SPARC NETWORK Membership Terms & Conditions
PARTIES
The Membership Terms and Conditions (Terms) are entered into between Sparc Network Pty Ltd ACN 632 246 078 (Sparc Network, we, us or our) and you, the person, organisation or entity described in the online acceptance or in the Schedule (you or your), together the Parties and each a Party.
BACKGROUND
Congratulations on your acceptance into the Sparc Network! As a member of Sparc Network, you are part of a team of sales leaders and a member of a learning eco-system. You will receive a welcome pack and access to a suite of documents and templates and we provide regular premium content from the Sparc Academy. Membership is for 12 month periods with automatic rollover, and the Sparc Network will support you as you grow.
OPERATIVE PART
Terms and Conditions
Acceptance, Commencement and Term
You accept the Terms by the earlier of:
confirming by email that you accept the Terms;
confirming that you accept the Terms via the platforms or applications through which we provide the Terms to you, including our website;
instructing us (verbally or in writing) to proceed with the provision of the Services; or
paying the Price, in full or in part.
The Terms will commence on the Commencement Date and will continue for a 12 month period to the End Date, unless terminated earlier in accordance with these Terms (Term). The Terms automatically rollover and continue for another 12 month period (Renewal Date), unless the relationship is cancelled and terminated by either party, by notice in writing at least 30 days before the End Date.
The Services will commence within a reasonable time after the Commencement Date.
Our Services
In consideration of payment of the Price, we will provide the Services in accordance with the Terms, ourselves or through our Personnel.
If the Terms expresses a time within which the Services are to be provided, you agree that this is an estimate only, and creates no obligation on us to provide the Services by that time.
We may amend the Services and the Price after each annual Term, by providing written notice to you. If you do not agree to any amendment made to the Services or the Price, you may terminate the Terms by giving us 30 days’ notice in writing, in which case clause 9.3 will apply
Your Obligations and Payment
You agree to comply with the Terms, our reasonable requests or requirements, and all applicable Laws, and provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under the Terms or at Law.
You agree to pay the Price in accordance with the Payment Terms.
If any payment has not been made in accordance with the Payment Terms, we may (in our absolute discretion):
cease providing the Services, and recover payment as a debt due and immediately payable from you including our additional costs of recovering payment; and/or
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
You will not be entitled to the Services until all amounts owing under clause 3 have been paid in full.
Intellectual Property
As between the Parties, you own all Intellectual Property Rights in Your Materials, we own all Intellectual Property Rights in Our Materials, and nothing in the Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements vests or remains vested in us, from creation. To the extent that ownership of Intellectual Property Rights in New Materials and Improvements does not automatically vest in us, you agree to do the acts necessary to assure our title to such rights.
We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Our Materials that we provide to you, New Materials and Improvements, solely for the purposes for which they were developed, and for your use and enjoyment of the Services, as set out in the Terms.
If you or any of your Personnel have Moral Rights in material provided, used or prepared in connection with the Terms, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
You (and must ensure that your Personnel) do not disclose, hire, license or sell Our Materials, or commit any Intellectual Property Breach when using Our Materials.
This clause 4 will survive termination or expiry of the Terms.
Confidential Information
We and you must (and must ensure that your Personnel) keep Confidential Information confidential, not use or permit any unauthorised use of Confidential Information, including not disclose, hire, license or sell (i) our Confidential Information or (ii) the Confidential Information of a member of the Sparc Network, or (iii) Confidential Information disclosed directly or indirectly as part of the Sparc Network activities or under or in connection with the Terms.
Clause 5.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with the Terms and provided that the adviser complies with the terms of clause 5.1.
To the maximum extent permitted by law, you indemnify, and continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 5.
This clause 5 will survive the termination or expiry of the Terms.
Warranties
You represent, warrant and agree that:
there are no legal restrictions preventing you from entering into the Terms;
all information and documentation that you provide to us in connection with the Terms are true, correct and complete;
you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in the Terms;
the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
any information, advice, material, work and services (including the Services) provided by us under the Terms does not constitute legal, financial, due diligence or risk management advice;
you will be responsible for the use of the Services, and you must ensure that no person uses the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights), to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted, or in any way that damages, interferes with or interrupts the supply of the Services;
you are not and have not been insolvent, nor appointed an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of your assets, operations or business; and
if applicable, you hold a valid ABN which has been advised to us and you are registered for GST purposes.
Australian Consumer Law
Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled to cancel the Terms with us and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel the Terms and obtain a refund for the unused portion of the Terms.
If the ACL applies to you as a consumer, nothing in the Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and the Terms.
Subject to your Statutory Rights, we exclude all express and implied warranties, and all materials, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis. We do not guarantee specific results from the Services.
Despite anything to the contrary, to the maximum extent permitted by law, we are not liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with your or your Personnel’s acts or omissions, any third party using the Services, any works, services, goods, materials or items which do not form part of the Services, or which have not been provided by us, any Third Party Inputs, the Services being unavailable, any employee or contractor’s resignation from any role or contract, or any delay in us providing the Services to you, for whatever reason, and/or any event outside of our reasonable control.
