- Defined Terms and Interpretation
Agreement means the agreement including these T&Cs made when the Member is notified that the Membership Application submitted by the Member has been accepted by District32.
Business means the Member’s business in relation to which the Membership Application is submitted by the Member and accepted by District32.
Business Day means any day on which banks are open for business in Perth, Western Australia excluding Saturdays, Sundays and public holidays.
Commencement Date means the date the Member is notified by District32 that his or her Application for Membership has been accepted.
Confidential Information means any information that one party clearly indicates to the other party must be treated and safeguarded as confidential, at the time of disclosure, but does not include information that, at that time: (a) is already in the public domain, or (b) that the receiving party has received from a third party, without breaching any confidentiality obligation, or (c) that the receiving party can show it had already invented independently.
Content includes all information, including text, photographs and videos, which is uploaded, posted, transmitted or otherwise made available by the Member to or via any Social Media or other online messaging system that District32 provides the Member with access to for that purpose.
District32 means DISTRICT32 PTY LTD (ACN 604 276 226), including its principals, employees, agents and contractors.
District32 Brand includes any names, logos, trade names, trademarks and other brand assets used (including as a licensee), possessed or owned by the District32.
Exclusivity means the principle that each Membership Circle is open to membership of only one competing business of each type, as reasonably determined by District32.
Fees include the Membership Fee and the Services Fees.
GST means the goods and services tax of the commonwealth of Australia.
GST Law includes all laws governing the imposition, collection and administration of GST, in particular A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guest means a person, or a representative of an entity, that is not a member of District32, and that attends an event at the invitation of the Member.
Intellectual Property Rights means all existing and future intellectual property rights of whatever nature anywhere in the world recognised by the laws of Australia including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trademarks, service marks, trade names, designs, confidential information, trade secrets and know-how, and other similar industrial, commercial and intellectual property rights, whether registered or registrable, and including all proximate and neighbouring rights, including goodwill and the right to apply for the registration or assignment of any such rights.
Laws includes all laws from whatever source, including: rules of common law; principles of equity; statutes; regulations; proclamations; ordinances; council by-laws; mandatory codes of conduct; court orders, injunctions, judgments, and Australian generally accepted accounting principles
Losses includes all losses, liabilities, damages and claims, together with all related costs and expenses, including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest and penalties.
Meetings means meetings of members, including the Member and other members of a Membership Circle, which are organised by District32 as part of the Services.
Member means the person or entity who or that makes this Agreement with District32, and member (uncapitalised) means any other member of District32 that has made a similar agreement.
Membership means the contractual relationship between District32 and the Member governed by these T&Cs under which the Member is entitled to receive the Services from District32 for the duration of the Term.
Membership Application means the application, in a form prescribed by District32, which the Member submits, either online or in hard copy, applying for Membership.
Membership Circle means one of the defined geographical areas designated by District32 for the delivery of the Services to the Member in conjunction with a group of other members.
Membership Fee means the initial fee that the Member under these T&Cs is obliged to pay to District32 on acceptance by District32 of the Membership Application, and every renewal of that fee payable in accordance with these T&Cs, during the Term.
Membership Plan means a package of Services defined by reference to any categories of Membership offered by District32, currently the Connect, Connect BIG and Connect Premium levels of Membership, which will have the features defined by these T&Cs, in particular by clause 7.
Online Account means the Member’s online profile (including web listing) on the Website displaying information about the Member’s Business.
Services include all services provided by District32 to the Member under this Agreement.
Services Fees includes any fee payable by the Member under these T&Cs in addition to the Membership Fee, including payments made by District32 to a Third Party Supplier on behalf of the Member for products or services supplied by the Third Party Supplier.
Social Media means the accounts and facilities that District32 has with social media platforms operated by third parties, such as Facebook, which District32 is authorised to allow members to use or post Content to.
Term means the term of this Agreement as defined by clause 2, and includes both the initial 12-month term of Membership and every further 12-month renewal term of Membership added under clause 3(c).
Terms and Conditions or T&Cs means these terms and conditions.
Third Party Supplier means any third party engaged by the District32 to supply products and services to the Member in connection with the provision of the Services.
Training Material includes all instructional notes, presentations, slides, recordings and other electronic, written or oral material provided or presented by or on behalf of District32 to the Member in connection with the Services.
