Digital Dialogue

1. DEFINITIONS
Meanings shall apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires:
“Authority” means any governmental or semi governmental, statutory or judicial body, instrumentality, department, commission, authority, tribunal, agency or other similar entity.  “Authorities” has a corresponding meaning.
“Charges” means all charges payable by the Customer in accordance with this Agreement.
“Claim” means any claim or cause of action in contract, tort or under statute or otherwise.
“Confidential Information” in relation to each separately named party means all information relating to each other separately named party, its business and the Services including, but not limited to:
(a) Personal Information;
(b) information contained in this Agreement or which is supplied by the one party to the other;
(c) information stipulated to be confidential or would reasonably be inferred to be confidential;
(d) trade secrets, know-how, techniques, business and marketing plans, projections, surveys, financial records, arrangements and agreements with third parties;
(e) customer information, information proprietary to customers, formulae, customer lists;
(f) designs, plans, models, and concepts not reduced to material form;
(h) all notes and other records (whether or not in material form) relating to the Confidential Information; and
(i) the fact that the parties have entered and/or will enter into any contemplated business transactions between them, including the terms of this Agreement.
“GST” includes any value added tax, consumption tax, gross receipts tax or any other tax or charge or impost of a similar nature payable in respect of goods and/or services supplied, consumed or otherwise in connection with this Agreement including any such tax levied charged or assessed under A New Tax System (Goods and Services) Tax Act 1999.
“Insolvency Event” means with respect to a party, the happening of any of the following events:
(a) an application is made to a court for an order or an order is made that the party be wound up;
(b) an application is made to a court for an order appointing a liquidator or provisional liquidator in respect of the party, or one of them is appointed, whether or not under an order;
(c) except to reconstruct or amalgamate while solvent, with the prior written consent of the other party, the party enters into, or resolves to enter into a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(d) an order is made, or the party passes a resolution, for the winding up of the party, or the party otherwise dissolves itself, or gives a notice of intention to do so, except to reconstruct or amalgamate while solvent, and with the prior written consent of the other party or is otherwise wound up or dissolved;
(e) the party is or states that it is unable to pay its debts as and when they fall due or suspends or threatens to suspend making payments with respect to all or any class of its debts;
(f) a receiver or receiver and manager, or administrator or controller is appointed to the party or any part of the property of the party or steps are taken with respect to the making of such appointment;
(g) the party takes steps or threatens to cease to carry on its business as a going concern; or
(h) any occurrence, similar to any of the above occurrences, happening to or in respect of the party under the law of the relevant jurisdiction.
“Intellectual Property” means any intellectual, industrial or commercial property, or right of a proprietary nature, including:
(a) any patent, trade mark, service mark or design;
(b) any copyright or work of authorship;
(c) any business, trade or commercial name or designation, brand name, internet website or domain name, logo, symbol, source indication or origin appellation;
(d) any Confidential Information;
(e) any other industrial or commercial right derived from intellectual knowledge or activity of any industrial, scientific, literary or artistic nature or description, whether relating to any manufactured or natural service or otherwise;
(f) any legal action relating to any previous item; and
(g) any licence or other right to use or grant the user, or to become the registered proprietor or user of, any previous item,
whether registered or unregistered or recorded or unrecorded, stored or incorporated in any medium of any nature or description.
“Interest Rate” means the interest rate of 4% above the Bank’s Bill Swap Reference Rate (“BBSY”) being the Average Bid for 30 days (rounded to the nearest two decimal places) as quoted on the BBSY screen of Reuters on the day the quote is given and as advertised in the Australian Financial Review the following day.
“Law” means the common law and requirements of all statutes, rules, ordinances, codes, industry and professional standards, regulations, proclamations and by laws or consents issued by an Authority, present and future.
“Liability” means charges, claims, payments, actions, judgments, damages, losses, costs, fees, expenses, liabilities and obligations.
“Minimum Charge” means the minimum amount payable by the Customer during each Minimum Charge Period.
 “Minimum Charge Period” means the period so specified in Item 4 of this Agreement.
“Personal Information” has the same meaning given to it by the Privacy Act.
“Privacy Act” means the Privacy Act 1988 (Cth) including the National Privacy Principles, as amended.
 “Services” means those services to be provided by the Premiere Agreement as specified in Item 5 of this Agreement.
