Standard Terms

1. Definitions & Interpretation

1.1 Definitions

In this Agreement, unless contrary to or inconsistent with the context:

‘After Hours Hourly Rate’ means the rate specified at Item 4D of the Package Details.

‘Agreement’ means this agreement, each schedule to this agreement, any supplementary documents expressly incorporated into this agreement.

‘Business’ means the business carried on by You.

‘Business Day’ means the day on which trading banks are open for business in Canberra, but does not include a Saturday, Sunday or public holiday.

‘Business Hours’ means 9 am until 5 pm on a Business Day in the ACT.

‘Claim’ means any claim, action, suit, demand, proceedings, notice, litigation, investigation or judgement whether based in contract, tort, or under statute or otherwise.

‘Cancellation Fee’ means the fee specified at Item 4F of the Package Details.

‘Commencement Date’ is the date specified at Item 2 of the Package Details.

‘Confidential Information’ means all confidential or proprietary information, regardless of its form, disclosed by a Party (the ‘Disclosing Party’) to the other Party in connection with this Agreement which is either marked as confidential or which a reasonable person would regard as being confidential, but does not include information which:

is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence;
was rightfully in the Party’s possession prior to receipt from the Disclosing Party;
the Party already knew before receiving the information from the Disclosing Party;
has been independently developed or acquired by the Party who is not the Disclosing Party; or
was obtained by the Party from a source other than the Disclosing Party, other than through breach of an obligation of confidence.

‘Extra Services’ means:

all services provided by CRE8IVE to You which are not Included Services; and
the supply of labour, supervision, CRE8IVE’s Equipment, Goods, services and all other things necessary to perform the Extra Services, except as may otherwise be provided or required to be provided by You.

‘Goods’ means any equipment, goods, materials, fittings, machinery, parts and other items supplied by CRE8IVE to You in the performance of the Services.

'Expiry Date’ is the date specified at Item 3 of the Package Details.

‘Hours Allowance’ means the hours specified at Item 4B of the Package Details.

‘Hourly Rate’ means the rate specified at Item 4C of the Package Details.

‘Included Services’ means for the ‘URLs Covered’ as specified at Item 1 of the Package Details:

the services specified as “included” in the table to this Agreement titled “Included Services”; and
the supply of labour, supervision, CRE8IVE’s Equipment, Goods, services and all other things necessary to perform the Included Services, except as may otherwise be provided or required to be provided by You.

‘Insolvency Event’ means:

in the case of an individual or partnership:
1. the commission of an act of bankruptcy by a person under any Law;
2. the entering into of any arrangement, or the transfer of any assets, for the benefit of creditors;
3. an admission that any debts cannot be repaid;
4. anything analogous or of the same effect to any of the events described above; and
in the case of a body corporate:
1. the entering into of any arrangement or composition with its creditors whether under the provisions of the Corporations Act 2001 (Cth) or otherwise;
2. appointing an administrator or a controller (within the meaning of those expressions in section 9 of the Corporations Act 2001 (Cth)) over the whole or any part of its assets or undertaking;
3. if a petition is presented for its winding up and it is not stayed, withdrawn or discharged within 21 days or a resolution is passed for its winding up;
4. if execution, distress or other like process of any court or authority is levied upon any of its property for an amount exceeding $10,000 without it being paid, satisfied, withdrawn or discharged within 21 days; or
5. the appointing of a provisional liquidator in respect of its undertaking.

‘Intellectual Property’ means all present and future copyright, registered and unregistered trademark, patent, design or circuit layout rights and other intellectual or industrial property rights arising from statute, under common law or in equity affecting, relating to or capable of being used or adapted for use in the Business.

‘Interest’ means interest at the Interest Rate.

‘Interest Rate’ means a rate of 10% per annum, compounded daily.

‘Law’ means legislation (including regulations, by-laws, and other subordinate legislation) codes of practice and common law.