Venue includes any venue or location where District32 provides the Services, and where Meetings are held.
Website includes any website owned or operated by or for District32, to facilitate the provision of the Services.
In these T&Cs the following rules of interpretation apply unless the contrary intention clearly appears:
(a) Headings are for convenience only and do not affect interpretation.
(b) The singular includes the plural and vice versa.
(c) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
(d) The words “such as”, “including”, “particularly” and similar expressions are not used as, nor intended to be interpreted as, words of limitation.
(e) A reference to:
- a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
- a thing (including but not limited to a chose in action or other right) includes a part of that thing;
- a party includes its successors and permitted assigns;
- a document includes all amendments or supplements to that document;
- a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement, except in the phrase “third party”;
- an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and
- a monetary amount is in Australian dollars.
(f) When the day on which something must be done is not a Business Day, that thing must be done on the preceding Business Day.
(g) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.
(h) Any reference to a Member doing or omitting to do anything includes the acts and omissions of its principals, employees, agents, contractors and other representatives, including its representatives who attend Meetings.
(i) Any reference to one party giving the other party a notification is to be interpreted as meaning notification in writing, and any such notification, and the giving of any consent in writing, may be done by email, provided that the rules applied by clause 18 to the sending of email notices will apply to all emails sent for any purpose under this Agreement by one party to the other.
2. Formation and Term
(a) The Agreement is formed when the person or entity wishing to become a member submits the Membership Application identifying the Business, and District32 accepts the Membership Application and notifies the person or entity of that acceptance, from which time forward that person or entity is a Member, subject to these T&Cs.
(b) The Agreement operates from the Commencement Date and expires in 12 months, subject to either renewal or termination, in accordance with these T&Cs, except for those provisions of these T&Cs identified as having continuing operation.
(c) District32 is free to reject the Membership Application on any ground, provided that it refunds any Membership Fee paid by the person or entity wishing to become a member.
(d) The Member must provide only accurate, complete and true information in its Membership Application.
(e) Each party may terminate this Agreement, and the Member’s Membership, as provided by clause 15.
3. Membership: Conditions and Renewal
(a) For the duration of the Term, the Member is entitled to receive from District32 the Services included in the Membership Plan that the Member subscribes to in its Membership Application, in consideration for the Member’s payment of all applicable Fees in accordance with clause 7, including the Membership Fee and the Services Fees.
(b) Each Big Connect member is entitled to Exclusivity in its Membership Circle, meaning that:
- the Member joins a Membership Circle in respect of a particular Business;
- the member can promote its Business via the Services and its Membership, but not any other business that the member operates, unless their Membership Application was accepted by District32 for more than one business;
- the Membership Application is accepted by District32 for a particular Membership Circle on the basis that no other member already operates a business similar to the Business, in the opinion of District32; and
- except as permitted by these T&Cs, and subject to subclause (f)(5) below, during the duration of the Member’s Membership of a Membership Circle, no other person or entity that operates a business similar to the Business, in the opinion of District32, will be accepted as a member in that Membership Circle in respect of that competing business.
(c) With respect to the duration and renewal of Membership:
- at the end of the initial Term of 12 months, the Member’s Membership will renew automatically, and the Term of this Agreement will be extended for a further 12 months, and will continue to do so every 12 months, and the Member will continue to be liable to pay District32 the Services Fees and Membership Fees on a revolving basis for the full 12-month period of every such Term extension, unless the Member notifies District32, at least 30 days before the end of the current 12-month Term, that the Member does not wish to renew its Membership, in which case the Agreement will not be extended further;
- District32 in its discretion may suspend the automatic renewal process provided by paragraph (1) above, by notifying the Member that the renewal will not proceed, in which case the Membership will expire at the end of the current Term;
- the renewed Membership and the extended Agreement will be subject to these T&Cs in their then current form, including any variations that have been made after the commencement of the Term, or the commencement of the last extension of the Term, whichever applies;
- the Member will be obliged to pay a Fee for membership renewal only if such a Fee is included in its Membership Plan; and
- District32 will email the Member a notification, 30 days prior to the automatic renewal of the Term under (1) above, reminding the Member that the renewal will occur, after which the Member may stop the automatic renewal by notifying District32 that the Member does not wish the renewal to proceed. The Member agrees that if it fails to make this notification, its Membership will renew automatically for a further 12 months.