“Spam Act” means Spam Act 2003 (Cth) as amended.
“Start Date” means the later of the date specified and the date upon which Digital Dialogue commences the provision of the Services to the Customer in accordance with the Agreement.
“Usage Charge” means those charges payable by the Customer on account of use / consumption of the Services determined on a usage basis in accordance with Schedule 1 (Charges) of this Agreement.
2. TERM
Where this Agreement specifies:
(a) that the term of this Agreement then is fixed, this Agreement shall commence on the Start Date and shall continue until the End Date, subject to earlier termination in accordance with clause 19.
(b) that the Agreement is for a periodic term then this Agreement shall commence on the Start Date and shall continue for the Initial Period, subject to earlier termination in accordance with clause 19. or Thereafter, this Agreement shall be automatically extended for an addition term equal to the Periodic Interval, subject to termination in accordance with clause 19.3.
(c) that there is to be no fixed term then this Agreement shall commence on the Start Date and shall continue until terminated in accordance with clause 19.
3. PROVISION OF SERVICES
In consideration for entry into this agreement and payment of the Charges, Digital Dialogue shall:
(a) provide the Services to the Customer; and
(b) grant the Customer a non-exclusive non-transferable right to use the Services,
on the terms and conditions of this Agreement.
4. USE OF SERVICES
4.1 Responsibility for Use
The Customer shall be solely responsible for the use, supervision, management and control of the Services.  The Customer shall ensure that the Services are:
(a) protected at all times from misuse, interference, damage, destruction or any form of unauthorised use; and
(b) used in compliance with this Agreement.
4.2 Restrictions on Use
Without limitation to any other provision, the Customer must not (nor cause or permit a third party to):
(a) use the Services or related documentation in combination by any means and in any form with other goods and services not contemplated by this Agreement or approved by Digital Dialogue;
(b) use the Services or related documentation in a manner or for a purpose which is:
(i) reasonably contemplated or not authorised by Digital Dialogue; or
(ii) improper, immoral or fraudulent;
(iii) infringes any person’s Intellectual Property Rights; or
(iv) restricts or interferes with the provision of the Services by Digital Dialogue to any other customers or users.
(c) modify or alter the Services or related documentation without the prior written consent of Digital Dialogue;
(d) reverse assemble or reverse compile the whole or any part of the Services; or
(e) enter into any transaction relating to the Services or related documentation with a party other than Digital Dialogue, without Digital Dialogue’s prior written consent.
4.3 Obligations as to Content
(a) The Customer must not, and must not allow any other person to use the Services to send or make available information or data which:
(i) is indecent, obscene, pornographic, offensive, racist, menacing, illegal or confidential;
(ii) defames, harasses or abuses another person or entity; or
(iii) is misleading and/or deceptive as to the Customer’s identity.
(b) The warrants and covenants to ensure that any information and data provided (including but not limited to Personal Information), owned or used by the Customer in association with the Services is:
(i) accurate and has been collected and used in compliance with all relevant Laws and without limitation in accordance with the Privacy Act; and
(ii) used with the consent and in compliance with the directions of any third party that holds copyright or any other Intellectual Property Rights in any of that information and date (as may be applicable).
(c) Digital Dialogue may at any refuse to forward any information or data that does not comply with this clause, and shall not be liable for so doing.
5. ADDITIONAL TERMS AND CONDITIONS
5.1 MailBuild Services
If it is specified that the Services or part of the Services are MailBuild Services, in addition to the terms and conditions contained herein, the Customer agrees to be bound by the MailBuild Terms and Conditions to the extent that the Services are MailBuild Services.
5.2 Conflict
To the extent that, the MailBuild Terms and Conditions or the conflict with the standard terms and conditions of the Agreement, the MailBuild Terms and Conditions (as may be applicable) take precedence and prevail.
6. CHARGES
6.1 Invoice
Digital Dialogue will provide the Customer with an invoice each month on account of the Charges payable by the Customer.
6.2 Payment
The Customer will pay the Charges to Premiere within thirty (14) days of receipt of each invoice.