‘Liability’ and ‘Liabilities’ means liabilities, Claims, damages, outgoings, losses or Costs of whatever description and whether present, unascertained, contingent or prospective.

‘Minimum Contract Cost’ is specified at Item 4E of the Package Details table.

‘Package Details’ refers to the table of this Agreement headed ‘Package Details’.

‘Parties’ means CRE8IVE and You, and ‘Party’ means either of them.

‘Prepaid Amount’ is the amount specified at Item 4A of this Agreement.

‘Services’ means any and all services or work performed by CRE8IVE for You and includes:

the Included Services; and
any Extra Services;

but it does not include the Excluded Services.

Services Fee’ is defined in clause 5.1.

‘Term’ means the term of this Agreement being the period commencing on the Commencement Date and, unless the Agreement is terminated earlier, terminating on the Expiry Date.

1.2 Interpretation

The following rules of interpretation apply unless the context requires otherwise:

reference to dollars or $ is to Australian currency;
in this Agreement, unless the context requires otherwise, the expressions GST, input tax credit, recipient, supply, tax invoice and taxable supply have the meanings given to those expressions in the A New Tax System (Goods and Services) Act 1999 (Cth) (‘GST Act’).
no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement.

2. Commencement & Term

2.1 Commencement & Term of this Agreement

This Agreement commences on the Commencement Date and continues for the Term unless it is terminated earlier in accordance with the terms of this Agreement.

2.2 Deemed Acceptance

You will be deemed to have accepted the terms and conditions of this Agreement, regardless of whether You have signed it, if You accept Services from CRE8IVE after having received a copy of this Agreement.

2.3 If You Continue to Engage CRE8IVE after the Expiry Date

If CRE8IVE, with your consent or at your request, continues to provide Services after the Expiry Date, unless otherwise agreed in writing:
1. CRE8IVE’s engagement is on a month-to-month basis (the ‘Periodic Engagement’); and
2. the terms of this Agreement apply to the Periodic Engagement as far as they may be applicable; and
3. either CRE8IVE or You may end the Periodic Engagement by giving at least one (1) month’s written notice to the other, expiring at any time.

3. scope of services

3.1 Scope of Services

CRE8IVE will provide the Services:
1. with due diligence and in a proper and efficient manner; and
2. in accordance with:
  1. this Agreement; and
  2. generally accepted industry and professional standards and practices.

3.2 Variations to Included Services

You and CRE8IVE, in consultation with each other, may agree to vary the Included Services from time to time subject to clause 3.2(b)
A variation to the Included Services shall only be effective if the variation is in writing and each Party signs it.

3.3 Extra Services

You and CRE8IVE, in consultation with each other, may agree that CRE8IVE is to provide Extra Services from time to time
You and CRE8IVE, in consultation with each other, may agree to vary the Extra Services from time to time subject to clause 3.3(c).
A variation to the Included Services shall only be effective if the variation is in writing and each Party signs it.

3.4 Hours of Operation

The Included Services will be provided during Business Hours.
Services provided outside of Business Hours will be treated as Extra Services under this Agreement

4. The Parties Responsibilities

4.1 CRE8IVE’s Obligations

In accordance with the terms and conditions of this Agreement CRE8IVE will:
1. provide You with the Included Services; and
2. provide You with tax invoices for the Services Fee as and when CRE8IVE considers appropriate, but not more frequently than once a month or as agreed in writing by You and CRE8IVE.
CRE8IVE may:
1. provide You with Extra Services;
2. suspend providing the Services to You in the event You fail to pay the Services Fee as and when it falls due;
3. charge Interest on the Services Fee where it (or any part of it) remains unpaid for longer than 10 Business Days;
4. after consultation with You, increase the Services Fee in the event that the cost to CRE8IVE of providing the Services increases because:
  1. Extra Services are requested by You on an ongoing basis;
  2. of any new or modified computer equipment or software used by You; or
  3. of a change in the complexity of your website;
  4. of the exceeding by CRE8IVE of Hours Allowance on an ongoing basis; or
  5. You change the location/s at which CRE8IVE is to provide the Services or You require CRE8IVE to work at additional locations to provide the Services.