- A description of the Membership Plan that applies to the Member will be provided by District32 at the time the Member initially applies for its Membership, or applies to renew its Membership, which must not be inconsistent with these T&Cs, and which will specify, among other things:
- which Meetings the Member is obliged to attend, and which Meetings the Member may, but is not obliged to, attend;
- what prohibitions, limitations and conditions apply to the Member, including with respect to use of the Website and the Social Media;
- the Services that the Member is entitled to receive from District32 or from Third Party providers, as part of that Membership Plan;
- any other rights or privileges that the Member is granted by District32 as part of the Membership Plan, including some or all of the following things: access to or use of the Website; capacity to post Content to the Website or Social Media; opportunities to purchase products and services for discounted prices, or products and services tailored for members’ needs; and, subject to clause 18.13, access to the details of other District32 members; and
- the contents of the Membership Plan may be updated or varied by District32 in its sole discretion, provided that clause 4(d) will apply to any such changes.
- The Member agrees that:
- it will comply with all conditions that apply to its Membership Plan; and
- its representatives (including its principals and employees) who attend Meetings must:
- (i) behave courteously towards, and not compromise the health or safety of, District32 personnel, other members’ representatives, Venue staff and operators, and members of the public; and
- (ii) comply with all reasonable directions given by District32 personnel and Venue staff.
- If the Member has a Connect BIG Membership Plan, the following additional rules will apply:
- The Member is required to attend at least 20 of its 24 regular Membership Circle events, in each Term.
- If a Member cannot attend an event, it must use its best endeavours to send a representative or Guest to attend the event.
- If neither a representative nor a Guest attends the event, then a “pass-out” will be applied to the Member by District32. The Member may use only four “pass-outs” per 12-month Term.
- The Member will be notified by District32 when the second, third and fourth “pass-outs” are applied.
- If a Member fails to attend (in person or by representative or Guest) more than four events, District32 will have the right to suspend the Member’s Exclusivity in its Membership Circle.
- District32 will consider reasonably any genuine reasons that a Member may have for exceeding the limit of four event absences.
- A Member may not move or swap Circles unless at the end of a 12 month term.
- District32 obligations and rights
- District32 must provide to the Member the Services included in the Member’s Membership Plan, in accordance with these T&Cs, including where relevant access to products and services supplied by Third Party Suppliers.
- The District32 may review any Content posted by a Member to the Website or Social Media, and may remove that Content, or authorise or request the owner of the relevant Social Media platform to do so, if, in District32’s sole opinion, that Content is unsuitable, offensive, scandalous or defamatory of any person.
- District32 may suspend the Member’s Membership at any time if the Member has breached these T&Cs, in which case the Member will not be entitled to a refund of any Fees.
- If, at any time during the Term, it becomes economically or organisationally unviable for District32 to continue providing any part of the Services, or economically or organisationally necessary for District32 to vary any part of the Services, then it may do so, provided that it:
- notifies the member in advance of the change;
- varies the Fees to any extent necessary to fairly reflect any reduction in the value of the Services; and
- refunds to the Member, or gives the Member a credit for, any pre-paid part of the Fees that represent a fair reduction made under paragraph (2) above.
- District32 may vary or update the range of Services included in Membership Plans from time to time, provided that such changes will apply to the Member only from the time its Membership is next renewed under clause 3(c), unless the range has been varied as permitted by clause 4(d).
- With respect to any events organised by District32 to which the Member is invited or is entitled to attend:
- District32 may cancel or reschedule events without the consent of the Member, notwithstanding that a Member has prepaid for the event, on any reasonable ground, but if a pre-paid event is cancelled merely for District32’s convenience, then District32 must either provide the Member with a credit for that event or refund the price or fee paid. In particular, District32 may reschedule or cancel an event because the venue operator has withdrawn the availability of the venue, or the event clashes with another event or falls on a public holiday. In general, District32 is not obliged to schedule any events for public holidays.
- District32 may move an event to an alternative venue which, in the sole opinion of District32, is more suitable or appropriate, without the consent of the Member.
- District32 may schedule multiple events for the same date or time of day, regardless of whether the Member would be entitled to, or would prefer to, attend both or all events.