6.3 Late Payment
Without prejudice to any other remedies Digital Dialogue may have under this Agreement or otherwise, if the Customer fails to pay any Charges by the due date Digital Dialogue may without notice to the Customer:
(a) suspend the provision of the Services;
(b) charge interest at the Interest Rate on the outstanding Charges or any other monies due and unpaid by the Customer,
until such time as the Customer has paid, in full, the outstanding amount and any interest accrued on the outstanding amount.
6.4 Disputes
(a) The Customer must make full payment of all Charges in accordance with clause 6.2 notwithstanding any dispute as to the amount stated on any invoice.
(b) The Customer shall notify Digital Dialogue in writing of any dispute with respect to the whole or any portion of the amount claimed in an invoice submitted by Digital Dialogue.  Such notice must be given within 7 days of receipt of the relevant invoice.
(c) If it is determined by Digital Dialogue, acting reasonably, that some or all of the amount in dispute ought not to have been paid by the Customer, Digital Dialogue shall credit that amount towards the payment of the next invoice issued by Digital Dialogue in accordance with clause 5.1 or where there is to be no further invoice issued by Digital Dialogue, Digital Dialogue shall reimburse to the Customer the relevant amount.
7. STANDARD BASIS
Where it is specified in Item 4 of this Agreement that the Usage Charges payable by the Customer are to be determined on a Standard Basis, then the Customer must pay all costs incurred in relation to the Services as set out in Schedule 1 (Charges) of this Agreement in accordance with clause 6 of this Agreement.
8. MINIMUM CHARGE BASIS
8.1 This clause 8 applies where it is specified in Item 4 of this Agreement that the Usage Charges payable by the Customer are to be determined based on a Minimum Charge Basis.
8.2 The Customer must pay to Digital Dialogue that part of the Minimum Charge determined in accordance with subclause 3, on a monthly basis in accordance with clause 6 of the Agreement.
8.3 That part of the Minimum Charge payable each month by the Customer shall be determined in accordance with the following formula:
Amount Payable = Minimum Charge / Minimum Charge Period (expressed in months).
8.4 If at the end of the Minimum Charge Period it is determined by Digital Dialogue that the Usage Charges incurred by the Customer during the Minimum Charge Period exceeds the Minimum Charge, then the Customer shall pay to Digital Dialogue all Usage Charges incurred during the Minimum Charge Period over and above the Minimum Charge.
8.7 If this Agreement is terminated prior to the End Date or expiry of the Minimum Charge Period the Customer must pay to Digital Dialogue the Minimum Charge that would be payable by the Customer to Digital Dialogue for the remainder of the Minimum Charge Period or for the period from the date upon which the Agreement is terminated up to and including the End Date (whichever is the later).
9. COMPLIANCE WITH LAW
9.1 General
The Customer shall only use the Services in compliance with all relevant Laws, and must not use the Services to breach any relevant Laws.
9.2 Spam Act
(a) Without limitation to clause 9.1, the Customer shall ensure that any messages or communications sent using the Services shall be in compliance with the Spam Act.
(b) Digital Dialogue may at its discretion refuse to send any broadcast communications that meet the commonly accepted definition of Spam as contemplated by the Spam Act.
9.3 DNCR Laws
Without limitation to clause 10.1, where applicable the Customer must comply with all requirements of the DNCR Laws when using the Services and must take all reasonable steps to ensure that its employees and agents comply with the DNCR Laws.
9.4 Failure to Comply
Without limitation to any other rights and remedies available to Digital Dialogue, Digital Dialogue reserves the right to suspend the provision of Services, terminate this Agreement or take any such other appropriate action against the Customer in the event that Digital Dialogue becomes aware that the Customer has used or permitted the use of the Services in contravention of any Law including but not limited to the Spam Act, the DNCR Laws, the Privacy Act or if Digital Dialogue is required to do so by any Authority.
10. SUSPENSION OF SERVICES
10.1 Without Notice
Digital Dialogue may at any time (without notice to the Customer) suspend all or any part of the Services to:
(a) rectify unforseen defects or failures with the Services, which in Digital Dialogue’s opinion acting reasonably require urgent or immediate attention;
(b) comply with any Law or direction of any Authority;
10.2 With Notice
Digital Dialogue may at any time upon providing the Customer with reasonable notice suspend all or any part of the Services to carry upgrades, maintenance or repair the Services.