Note: In this event, it may be appropriate for the Parties to sign a new services level agreement.

c. CRE8IVE will not be responsible for:

any repairs, rectification of defects or errors caused by:
1. computer and related equipment or software used by You and not approved by Us in writing for use in connection with the Services;
2. any unauthorized modification of the Services, or any software provided as part of the Services;
3. malicious operator damage;
4. Services, computer and related equipment or software that are the subject of a warranty under another agreement;
5. main supply electrical surges, lightning strikes or water damage;
6. neglect or misuse by You or unauthorized or unqualified persons;

ii. the purchase, or relocation, by You of computer and related equipment, software or consumables to enable CRE8IVE to provide the Services.

4.2 Your Obligations

Under this Agreement, your responsibilities include:
1. to pay the Services Fee and Interest (where applicable) to CRE8IVE in accordance with this Agreement:
2. to reimburse CRE8IVE upon the provision of a tax invoice for the cost of any computer and related equipment, software or consumables purchased by CRE8IVE on your behalf or at your request;
3. to ensure that any computer or related equipment or software relevant to the Services are used in a proper manner by competent and trained persons of your Business;
4. to provide CRE8IVE with the access and assistance that CRE8IVE may require to provide the Services (including, for example, the password to your and access to your Server room to provide the Services);
5. to ensure that your staff are available to provide such assistance as CRE8IVE reasonably requires;
6. to ensure that CRE8IVE is given reasonable access to your staff to enable CRE8IVE to provide the Services;
7. to provide all information reasonably required to enable CRE8IVE to provide the Services;
8. to ensure that You have appropriate agreements in place with third party providers to enable CRE8IVE to provide the Services under this Agreement;
9. review, user acceptance testing (UTA) and approval of all tasks before deployment to any production environments;
10. to ensure your Business complies with all Laws and regulations. To avoid doubt, to the maximum extent permitted by Law, it remains your sole responsibility to obtain (and You rely upon) your own legal advice as to the identification and interpretation of any and all relevant Laws, rules and regulations that may affect your Business and any actions that You may need to take to comply with such Laws; and
11. to ensure that all information and content provided by You to CRE8IVE is legally sourced and can be published without redress or Liability.

4.3 Indemnity

You indemnify CRE8IVE against any and all loss suffered or incurred as a result of your breach of this Agreement.

5. CRE8IVE’S FEES

5.1 Services Fee

You must pay the higher
the Minimum Contract Cost; and
the total of:
1. the Pre-Paid Amount, which covers the provision of Included Services for the Hours Allowance; and
2. after the Hours Allowance has been reached, the Hourly Rate for the provision of any further Included Services; and
3. any and all amounts due and payable for Extra Services.

5.2 Cost of Extra Services

In the event that the Parties have not agreed to the applicable rate for any Extra Services, then the applicable rate shall be as follows:

for Extra Services provided during Business Hours, the Hourly Rate; and
for Extra Services provided outside Business Hours, the After Hours Hourly Rate.

5.3 Payment Terms

You must pay:
the Pre-Paid Amount monthly, in advance, due and payable on the first day of the month; and
the balance of the Services Fee must be made within 28 days from the date of receipt of an invoice from CRE8IVE.

6. CONFIDENTIAL INFORMATION & INTELLECTUAL PROPERTY

6.1 Confidential Information

All Confidential Information exchanged between the Parties under this Agreement or during the negotiations preceding this Agreement is confidential to the disclosing Party and may not be disclosed by the recipient to any other person except:
1. to employees, legal advisers, auditors and other consultants of the recipient or its related bodies corporate requiring the Confidential Information for the purposes of this Agreement;
2. with the written consent of the Party who supplied the Confidential Information, which consent may be given or withheld with its absolute discretion;
3. if the information is, at the date this Agreement is entered into, lawfully in the possession of the recipient of the Confidential Information through sources other than the Party who supplied the Confidential Information;
4. if required by Law or the rules of a stock exchange;
5. if strictly and necessarily required in connection with legal proceedings relating to this Agreement; or
6. if the Confidential Information is generally and publicly available other than as a result of a breach of confidence by the person receiving the information.
Both Parties acknowledge that they will take all action necessary to maintain the confidential nature of the Confidential Information provided to them by the other Party.
Each Party has the right to equitable relief against the other Party, in addition to any other rights available under this Agreement or at Law, if the other Party breaches their obligation of confidentiality.