- District32 will be entitled to charge the member a Service Fee for providing any certification, including a Cert IV in Business Sales.
- Use of Website and Social Media
(a) When using the Website and Social Media, the Member must comply strictly with the privacy obligations set out in clause 18.13, in relation to all persons, without exception, including District32 personnel, other members, Venue operators and staff, and all other persons with whom the Member has come into contact with in the course of receiving the Services.
- to display that Content in the Website or Social Media; and
- to use the Content for District32’s marketing and promotional purposes, and in its communications with members.
- The licence granted by the member in subclause (b) above is royalty-free and indefinite in duration, and extends world-wide. It may be revoked in writing.
- The Member will not post Content that offends the criteria set out in clause 4(b).
- The Member must not interfere with content posted to Website or Social Media by District32 or any other member.
- The Member must not damage the Website, or Social Media, or the servers or computers of any person, by uploading any virus, malware, trojan, worm, or other malicious or dangerous software to those facilities, or to be distributed via those facilities, or be negligent with its login credentials, access to its computer systems, or computer security in such a way as to allow any other person to do so.
- With respect to the accessibility and functioning of the Website and Social Media, the Member agrees that:
- from time to time, the Website and Social Media may be temporarily unavailable due to scheduled or unscheduled maintenance or due to other reasons beyond District32’s control;
- District32 will reasonably endeavour to provide the Member with prior notice of any scheduled service disruption; and
- District32 will not be liable to refund any Fee to the Member merely by reason of the unavailability or dysfunctionality of the Website and Social Media.
- The Member consents to its details (including the details of its principals, directors, employees and Meeting representatives) being published by District32 on its Website and Social Media, including photographs, videos and other recordings.
- District32 Management of Membership Circles
- Further to the matters set out in clause 3(b), if a Member is allocated a Membership Circle as a condition of its Membership, and:
- consistently fails to meet demand for products or services from other members of that Membership Circle; or
- fails to attend the obligatory Meetings for that Membership Circle that it must attend under its Membership Plan; or
- otherwise, in the opinion of District32, materially fails to meet its Membership Obligations; then
subject to subclause (b) below, District32 may suspend the Exclusivity for that Member and admit as a member for that Membership Circle another person or entity that operates a business similar to the Member’s Business.
- District32 will not admit another person or entity that operates a business similar to the Member’s Business into the Member’s Membership Circle under the preceding subclause until after District32 provides written notice to the Member by email at least 14 days before doing so, and providing the Member with an opportunity to explain its failure to meet its relevant Membership obligations. District32 reserves the right, in its absolute discretion, to accept or reject such explanation.
- District32 retains an absolute discretion to modify the size and number of its membership circle including the Membership Circle but will notify the Member if its Membership Circle is altered.
- When making any alteration to the Membership Circle under the preceding subclause, or any other alterations to its business operations or business model that affect the Membership Circle or the Member, District32 will use its best endeavours to ensure that those alterations do not substantially diminish the value that the Member receives for its Fees.
- The Parties agree that:
- the Member must send a representative to attend every Meeting of its Membership Circle, except that it may not attend up to four Meetings per calendar year (each event is payable);
- if the Member is absent from more than four Meetings, District32 will be entitled to charge the Member the Services Fee for any missed Meetings, regardless of whether the Member sent a representative to the Meeting or not; and
- the Member acknowledges that clause 6(e)(2) is reasonable, having regard to District32’s business model, which relies on the attendance of members at Meetings.
- Membership Plans
Despite anything else in these T&Cs:
- Membership Circles will apply only to the Connect BIG and Connect Premium Membership Plans.
- Exclusivity will apply only to the Connect BIG Membership Plan (one profession per circle) and to the Connect Premium Plan (3 professions per circle).
- Mandatory attendance will apply only to the Connect BIG Membership Plan.
- Fee Payments
- District32 will provide the Member with a tax invoice compliant with the GST Law for all Fees charged to the Member.
- District32 may change the amount of its Fees from time to time, in accordance with the following procedure:
- District32 must notify the Member of the change by email and by posting a general notice on the Website at least 30 days before the change takes effect; and
- if the Member continues to accept the Services after the date the change comes into effect, the Member will be deemed to have agreed to the change.