11. INTELLECTUAL PROPERTY
11.1 Acknowledgement
The parties acknowledge that Digital Dialogue owns all Intellectual Property Rights subsisting in the Services and any documentation supplied by Digital Dialogue in connection with the Services.  Nothing in this agreement transfers ownership of any of the Intellectual Property Rights subsisting in the Services or related documentation.
11.2 Exercise of Rights
The Customer must not exercise any of the rights of Digital Dialogue as owner of the Intellectual Property Rights subsisting in the Services and related documentation except as expressly permitted by the terms of this Agreement.
11.3 Modifications and Developments
Unless otherwise agreed by the parties in writing, Digital Dialogue will own all Intellectual Property Rights in any modification, adaptation or development of the Services carried out by the Customer notwithstanding that any such modification, adaptation or development by the Customer may be in contravention of this Agreement, and the Customer will do all such things that are necessary to confer those Intellectual Property Rights to Digital Dialogue.
12. CONFIDENTIAL INFORMATION
12.1 Confidentiality
Any party who receives Confidential Information during the term, and after termination or expiration of this Agreement, shall keep that information confidential and shall:
(a) not publish or disclose the Confidential Information to any person except as permitted under this Agreement or with the prior written consent of the other party;
(b) not use the Confidential Information for any purpose, except where strictly necessary for the performance of its liability under this Agreement; and
(c) comply with all applicable privacy and consumer laws.
Both parties acknowledge that the contents of this Agreement is strictly confidential.
12.2 Permitted Disclosure
(a) The receiving party may disclose Confidential Information on a confidential basis to any Customer, officer or employee of that party to the extent reasonably necessary or desirable for the purposes of this Agreement during the term of the Agreement.
(b) The receiving party shall procure that any Customer, officer or employee of the receiving party shall be informed of, and comply with, the confidentiality liability of the receiving party under this Agreement.
12.3 Permitted Exemptions
This provision shall not apply to any Confidential Information which:
(a) at the date of this Agreement is in or comes into the public domain, except through default under this Agreement by the receiving party or any Customer of the receiving party;
(b) can be shown by the receiving party to have been known by the receiving party before disclosure by the disclosing party to the receiving party;
(c) subsequently comes lawfully into the possession of the receiving party from a third party;
(d) is required by compulsion of law to be disclosed to a third party; or
(e) is disclosed to either party's legal advisers in the course of obtaining legal advice.
13. SUB-CONTRACTORS
Digital Dialogue may sub-contract the provision of any and part of the Services without the prior approval of the Customer.
14. GST
All amounts payable under the Agreement (or any other agreement or document entered into between the parties), are GST exclusive amounts.  The Customer must in addition to the stated amounts pay GST on such amounts.  Premiere must give to the Customer a tax invoice in accordance with any applicable GST Law.
15. WARRANTIES
15.1 Warranties
The Customer represents and warrants that:
(a) it has the power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by it and to carry on its business as contemplated in this Agreement;
(b) it has taken all necessary steps (including any corporate action necessary in the event that it is a corporation) to authorise its entry into and performance of all of its obligations under the Agreement and to carry out the transactions contemplated by this Agreement;
(c) the execution and performance by it of this Agreement and each transaction contemplated by this Agreement does not and will not in any respect violate the provisions of:
(i) any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority binding on it;
(ii) its constitution or other constituent documents;
(iii) any other document or agreement which is binding on it or its assets;
(d) it is not knowingly in default or difficulty under any deed, agreement, financial commitment or other document or obligation which is reasonably likely to adversely affect the ability of the party to comply with its obligations under this Agreement;
(e) so far as it is aware, it is in full and ongoing compliance with all companies and securities legislation and regulations and all other legislation and regulations to which the party may at any time and from time to time be subject;
(f) no Insolvency Event has occurred and is continuing in relation to it; and
(g) no litigation or administrative or other proceedings before or of any court or governmental authority or agency or other tribunal have, to its knowledge, been initiated or threatened against the it or any of it's assets which would or might have a materially adverse effect upon its business, assets or financial condition.
15.2 Reliance on Warranties
The Customer acknowledges that Digital Dialogue has entered into this Agreement in reliance upon the warranties in this clause. For the avoidance of doubt, a breach of any of the warranties set out in this clause shall be a material breach of this Agreement.