This clause 7 will survive the termination or expiry of the Terms.
Mutual limitations on liability
Despite anything to the contrary, to the maximum extent permitted by law:
neither Party is liable for Consequential Loss;
a Party’s liability for any Liability under the Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
our aggregate liability for any Liability arising from or in connection with the Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us, in any 12 month period, in respect of the supply of the relevant Services to which the Liability relates.
This clause 8 will survive the termination or expiry of the Terms.
Rollover, Cancellation and Termination
The initial Term is 12 months, and the Terms automatically rollover on the End Date, and continue for another 12 month period, unless the relationship is cancelled and terminated by either party by notice in writing at least 30 days before the End Date.
The Terms will terminate immediately upon written notice by:
us, if:
you (or any of your Personnel) breach any provision of the Terms, including payment, and that breach has not been remedied within 10 Business Days of being notified by us;
you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
you are unable to pay your debts as they fall due; and
you, if we:
are in breach of a material term of the Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or
are unable to pay our debts as they fall due.
When the Terms cease or are terminated, then:
we will cease providing the Services and will cease your access to the Sparc Network;
you agree that any payments made by you to us are not refundable to you, and you must pay in full for the 12 month period from the Commencement Date or the most recent Renewal Date;
you agree to pay for all Services provided prior to termination including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under the Terms;
pursuant to clauses 9.1(a)(1), (2) or (4), you also agree to pay us our additional costs arising from, or in connection with, such termination;
you agree not to disparage or otherwise make any unfavourable statements or comments regarding us, our Personnel, our clients, either directly or by implication, verbally or in writing; and
you agree to promptly return (where possible), or delete or destroy (where not possible to return), Confidential Information, Our Materials, New Materials and our Intellectual Property, and/or documents containing or relating to our Confidential Information, Our Materials, New Materials and our Intellectual Property.
We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of the Terms.
Termination of the Terms will not affect any rights or liabilities that a Party has accrued under it.
This clause 9 will survive the termination or expiry of the Terms.
GST
If GST is payable on any supply made under the Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under the Terms and must be paid in addition to the consideration expressed elsewhere in the Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
If an adjustment event arises in respect of supply made under the Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and payments to give effect to the adjustment must be made.
If the recipient is required under the Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
General
Amendment: The Terms may only be amended by written instrument executed by the Parties.
Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under the Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Counterparts: The Terms may be executed in any number of counterparts that together will form one instrument.
Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, the Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
Entire agreement: The Terms contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
Mutual further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to the Terms and their obligations under it.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under the Terms if such delay is due to any circumstance beyond our reasonable control.
Governing law: The Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under the Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
Online execution: The Terms may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
Relationship of Parties: The Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Severance: If a provision of the Terms are held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from the Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in the Terms.
Definitions
In the Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date when the Terms are accepted and the Price is paid in full.
Confidential Information means:
information disclosed by the Sparc Network, or by a member of Sparc Network, or to members of the Sparc Network, directly or indirectly as part of the Sparc Network activities, or under or in connection with the Terms at any time;
that is disclosed at any time, as part of the Sparc Network, in connection with the Terms and which is not in the public domain (other than as a result of a breach of confidence);
including without limitation information regarding business, assets, affairs, operations, products, processes, know-how, leads, clients or Intellectual Property; and
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential” and however the receiving party receives that information.
Consequential Loss includes real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
End Date means the date that is 12 months after the Commencement Date, then after this, the End Date is the date that is 12 months after the most recent Renewal Date.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Intellectual Property means, without limitation, creative works, domain names, inventions and improvements, trademarks (whether registered or common law trademarks), patents, designs, copyright, inventions, discoveries, trade secrets, processes, know-how, concepts, ideas, information, data or formula, software, computer programs, databases or source codes, and all present and future rights to such intellectual property, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not. Including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):
copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
creating derivative works from our Intellectual Property;
providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights, except as expressly permitted in the Terms;
reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
using or exploiting our Intellectual Property for purposes other than as expressly stated in the Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with the Terms or the provision of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to the Terms or otherwise.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under the Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with the Terms or the provision of the Services, whether before or after the date of the Terms.
Payment Terms means the payment terms that that you have chosen, as set out on our website, including without limitation, payment in advance or periodic payment.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Price means the price for the type of membership that you have chosen, as set out on our website.
Renewal Date means the date of these Terms, then the date that is 12 months after that date, and each date that is 12 months after that date, unless and until the relationship is terminated.
Schedule means the schedule to the Terms.
Services means the services for the type of membership that you have chosen, as set out on our website.
Statutory Rights has the meaning given in clause 7.1.
Term means the term of the Terms, commencing on the Commencement Date and ending on the earlier of the End Date or the date on which the Terms are terminated in accordance with its terms.
Terms means these terms and conditions and any documents attached to, or referred to in, each of them.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of the Terms.
Interpretation
In the Terms, unless the context otherwise requires a reference to the Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time; a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time; a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time; a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; a reference to time is to local time in New South Wales; and a reference to $ or dollars refers to the currency of Australia from time to time.
END TERMS
As at 18 June 2019