- The Membership Fee is for 12 months of Membership, treated as a unit, beginning on the day that the Membership Fee is received by District32, but that fee will be invoiced to the Member by District32 in 12 monthly instalments after the Membership commences or is renewed.
- The Services Fees will be charged to the Member and debited automatically by District32 in addition to the Membership Fee, and may be debited at the same time as Membership Fee instalments, as follows:
- for all compulsory regular meetings in the Member’s Membership Plan, on a monthly basis, which includes, on a per-attendee basis, a charge to cover the cost of refreshments provided by Third Party Suppliers at Venues for consumption by members at Meetings and the Venue hire;
- as and when other Services are requested by the Member;
- where the Services consist of a service provided to that Member only, the specific Fee for that particular service, including any component payable to a Third Party Supplier; and
- any other reasonable incidental costs of providing the Services that the Member is notified of by District32.
- All Membership Fee instalments, and all Services Fee amounts paid in advance, are non-refundable, unless this Agreement is terminated by the District32 under clause 15(f). The Member agrees that this is reasonable, having regard to District32’s membership-based business model.
- The Member agrees:
- to make full payment of every Fee charged by District32 by the date specified by District32; and
- to authorise District32 to deduct Fee payments from the Member’s credit or debit card, and not to withdraw such authorisation until all Fees have been paid.
- Any outstanding Fees not paid by the date shown on the relevant invoice and all other monies owed to District32 under this Agreement will be subject to default interest of 2.5% per month, accruing daily, on any outstanding balance. For the avoidance of doubt, the Member will be liable to pay any missed Fee payments due to credit cards expiring, debits being declined by their bank, or any other reasons. It is the Member’s responsibility to let District32 know immediately if the member’s relevant credit or debit card has been stolen, or cancelled by the card issuer, or has expired.
- District32 will be entitled to recover from the Member, in addition to any outstanding Fees and default interest under the preceding subclause, District32’s costs and expenses incurred in recovering any outstanding Fees and interest, including commissions paid to mercantile agents, and legal and administrative costs.
- All Fees, interest, costs and other amounts due and payable by the Member to District32, or recoverable from the Member by District32, under these T&Cs, will remain owing until paid in full, regardless of when the Agreement expires or is terminated.
- This clause 8 will survive the expiry or termination of this Agreement.
- Any consideration or amount payable under this Agreement, including any non-monetary consideration (as reduced in accordance with clause 8(c) if required) (Consideration) is exclusive of GST.
- If GST is or becomes payable on a Supply (as defined in the GST Law) made under or in connection with this Agreement, an additional amount is payable by the party providing Consideration for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.
- Despite any other provision in this Agreement, if an amount payable under or in connection with this Agreement (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise, the amount payable must be reduced by the amount of any Input Tax Credit (as defined in the GST Law) to which that party, or a related party, is entitled in respect of that amount incurred.
- Intellectual Property Rights
- Except as provided by clause 5(b), all Intellectual Property Rights in the District32 Website and Training Material will remain exclusively with District32 as licensee or owner, and do not become the property of the Member merely because the Member has access to or use of those things.
- District32 hereby grants the Member a personal, non-exclusive and non-transferable licence to use the Training Material in the context of and for the purpose of receiving the Services, including at Meetings. Nothing in this Agreement will be taken to constitute a transfer, assignment or grant of any ownership of the Intellectual Property Rights associated with the District32 Material.
- The licence granted under the preceding subclause will terminate or expire when the Member’s Membership terminates or expires.
- The Member hereby grants a royalty-free licence Distict32 to post the Content of the Member’s profile on the Website, and agrees that the profile will be subject to the full control of District32 as operator of the website and may be suspended or removed at any time, in District32’s sole discretion.
- Where the Services include the creation by District32 of a video, podcast, or other electronic recording at the request of, or for the benefit of, the Member, the Member will own the Intellectual Property Rights in that recording, but hereby grants a royalty-free licence to District32 to use that recording for any instructional or promotional purposes associated with District32’s normal business activities.
- The licences granted to District32 by the Member under subclauses (d) and (e) above will terminate if the Member gives District32 written notice of termination, but otherwise will continue indefinitely.
- This clause 10 will survive the expiry or termination of the Agreement.