16. INDEMNITIES AND RELEASES
16.1 Indemnities
The Customer indemnifies and must keep indemnified Digital Dialogue from and against all Claims and Liabilities sustained, recovered or made against Digital Dialogue or Digital Dialogue’s servants, contractors or agents in connection with:
(a) any breach of this Agreement by the Customer;
(b) caused or contributed to by an act, omission, negligence or default of the Customer (including but not limited to any damage to person or property);
(c) any Liability in consequence of or resulting directly or indirectly out of the supply, performance or the use of the Services by the Customer, to any third party.
16.2 Release
The Customer agrees to use the Services at its own risk.  The Customer hereby releases to the fullest extent permitted by law Digital Dialogue and its contractors, servants and agents from all Claims and demands of every nature resulting from or in relation to:
(a) any statement, representation, warranty, promise, undertaking or agreement in connection with the provision of the Services unless the same is specified in this Agreement;
(b) any Liability by the Customer in consequence of or resulting directly or indirectly out of the supply, performance or the use of the Services by any third party or out of any breach, default, fault or negligence of Digital Dialogue in or in connection with this Agreement or otherwise except to the extent the Liability arises under an express obligation or a warranty in this Agreement;
(c) any loss of or interruption to data or computer time, loss due to any inaccuracy, alteration or erroneous transmission of data, unauthorised access to data processed or transmitted by, to or through the Services, software errors or the infringement of any intellectual property rights of the Customer or any other person; or
(d) suspension or termination of the Services in accordance with the terms of this Agreement or as otherwise directed by any Authority.
17. LIMITATION OF LIABILITY
17.1 Limitation of Liability under this Agreement
(a) The Customer acknowledges that it has made its own assessment as to the condition, quality, value, suitability and fitness for the purpose of the Services and has placed no reliance in that assessment on any statement, conduct or representation by Digital Dialogue in relation to those matters.  To the fullest extent permitted by law, all conditions, representations or terms implied or imposed by State or Commonwealth laws as to fitness for purpose and quality are excluded and the Customer waives any rights it may have in respect of them.
(b) The terms and conditions of this Agreement which exclude or limit the liability of Digital Dialogue shall apply only to the extent permitted by law.  Provisions of the Trade Practices Act, 1974 (as amended), and other statutes from time to time in force in Australia may apply warranties or conditions or impose obligations upon Digital Dialogue which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent.  This Agreement shall be read and construed subject to any such statutory provisions.  If any such statutory provisions apply, then to the extent to which Digital Dialogue is entitled to do so, the liability under those statutory provisions shall be limited at the option of Digital Dialogue to:
(i) in the case of the supply of goods:
(1) the replacement of the goods or the supply of equivalent goods; or
(2) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(3) the payment of the cost of having the goods repaired; or
(4) the repair of the goods; or
(5) the refunding to the Customer of the price or fees paid in respect of the goods giving rise to the liability; and
(ii) in the case of services:
(1) the supplying of the services again; or
(2) the payment of the cost of having the services performed again; or
(3) the refunding to the Customer of any sums paid in respect of such services.
18. FORCE MAJEURE
18.1 Liability
Each of Digital Dialogue and the Customer shall not be liable to the other party for any Liability incurred by that party as a direct result of either party failing or being prevented, hindered or delayed in the performance of its liability under this Agreement by reason of a Force Majeure Event.
18.2 Notice of Delay
The party affected by a Force Majeure Event shall as soon as practicable notify the other party in writing of any anticipated delay due to that Force Majeure Event and use reasonable efforts to perform its obligations under this Agreement.
18.3 Termination
Either party may terminate this Agreement immediately on providing written notice to the other, if delay due to a Force Majeure Event continues for a period in excess of 30 days from the date of notification provided under clause 7.2.
19. DEFAULT AND TERMINATION
19.1 Default Events
The following events shall be default events under this Agreement:
(a) failure by the Customer to pay or perform any Liability or covenant under this Agreement;
(b) non-compliance by the Customer with or the fact of inaccuracy of any representation made or deemed to be made or repeated by the Customer in this Agreement, or in any document delivered to Digital Dialogue under or in connection with this Agreement;
(c) the appointment of any controller over, or possession taken by any secured party of, any asset;
(d) cessation of payment generally by the Customer or the inability of the Customer to pay all its debts as and when they become due and payable;
(e) the appointment of any administrator to the Customer;
(f) any legal action, not being a disputed action, being commenced, judicial order made or resolution passed for the liquidation of the Customer;
(g) the creation by the Customer of any debt arrangement with all of its creditors generally or any class of creditors; or
(h) the initiation of any investigation under the Australian Securities and Investments Commission Act 1989 or any other legislation of the Customer or its business activity or business records.
