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| 19. |
DEFINITIONS |
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In this Agreement, unless a contrary intention appears:
‘Confidential Information’ means all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to either party, their sub-licensees, agents, employees, End Users, the Development Plan, Documentation, Services, Website, Intellectual Property Rights, its affairs or businesses, sales, marketing or promotional information, the terms of this Agreement, the fees payable under this Agreement, and including any such information in the party's power, possession or control concerning or belonging to any third party. However it does not include information:
(a) where the information is, or becomes part of the public domain, otherwise than by breach of this Agreement; or
(b) where the information is lawfully obtained from another person without any restriction as to use and disclosure; or
(c) where the information was in either party's possession prior to disclosure to it by the other party.
‘Developer Proprietary Rights’ means Intellectual Property Rights that were created, developed or acquired by the Developer, or any subcontractor, other than for the purposes of providing the Website or Services under this Agreement including:
(a) any computer programs and computer code developed by the Developer, or any subcontractor; and
(b) which computer programs and computer code may be included in the computer programs which operate the Website.
‘Development Fee’ means the amount payable to the Developer as set out in Clause 7 of the Web Sessions Web Design and Software Development Order Form.
‘End User’ means any person who accesses the Website.
‘Error’ means where the computer code used in the Website is incorrectly written or does not perform the intended function or effect.
‘Fee Structure’ means the payments required by clause 7 of the Web Sessions Web Design and Software Development Order Form.
‘Final Concept’ means the written material and artwork describing:
(a) the structure of the Website;
(b) the outline of the internal navigation of the Website; and
(c) the contents of Website.
‘GST’ means any goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any associated legislation and regulations, or a tax of a like or analogous nature that is imposed, assessed or levied in relation to any supply made of goods, services or any other thing under this Agreement.
‘Insolvency Event’ means, in relation to a party:
(a) a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official, appointed over any of the assets or undertaking of the other party;
(b) the party suspends payment of its debts generally;
(c) the party is, or becomes unable to, pay its debts when they are due or is, or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act;
(d) the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(e) the party ceases to carry on business or threatens to cease to carry on business;
(f) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; or
(g) an application or order is made for the winding up or dissolution of the other party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the other party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first party.
‘Intellectual Property Rights’ means any and all intellectual and industrial protection rights throughout the world including copyright (past, present and future copyright and rights in the nature of or analogous to copyright).
‘Internet Service Provider’ means the Developer.
‘Moral Rights’ means rights of integrity, rights of attribution and rights of an analogous nature which may now exist and which may exist in the future in respect of the licensed property.
‘Project Manager’ means the person or persons nominated as the "authorised person" in the Web Sessions Web Design and Software Development Order Form who will manage the development of the Website on behalf of the Customer.
‘Related Body Corporate’ means, in relation to that party, a body corporate related to that party under s 50 of the Corporations Act.
‘Services’ means the services to be provided by the Developer under this Agreement.
‘Termination Event’ means:
(a) an Insolvency Event;
(b) an event specified in clauses 3.3 and 8.3; or
(c) a Force Majeure Event that continues for more than twenty-eight (28) Business Days.
‘Third Party Rights’ means Intellectual Property Rights owned by or licensed to third parties including:
(a) computer programs owned by third parties and licensed by the Developer and any subcontractors to develop the Website; and
(b) any literary, dramatic, artistic and musical works owned by third parties and licensed for inclusion in the Website.
‘Training’ means the training to be provided by the Developer.
‘Website’ means the Website described in the services, products and software specified in the Web Sessions Web Design and Software Development Order Form.
‘Web Server’ means the Developer's computer server on which the Website is located and at which the Website can be accessed from computers linked to the World Wide Web.
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