- Each party acknowledges that the Confidential Information of the other party is valuable to the other party and, subject to clause 11(b), undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
- A party may disclose Confidential Information of the other party:
- to its legal and professional advisers in order to advise that party in connection with the exercise of rights and performance of obligation under this Agreement;
- to any representative of that party, provided that the disclosure is made for the purpose of this Agreement and the party imposes an obligation upon the representative to maintain the confidentiality of that material; and
- to any extent that disclosure is required by an applicable law or court order, provided that the disclosing party gives reasonable advance notice of such disclosure to the other party to ensure that the other party has an opportunity to attempt to preclude or limit such disclosure.
- Each party hereby warrants and represents that:
- it has full power and authority to execute the Agreement and to perform and observe all of its terms and provisions; and
- the Agreement has been duly executed by each party and is a legal and binding agreement of each party enforceable against it in accordance with the terms of the Agreement.
- District32 warrants and represents to the Member that District32 will make all reasonable efforts to ensure that the facilities used by District32 to store and process any of the Member’s Confidential Information are protected to a high security standard.
- The Member warrants and represents to the District32, on an ongoing basis, that:
- the Content does not infringe the rights (including Intellectual Property Rights) of any third party and is not misleading or deceptive, or likely to mislead or deceive;
- the Member either owns or id the licensee of the Content, and in either case the Member has obtained all of the permissions, rights and licences required to use and confer on District32 a licence to publish the Content;
- District32 has any relevant licence or sublicence required to use, reproduce, transmit, copy, publicly display, publicly perform and distribute the Content for the purpose of performing the Services;
- When composing Content and submitting it to District32 for publication, the Member will comply with all Laws and the requirements of any relevant authority or regulator;
- the publication of the Content by District32 the use of the Content by District32, other members, ad other users of the Website and Social Media, will not infringe:
(1) the rights (including the Intellectual Property Rights) of any third party;
(2) any Laws; or
(3) the requirements of any relevant authority or regulator;
- the Member has and will continue during the Term to have all licences, authorisations, consents, approvals and permits required by all applicable Laws in order to perform its obligations under this Agreement, and otherwise complies and will continue to comply with all Laws applicable to the performance of those obligations.
- the Member will not violate any applicable Law in connection with its use of the Services;
- except as permitted under clause 19.10, the Member will not sub-licence, transfer or assign its receipt of, or the benefit of, the Services to any third party.
- If the Member is a natural person, the Member also warrants and represents to District32 that:
- the Member is fully able and legally competent to enter into this Agreement; and
- the Member is at least 18 years of age.
- Without limiting any other indemnity given by the Member in this Agreement, the Member hereby indemnifies, and will continue to indemnify, and must defend and hold harmless, District32 (including its principals, directors, employees, agents and contractors), and its successors, and assigns, from and against all Losses arising from any of the following things:
- a breach by the Member of any of its obligations or warranties under this Agreement, (without derogation from any specific obligations listed below);
- a negligent, wilful or otherwise wrongful act or omission of the Member;
- a negligent act or omission of District32 induced by the deception, misleading conduct, illegal conduct or negligence of the Member;
- any fraudulent or dishonest acts or omissions of the Member;
- any breach by the Member of any Laws or any rules, recommendations, guidelines or codes of conduct;
- any breach by the Member of its confidentiality obligations or warranties under clause 10;
- any beach by the Member of its Website and Social Media obligations under clause 5 ;
- any breach by the Member of its Content and Intellectual Property Rights obligations and warranties under this Agreement, in particular under clauses 10 and 12(c);
- the death of, or personal injury to, any person, to the extent caused by any act or omission of the Member;
- any damage to, or loss or destruction of, any real or tangible personal property, including in particular the property of a Venue owner or operator, to the extent caused by any negligent or wilful act or omission of the Member;
- any claims for any Losses related to any of the matters listed in this clause, made by a third party, including any other member, Third Party Supplier or Venue owner or operator; and
- any unlawful disclosure, misuse or misappropriation of a trade secret or confidential information of another member.
District32 indemnifies, and will continue to indemnify the Member in respect of any Losses arising from any claim or allegation that any of the Services, or the Training Material:
- infringe a third party’s Intellectual Property Rights; or
- constitute an unlawful disclosure, misuse or misappropriation of a third party’s trade secret or confidential information.