6.2 Ownership of Intellectual Property

Any Intellectual Property created during the Term or a Periodic Engagement under clause 2.3, by CRE8IVE to provide the Services (‘New CRE8IVE IP’) is the property of and belongs to CRE8IVE.

6.3 Use of Intellectual Property

Where CRE8IVE provides any material to You in the course of its provision of the Services containing New CRE8IVE IP or rights to it, CRE8IVE grants a perpetual, non-exclusive, irrevocable, worldwide, royalty-free licence to You to use the New CRE8IVE IP for any purpose relating to your Business, and without limiting the generality of this clause 6.3(a), You may:
1. sublicense the use of that New CRE8IVE IP to clients, customers or any third party; and/or
2. permit any person to use that New CRE8IVE IP.
Where CRE8IVE provides any material to You in the course of its provision of the Services containing Intellectual Property or rights to it:
1. in existence prior to the commencement of the Term; or
2. which was otherwise developed independently of this Agreement,

(‘Existing CRE8IVE IP’), CRE8IVE grants a perpetual, non-exclusive, irrevocable, worldwide, royalty-free licence to You to use the Existing CRE8IVE IP for any purpose relating to your Business, and without limiting the generality of this clause 6.3(b) You may:

sublicense the use of any Existing CRE8IVE IP to clients, customers or any third party;
permit any person to use the Existing CRE8IVE IP.

c. Where You provide any material to CRE8IVE for the purposes of this Agreement containing Intellectual Property:

in existence prior to the commencement of the Term; or
which was otherwise developed independently of this Agreement

(‘Your Existing IP’), You grant to CRE8IVE a limited, non-exclusive, revocable licence to reproduce the Your Existing IP solely for the purpose of CRE8IVE performing its obligations under this Agreement, which licence shall expire on earlier of:

(notice from You terminating the licence; and
termination of this Agreement (howsoever arising).

6.4 No Merger

The terms of this clause continue to be binding on the Parties despite the termination or expiration of this Agreement.

7. DISPUTES

7.1 No Proceedings

A Party must not start court proceedings about a dispute arising out of this Agreement unless it first complies with this clause 7, except:

where a Party seeks urgent injunctive relief; or
where the dispute relates to compliance with this clause.

7.2 Notice

A Party claiming that a dispute has arisen must notify the other Party in writing giving details of the dispute.

7.3 Best Efforts to Resolve

Each Party to the dispute must use its best endeavours to resolve the dispute by negotiation within 5 Business Days following receipt of notice of the dispute or a longer period agreed in writing by the other Party to the dispute.

7.4 Dispute not Settled by Negotiation

If the Parties do not settle the dispute or difference by negotiation within 15 Business Days after the notice of the dispute is given, the notice of the dispute is to be taken to be the reference of the dispute or difference to arbitration, and the dispute or difference is to be determined by an independent expert.

7.5 Independent Expert

The independent expert is to be appointed as follows:

the Parties may jointly appoint such sole independent expert as they may agree within 25 Business Days after the notice of the dispute is given; or
if an independent expert is not jointly appointed within that period, any Party may request the Australian Disputes Centre Limited to appoint the expert.

7.6 Conduct of Dispute

The dispute resolution is to be conducted in accordance with the rules of the Australian Disputes Centre Limited.
Each Party may be represented by one or more duly qualified legal practitioners or other representatives.
All evidence and submissions to the independent expert are to be in writing unless the independent expert otherwise directs or the Parties otherwise agree.
The independent expert is to have authority to give a Party such relief as could be ordered by a court having the appropriate jurisdiction.

