is making the relevant notifications, the Client must approve the notifications before they are made (such approval to be given promptly and not to be unreasonably withheld).
Each Party will ensure that its employees, contractors or advisors who are required to handle Personal Information in the course of this Agreement are made aware of the obligations of that Party in this clause 11.
Each Party is responsible for the acts and omissions of its respective personnel (including subcontractors and advisors), and a breach by any such personnel is a breach by that Party.
The Client:
acknowledges that Yappy is reliant on the Client for direction as to the extent to which Yappy is entitled to use Personal Information disclosed to it in the course of and for the purpose of this Agreement; and
indemnifies Yappy for any claim brought by any third party in connection with any act or omission by Yappy in relation to a third party’s Personal Information to the extent that such act or omission resulted directly from the Client’s instructions or the Client’s breach of this Agreement.
Warranties, liability and indemnities
Warranties
Yappy warrants that it will use reasonable care and skill in performing the Services and that the Services will be of quality workmanship and in conformity with the Agreement.
Insurances
Yappy must take out all insurance required by law including:
worker’s compensation insurance as prescribed by law for Yappy’s Personnel; and 
public and products liability insurance.
Employees and subcontractors
Yappy is solely responsible for the payment to Yappy’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other beneﬁts to which they are entitled as Yappy’s employees or agents.
Compliance with all laws
During the Term, Yappy must in the performance of the Services comply at Yappy’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any commonwealth, state and local government departments, bodies, and public authorities or other authority.
No warranties in relation to completion
To the maximum extent permitted by law, Yappy provides no warranty that any result or objective of the performance of the Services can or will be achieved or attained at all or by the End Date or any other date, whether stated in this Agreement or elsewhere.
Indemnity
The Client must indemnify and hold Yappy harmless from and against all Claims and Losses arising from loss, damage, liability, injury to Yappy, its employees and third parties, infringement of third party Intellectual Property, or third party Losses by reason of or arising out of any information supplied to the Client by Yappy, its employees or suppliers, or supplied to Yappy by the Client within or without the scope of this Agreement.
Yappy indemniﬁes the Client and its directors, oﬃcers, agents and employees against all Claims and Losses to the extent that the Client’s Claims and Losses arose directly out of the gross negligence or misconduct or material breach of this Agreement by Yappy or Yappy’s Personnel in the performance of the Services.
Limitation on liability
Subject to clause 12.7(c), the liability of Yappy under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Client to Yappy under this Agreement.
Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suﬀered by that other Party of special, indirect or consequential nature arising under or in connection with this Agreement including any economic loss or other loss of turnover, proﬁts, business, reputation or goodwill.
Nothing in this Agreement limits or excludes either Party’s liability where liability cannot be limited or excluded by law.
No reliance
The Client acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
Survival of obligations
The obligations under this clause 11 survive termination or expiry of this Agreement.
Termination
Either Party may terminate this agreement by notice in writing to the other if the Party notiﬁed: 
fails to observe any material term of this Agreement; and
fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of thirty (30) days’ notice of the breach being given in writing by the notifying Party to the other Party.
Yappy may terminate this Agreement if:
the Client enters into a deed of arrangement or an order is made for it to be wound up;
an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
The Client may, at its discretion, pay to Yappy the equivalent amount of the fees payable by the Client to Yappy during the notice period in lieu of any notice period relating to termination of this Agreement under this clause 13.
Upon termination of this Agreement any fees, expenses or reimbursements payable by the Client to Yappy in respect of any period prior to the End Date must be paid by the Client within 7 days after the End Date.
The expiry or termination of this Agreement will not aﬀect any accrued rights or obligations of either Party existing at the date of expiry or termination.
NON-SOLICITATION
The Client must not, without the prior written consent of Yappy, at any time from the date on which any Services commence to the expiry of:
18 months; or if that period is not enforceable,
12 months; or if that period is not enforceable,
6 months,
after the completion of such Services, canvass, solicit, interfere with or entice away, or attempt to canvass, solicit, interfere with or entice away, from Yappy or employ or engage or attempt to employ or engage any person who is, or has been, engaged as an employee, consultant, contractor or subcontractor of Yappy in the provision of such Works in the 12 month period prior to completion of the Works.
variations
15.1 	Market Scope Variations
Subject to clause 15.1(e), either Party may propose changes to the scope or execution of the Market Scope but no proposed changes shall come into effect and this Agreement is not varied until a relevant Market Scope Variation is signed by both Parties. A Market Scope Variation is a document which sets out the proposed changes and the effect that those changes will have on:
the Services;
the Fees;
the timetable for the Services; and
any of the other terms of the Market Scope.
Subject to clause 15.1(e), if Yappy wishes to make a change to the Market Scope it must provide a draft Market Scope Variation to the Client.
If the Client wishes to make a change to the Market Scope:
subject to clause 15.1 (e), it must notify Yappy and provide as much detail as Yappy reasonably requires of the proposed changes, including the timing of the proposed change; and
Yappy must, as soon as reasonably practicable after receiving the information at clause 15.1(c)(i)15(c)(i), provide a draft Market Scope Variation to the Client.