The Member agrees that:
- The Services do not include direct referrals, leads or guarantees of new business.
- The Services, and all related components and information (including the Training Material) are provided on an “as is” and “as available” basis without any warranties of any kind, except that District32:
- will deliver the Services in a professional manner; and
- will endeavour to ensure that the Training Material is accurate.
- District32 does not give the Member any express warranties in respect of the Services and the Training Material, including any warranty as to fitness for any particular purpose, apart from the representations set out in the preceding subclause.
- District32 does not give the Member any warranty that:
- the Services will not be interrupted, or will always be delivered in a manner that is timely, and that the Website and Social Media will always be secure, uninterrupted, error-free or virus-free; or
- that any particular results will be obtained by the Member from its use of the Services.
- Without limiting any other right of termination provided by the Laws or otherwise, the Member may terminate this Agreement by giving District32 written notice, provided that such termination:
- will not alter the Member’s liability for and obligation to pay the full Membership Fee; and
- will not alter the Member’s obligation to pay any Services Fees that have already accrued, or that will accrue up to and including the time when the termination takes effect, including fees for Services already provided or related to any Meetings that the Member has booked to attend.
- Without limiting any other right of termination provided by the Laws or otherwise, District32 may terminate this Agreement, cancel the Member’s Membership, delete the Member’s Content from the Website or Social Media, and restrict the Member from accessing the Website and Social Media, immediately on giving the Member written notice, where the Member materially breaches any of its obligations, or any warranty that it has given, under this Agreement. In the event of a cancellation under this clause, the Member will continue to be liable to pay the full annual Membership Fee for the current Term, and the Member agrees that this penalty is reasonable as a disincentive against breaches by it of this Agreement.
- Upon termination of this Agreement by either party, District32:
- is not required to return any Content to the Member; and
- will delete or destroy all copies of the Content in its possession or control, except for Content items created during the Term by the District32 for the benefit of, or on behalf of the Member, including any recorded interviews, videos or podcasts, except for copies that District32 retains in order to comply with its statutory obligations, or where any relevant dispute has arisen, or where any investigation is reasonably necessary.
- Termination for any reason or expiry of this Agreement does not extinguish or otherwise affect:
- any rights of either party against the other which have accrued prior to the termination or expiry, or out of the events resulting in termination, including any right to claim damages or to apply any other remedies to which a party may be entitled; or
- any provisions of these T&Cs which survive termination.
- On termination, the Member will be entitled to be reimbursed for any Fee or other payments made by the Member to District32 only to the extent provided by these T&Cs.
- If District32 terminates this Agreement for convenience during the Term, the Member will not be liable to pay any further instalments of the Membership Fee from the date such termination takes effect.
- Procedure for reporting intellectual property infringement
- Where the Member believes that its intellectual property rights in the Content have been infringed, the Member must provide written notice to the District32. The written notice must include the following information:
- proof that the person making the claim is either the owner of the intellectual property or a person authorised to act on behalf of the owner of the intellectual property;
- a statement by the person making the claim that the information contained in the notice is accurate;
- a statement by the person making the claim truly and honestly believes that the disputed use is not authorised by the copyright owner or its agent;
- a description of the work in which intellectual property is being claimed how the work has been infringed and where the infringement is located.
- Dispute resolution procedure
- If a dispute arises between the parties regarding this Agreement, each party agrees that it must implement and follow the procedure provided by this clause 16, before resorting to litigation, except for applications or urgent injunctions.
- The party raising the dispute must promptly serve a notice on the other party by email, setting out a full description of the matters in dispute (Dispute Notice). The parties must then negotiate in good faith, with a view to resolving the dispute.
- If the dispute cannot be resolved by the parties by negotiation within 30 days of the Dispute Notice being served, or within such further period as the parties may otherwise agree in writing, either party may refer the matter to an independent and suitably qualified mediator for resolution in accordance with any recognised code of mediation practice. The parties must attend the mediation, which must commence within a further 7 days, and the parties must participate in the mediation in good faith, with a view to resolving the dispute.
- If the parties are unable to agree upon a mediator, either party may request the Pres of the Law Society of Western Australia appoint one for them.