7.7 Indemnity

Each of the Parties agree to indemnify the independent expert against any loss, Liability, cost or expense incurred or suffered by the independent expert arising from or in connection with the dispute resolution.

8. LIABILITY

8.1 CRE8IVE’s Liability

Under applicable Law (including, without limitation the Competition and Consumer Act 2010 (Cth) (the ‘CCA’)) certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (‘Non-Excluded Guarantees’).
Nothing in this Agreement purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees:
1. CRE8IVE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Services; and
2. CRE8IVE’s Liability in respect of these warranties is limited to the fullest extent permitted by Law.
If You are a consumer within the meaning of the CCA, CRE8IVE’s Liability is limited to the extent permitted by section 64A of Schedule 2 of the CCA.
To the extent permitted by Law, CRE8IVE’s Liability for anything done, or failed to be done, in connection with the Services shall be limited to:
1. in the case of a Liability arising out of Goods - the replacement or repair of the Goods, or the payment to You of the cost of the replacement or repair of the Goods; and
2. in the case of a Liability arising out of services - the resupply of the Services or the payment to You of the cost of the resupply of the Services.
Where CRE8IVE’s Liability may not be limited as described above at clauses 8.1(c) to 8.1(e) inclusive then, except in relation to Liability for personal injury or death resulting from negligence, CRE8IVE’s Liability in damages, expenses and costs in respect of any act or omission by CRE8IVE in connection with its obligations under this Agreement will not exceed the amount for which CRE8IVE has invoiced You in respect of that part of the Services giving rise to the relevant Liability.
You agree that in no circumstances will CRE8IVE be liable for:
1. any loss (consequential or otherwise) of actual or prospective profits, opportunities or productivity, wasted overheads or expenses, machine work, labour changes, loss of or corruption of data or software or recovery of data; or
2. any indirect, special, punitive or exemplary damages arising out of or in connection with this Agreement.

8.2 Thirty-Party Software or Integration & Non-CRE8IVE Products

CRE8IVE is not responsible for any damage or loss (including consequential loss) that may arise as a result of:

third-party software or products; or
integration points with any third-party software or products,

(including any software or product recommended by CRE8IVE).

9. TERMINATION

9.1 Notice of Breach

If a Party commits a breach of this Agreement (the ‘Defaulting Party’), the other Party may give written notice to the Defaulting Party:

specifying the breach; and
requiring its rectification in the period reasonably specified in the notice.

9.2 Termination for a Party’s Default

Subject to clause 9.2(b), either Party may terminate this Agreement immediately, without prior notice to the other Party, if:
1. the other Party commits a material breach of the Contract and that breach is not remedied within 10 Business Days after the receipt of written notice of the breach; or
2. the other Party suffers an Insolvency Event.
A Party terminating this agreement pursuant to clause 9.2(a) must notify the other Party in writing of the termination.
Where this Agreement is terminated by CRE8IVE pursuant to this clause 9.2, the rights and Liabilities of the Parties will be the same as they would have been at Law had You repudiated the Agreement and CRE8IVE elected to treat the Agreement as at an end and recover damages.
Where this Agreement is terminated by you pursuant to this clause 9.2, the rights and Liabilities of the Parties will be the same as they would have been at Law had CRE8IVE repudiated the Agreement and You elected to treat the Agreement as at an end and recover damages however, You agree that your right to damages is limited as follows:
1. CRE8IVE’s aggregate monetary Liability is subject to the limitations set out at clause 8; and
2. the aggregate amount of any and all damages recoverable will not exceed an amount equal to the Pre-Paid Amount for three (3) months.