19.2 Consequences of Default
If a Default Event occurs, then Digital Dialogue may, in its absolute discretion and without prejudice to any other rights that it may have, at any time prior to rectification of the Default Event, either:
(a) require the Customer to immediately pay all amounts in relation to any Services which have been invoiced but remain unpaid; and/or
(b) temporarily and indefinitely suspend the provision of Services; and/or
(c) require the Customer to pay in advance before supplying any further Services to the Customer; and/or
(d) confirm this Agreement as a binding Agreement and seek damages and/or any other remedies legally available to Digital Dialogue; and/or
(e) treat such Default Event as a repudiation of this Agreement by the Customer and accept the Customer’s repudiation, rescind this Agreement, forfeit all moneys paid by the defaulting party (as a genuine pre-estimate of Digital Dialogue’s loss) and the Customer must otherwise comply with the requirements of clause 19; and/or
(f) terminate this Agreement.
19.3 Obligations on Termination
(a) Upon expiration or termination of this Agreement, the Customer must:
(i) pay to Digital Dialogue any and all amount due and payable to Digital Dialogue under this Agreement (including but not limited to any amount due and payable under clause 8.7);
(ii) if this Agreement is terminated prior to the End Date or Initial Period pay to Digital Dialogue an amount equal to any fixed Charges that would be payable by the Customer for the remainder of the Term or Initial Period as a genuine pre-estimate of the Digital Dialogue’s loss); and
(b) Within 30 days following termination of this Agreement Digital Dialogue shall reconcile all accounts and return to the Customer any Confidential Information of the Customer which is in the possession of Digital Dialogue.
20. PERSONAL INFORMATION
20.1 Collection of Personal Information
Digital Dialogue, its agents and resellers may collect, use and disclose Personal Information about the Customer for the primary purpose of providing the Services to the Customer.
20.2 Use of Personal Information
(a) Digital Dialogue may use the Customers information for the purposes that are related to providing the Customer with the Services (or for purposes which would be reasonably expected) including but not limited to determining whether to start, stop or limit the supply of Services to the Customer, billing and account management.
20.2 Disclosure
Digital Dialogue may receive and disclose Personal Information or documents about the Customer to or from:
(a) credit providers or credit reporting agencies for the purposes permitted under the Privacy Act;
(b) law enforcement agencies to assist them in prevention of criminal activity;
(c) Digital Dialogue’s service and content providers, dealers, agents and resellers, or any company within the Digital Dialogue group for purpose that are related to providing the Customer the Services and which the Customer reasonably expects Digital Dialogue to use that information for.
20.3 Access to and Correction of Personal Information
If the Customer is an individual, Digital Dialogue will at the Customer’s request:
(a) provide the Customer with access to the Customer’s Personal Information held by Digital Dialogue; and
(b) correct any Personal Information of the Customer that is inaccurate, incomplete or out of date in accordance with the Privacy Act.
21. NAMES AND MARKS
The Customer grants to Digital Dialogue a non-exclusive royalty free licence to use any company name, business name or trade mark of the Customer, whether registered or unregistered, and may identify the Customer as a customer of Digital Dialogue for the purposes of providing the Services and in connection with any marketing, advertising or promotion of Digital Dialogue or the services provided by Digital Dialogue.
22. ASSIGNMENT
(a) The Customer shall not transfer any right or liability under this Agreement without the prior consent of Digital Dialogue, except where this Agreement provides otherwise.
(b) Digital Dialogue may without notice transfer any right or liability under this Agreement.  Where required by Digital Dialogue to effect the transfer of any such rights or liabilities, the Customer will sign and enter into an agreement on substantially similar terms and conditions to this Agreement with the party to which Digital Dialogue transfers its rights and liabilities.