- Each party will be responsible for 50% of the mediator’s fees and the cost of hiring any mediation venue, or of using any technology to conduct the mediation.
- Any notice that is required for the purposes of this Agreement is only effective if it is in writing and clearly identifies the party giving the notice, and:
- if delivered in person, is deemed to have been received at the time of delivery;
- if sent by pre-paid post, is deemed to have been received five days after being posted, or, if the parties are in different countries, 14 days after being posted; or
- if sent by email to that party’s email address, is deemed to have been received on the following day after being sent, provided that the sender does not receive a notification, from its email system or that of the sender, that the email could not be successfully delivered;
unless the day of deemed delivery is not a Business Day, in which case the deemed delivery will occur on the next Business Day.
- For the purposes of clause 17(a), the physical, postal, and email addresses of the Member will be the addresses specified by the Member in the Membership Application, and the physical, postal and email addresses of District32 are as follows (unless the Member is notified of any different addresses to use):
- Physical: 20/50 St George’s Terrace, Perth WA 6000
- Postal: 20/50 St George’s Terrace, Perth WA 6000
- Email: email@example.com
This Agreement is the entire agreement between the parties regarding the subject matters dealt with in these T&Cs, and replaces all previous agreements, understanding and representations between the parties about those subject matters.
- Variation or Modification
- No variation of this Agreement is effective unless made in writing and signed by each party.
- District32 may vary these T&Cs from time to time, and:
- if he variation is for the purpose of complying with any change in the Laws, the variation will take effect as soon as the Member is notified of the variation;
- all other variations will take effect from the time the Member’s Membership is renewed, unless the Member agrees otherwise;
- the Member will be notified by District32 of any variation by email and by a notice being posted on the Website; and
- if the Member does not accept the variation, the Member may elect to terminate the Agreement in accordance with clause 15(a).
- Relationship of the parties
The parties are independent contractors, and nothing in this Agreement is intended to create any other type of relationship, and in particular the parties are not partners or joint owners of the Business or Training Material, and neither party has any authority to bind the party to debts or other legal obligations, except as expressly provided by these T&Cs.
- Further assurances
Except as expressly provided in this Agreement, each party must, at its own expense, do all things reasonably necessary to give full effect to this Agreement and the transactions it contemplates.
- Consents and approvals
Except as expressly provided in this Agreement, a party may conditionally or unconditionally in its absolute discretion give or withhold any consent or approval under this Agreement.
- Survival and merger
- No term of this Agreement merges on completion of any transaction contemplated by this Agreement.
- The following provisions of these T&Cs survive the expiry or termination of the Agreement, namely clauses 8, 11, 13, 14, 15, 16 and 18; any other clauses expressed as having continuing force; all payment obligations in relation to Fees and other amounts; all confidentiality obligations; all obligations and rights in relation to Intellectual Property Rights; all warranties and indemnities; and all disclaimers and releases.
Any term of these T&Cs which is wholly or partially void, invalid or unenforceable will be deemed to be severed to the extent that it is void, invalid or unenforceable, without affecting the remainder of the all Agreement to the greatest extent possible.
- No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.
- A single or partial exercise of a right or remedy under this Agreement does not prevent a further exercise of that or of any other right or remedy.
- Failure to exercise or delay in exercising a right or remedy under this Agreement does not operate as a waiver or prevent further exercise of that or of any other right or remedy.
- Cumulative rights
Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by the Laws.
Neither party may assign this Agreement or its benefit to a third party, except to a purchaser of its business (the Business, in the case of the Member), or an entity with which it merges, or by which it is acquired, or, in the case of a Member that is a natural person, to a trust, corporation or partnership which it forms to carry on the Business,
Except as expressly provided in these T&Cs, each party must pay its own costs and expenses of performing this Agreement.
- Governing law and jurisdiction
- This Agreement is governed by the Laws in force in Western Australia.
- Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia, and the legitimate courts of appeal from those courts, in all matters arising under this Agreement.
Each party will respect the privacy of the personal information of the other party, and of its principals, directors, employees, agents, contractors and Meeting representatives, and will comply with the Privacy Act 1988 (Cth) respect of that information. This obligation extends to the personal information of any person that the Member requires or is given access to, in the course of receiving the Services, including other members, the owners or operators of Venues, and the personnel of Third Party Suppliers.