If the Parties:
agree to a Market Scope Variation, they must sign it and that Market Scope Variation will amend the Market Scope; or
are unable to agree a Market Scope Variation, either Party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 16.
The Parties acknowledge and agree that any change to the Market Scope cannot be a decrease in the scope of Services and/or a decrease in the Fees.
15.2	Additional Tactical Project Scope
Subject to clause 15.2(e), either Party may propose to enter into an Additional Tactical Project Scope for additional Services (Additional Tactical Project Scope) but it shall not come into effect and this Agreement is not varied until the Additional Tactical Project Scope is signed by both Parties. A Additional Tactical Project Scope is a document which sets out the:
the additional Services;
the Additional Tactical Project Fees;
the timetable for the additional Services; and
any of the other terms.
The Parties acknowledge and agree that, once an Additional Tactical Project Scope is signed, it cannot be varied to decrease the scope of such additional Services and/or a decrease in the Additional Tactical Project Fees.
disputes
A Party claiming that a dispute has arisen from or in connection with this Agreement (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that Party has attempted to resolve the Dispute in accordance with this clause 16. Compliance with this clause is a condition precedent to the right of any Party to commence litigation or arbitration arising from, or in connection with, the Dispute.
A Party claiming that the Dispute has arisen must give a written notice to the other Party or Parties in accordance with clause 17.9, specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.
Following service of the Dispute Notice, an authorised representative of the Client and an authorised representative of Yappy must meet promptly and attempt in good faith to resolve the Dispute. If the authorised representative of the Client and authorised representative of Yappy have for any reason been unable to resolve the Dispute within seven (7) days of service of the Dispute Notice, the Dispute must be referred to a Director of the Client and a Director of Yappy who must attempt in good faith to resolve it. If such Directors are for any reason unable to resolve the Dispute within seven (7) days of it being referred to them, the Parties will attempt to settle it in good faith by mediation administered by the Australian Disputes Centre (ADC), in accordance with the ADC Guidelines for Commercial Mediation applicable at the time the matter is referred to the ADC and which are deemed to be incorporated into this Agreement. The costs of any mediator shall be borne by the Parties in equal shares notwithstanding the outcome of any mediation.
This clause 16 survives termination or expiry of this Agreement.
General
Renewal
The Parties agree that the Initial Term will continue to automatically renew for subsequent terms equivalent to the period of the Initial Term (each a Subsequent Term), unless a Party notifies the other Party in writing at least 60 days prior to the end of the Initial Term or the current Subsequent Term (as applicable), that the first mentioned Party wishes to terminate this Agreement.
Force majeure
Neither Party has any liability under or may be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement (other than the obligation to pay money) which result from circumstances beyond the reasonable control of that Party.
The Party aﬀected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. The performance of the affected obligations must be resumed as soon as practicable after circumstances causing the delay or failure in performance are removed or have ceased.
If such circumstances continue for a continuous period of more than two (2) months, either Party may terminate this Agreement by written notice to the other Party with such termination taking effect immediately.
Amendment
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Assignment
Subject to clause 17.4(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
Entire agreement
This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement. The Parties conﬁrm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
Waiver
No failure or delay by Yappy in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
Further assurance
Each Party to this Agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this Agreement or to facilitate the enforcement of its terms.
Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineﬀective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way aﬀect any other circumstances of or the validity or enforcement of this Agreement.
Notices
Any notice, consent, approval, demand or other communication to be given or made under this Agreement (unless otherwise provided):
must be in writing;
must be signed by or on behalf of the Party giving or making it;
may be given in any of the following modes:
by registered mail; or
by hand delivery,
with a copy of the notice provided to the other Party by email at the email address shown in this Agreement or later notified by the other Party from time to time; 
may be addressed, delivered or transmitted to the Party to receive it at its registered office or principal office for the time being, or at the address:
shown in this Agreement; or
later notified to the other Party from time to time.
shall be deemed to have been served:
if by post, on the Business Day next following the day of posting; or 
if by hand delivery, on the day of delivery if delivered before 5.00pm on a Business Day and otherwise on the Business Day next following.
No disparagement
The Parties agree not to make any adverse, critical or disparaging statements, allegations, publications or comments (whether expressly or by inference) with respect to the conduct of any other Party in any professional or personal capacity; or make any statement, comment or publication which does, or is likely to, bring the relevant Party (or aﬃliates of the Party) into disrepute or ridicule, in any way related to the Services or either Party’s business or anything in any way related to them.
Complaints
The Parties agree not to lodge or make or encourage or procure others to lodge or make any complaint against any other Party to any professional body, occupational association or any authority responsible for licensing, regulation or supervision of or in connection with the profession or occupation of such other Party where the subject matter of such complaint is in any way related to the Services or either Party’s business or anything in any way related to them.
Law and jurisdiction
This Agreement takes eﬀect, is governed by, and will be construed in accordance with the laws from time to time in force in Western Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Western Australia.