23. CUSTOMER AUTHORITY
The Customer represents and warrants to Digital Dialogue that the following are true and correct at the date of this Agreement and will remain true and correct for the term of the Agreement:
(a) the Customer and the party or individual(s) entering into this Agreement on behalf of the Customer are authorised to enter into this Agreement and bind the Customer;
(b) the execution and delivery of this Agreement has been properly authorised including where necessary by all required corporate action of the Customer (where the Customer is a corporate entity); and
(c) the Customer has full corporate power and lawful authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement.
24. GUARANTEE
24.1 Guarantee
In consideration of Digital Dialogue at the request of the Guarantor entering into this Agreement and as separate and severable covenants, guarantees and indemnities, the Guarantor must:
(a) pay to Digital Dialogue all moneys including without limitation the Charges payable under this Agreement which are not paid by the Customer within the time prescribed in this Agreement for payment whether demand for same has been made by Digital Dialogue or not; and
(b) observe and perform all covenants conditions, obligations and Liabilities binding on the Customer with which the Customer does not comply within the time prescribed in this Agreement for observance or performance whether demand for such observance or performance has been made by Digital Dialogue on the Customer or not.
24.2 Guarantor’s Covenants and Indemnities
The Guarantor further covenants and agrees as follows:
(a) all moneys received by Digital Dialogue from or on account of the Customer including any dividends upon the liquidation of the Customer, from any other person or corporation, or from the realisation or enforcement of any security capable of being applied by Digital Dialogue in reduction of the indebtedness of the Customer, are to be regarded as payment in gross without any right on the part of the Guarantor to stand in the place of Digital Dialogue or claim the benefit of any moneys so received until the Guarantor has paid the total indebtedness of the Customer and so that in the event of the liquidation of the Guarantor Digital Dialogue is entitled to prove for the total indebtedness of the Customer;
(b) in the event of the liquidation of the Customer the Guarantor authorises Digital Dialogue to prove for all moneys which the Guarantor has paid hereunder and to retain and to carry to a suspense account as appropriate at the discretion of Digital Dialogue any dividends received until Digital Dialogue has been paid in full in respect of the indebtedness of the Customer to Digital Dialogue.  The Guarantor waives in favour of Digital Dialogue all rights against Digital Dialogue, the Customer, any other person or corporation, estate or assets so far as necessary to give effect to anything contained in this guarantee;
(c) the Guarantor indemnifies Digital Dialogue against any loss Digital Dialogue may suffer by reason of the Customer having exceeded its power or going into liquidation and, in particular, the Guarantor indemnifies Digital Dialogue against any loss Digital Dialogue may suffer by reason of the Charges ceasing to accrue and to be payable after the Customer goes into liquidation;
(d) this guarantee is a running and continuing guarantee binding the Guarantor notwithstanding any settlement of account or the liquidation of the Customer or any other act matter or thing whatsoever and must remain in force until a final discharge thereof has been given by Digital Dialogue.
25. NOTICES
(a) Any notice to or by a party under this Agreement shall be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender, including any director, secretary or person notified in that capacity by that corporate party, or under the seal of or any power of attorney conferred by the sender.
(b) Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient and shall be effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report.
26. GOVERNING LAW
This Agreement shall be governed by and construed under the law of the State of Western Australia, Australia.
27. GENERAL PROVISION
27.1 Amendments
Digital Dialogue may make amendments to the Agreement from time to time if:
(a) the amendments will benefit or will not permanently and adversely affect the Customer;
(b) the Customer agrees to the amendments; or
(c) Digital Dialogue reasonably expect the amendments to permanently and adversely affect the Customer, and Digital Dialogue has given the Customer reasonable notice of the amendments and offering the Customer the right to terminate the Services (without fault) within 30 days of the notice and the Customer does not terminate the Services.
27.2 Pre-Contractual Negotiation
This Agreement:
(a) expresses and incorporates the entire agreement between the parties in relation to its subject-matter, and all the terms of that agreement; and
(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject-matter or any term of that agreement.
27.3 Further Assurance
Each party shall execute any document and perform any action necessary to give full effect to this Agreement, whether prior or subsequent to performance of this Agreement.
27.4 Waivers
Any failure or delay by any party to exercise any right under this Agreement shall not operate as a waiver and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party.
27.5 Remedies
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
27.6 Severability
Any provision of this Agreement which is invalid in any jurisdiction shall be invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.