9.3 Cancellation By Notice

Subject to clause 9.3(b) You may terminate this Agreement at any time during the Term and for any reason, by providing one (1) month’s written notice to CRE8IVE.
In the event that You terminate this Agreement pursuant to this clause 9.3, You must pay the Cancellation Fee specified at Item 4F of the Package Details.
Where You terminate this Agreement pursuant to this clause 9.3:
1. CRE8IVE will be entitled to by paid by You:

the Pre-Paid Amount (in full) for the month in which the date of termination falls; plus
if the Hours Allowance has been reached for the month in which the date of termination falls, then for those hours which exceed the Hours Allowance, the Hourly Rate for the Included Services rendered; plus
for Extra Services rendered until the date of termination; plus
the Cancellation Fee; plus
any amount due to CRE8IVE and not yet paid under this Agreement; and
1. the Minimum Contract Cost is no longer applicable; and
2. neither Party shall otherwise have any Claim against the other arising from the termination of this Agreement.

9.4 Termination by CRE8IVE by Notice

Not with standing any clause to the contrary in this Agreement, CRE8IVE may terminate this Agreement, at any time during the Term and for any reason, by providing You with three (3) months’ written notice of termination.
Where CRE8IVE terminates this Agreement pursuant to this clause 9.4:
1. CRE8IVE will be entitled to by paid by You:
  1. the Pre-Paid Amount (in full) for the month in which the date of termination falls; plus
  2. if the Hours Allowance has been reached for the month in which the date of termination falls, then for those hours which exceed the Hours Allowance, the Hourly Rate for the Included Services rendered; plus
  3. for Extra Services rendered until the date of termination; plus
  4. the Cancellation Fee; plus
  5. any amount due to CRE8IVE and not yet paid under this Agreement; and
2. the Minimum Contract Cost is no longer applicable; and
3. neither Party shall otherwise have any Claim against the other arising from the termination of this Agreement.

9.5 Consequences of Termination

After termination of this Agreement, unless otherwise agreed, CRE8IVE shall not represent themselves as being in any way connected with or interested in your Business.

10. MISCELLANEOUS

10.1 Goods and Services Tax (GST)

With the exception of any amount payable under this clause 10, unless otherwise expressly stated, all amounts stated to be payable in this Agreement are exclusive of GST.
If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay to the person who makes the supply (‘Supplier’) an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount must be made at the same time as payment for the taxable supply is required to be made under this Agreement.
The Supplier must provide a tax invoice as required under the GST Act.
If this Agreement requires a Party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (‘Reimbursable Expense’) suffered or incurred by another Party, the amount required to be paid, reimbursed or contributed by the first Party will be the sum of:
1. the amount of the Reimbursable Expense less the input tax credits (if any) to which the other Party is entitled in relation to the Reimbursable Expense; and
2. if the other Party’s recovery from the first Party is a taxable supply, any GST payable in relation to that supply.
The recipient agrees to indemnify the Supplier in relation to any interest, fine, penalty, additional tax or other sum levied against the Supplier for non-payment or delayed payment of GST to which amounts payable by the recipient under this clause are related and which amounts the recipient has not paid or delays paying.

10.2 Notices

A notice or other communication given under this Agreement including, but not limited to, a request, demand, consent or approval, to or by a Party to this Agreement:
1. must be in legible writing and in English;
2. must be addressed to the addressee at the address, fax number or email address set out in this Agreement at the sections headed “Contact Information for You” and “Contact Information for Cre8ive”, or to any other address or fax number or email address a Party notifies to the other under this clause 10.2;
3. must be correctly executed by the Party or the Party’s solicitor; and
4. is deemed to be received by the addressee in accordance with clause 10.2(b).
Without limiting any other means by which a Party may be able to prove that a notice has been received by another Party, a notice is deemed to be received:
1. if sent by hand, when delivered to the addressee;
2. if by post, two (2) Business Days after the date of postage;
3. if sent by email, on the day the email is sent.
If the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is deemed to be received at 9.00 am on the following Business Day.
In this clause, a reference to an addressee includes a reference to an addressee's officers, agents or employees.

10.3 Sub-contracting

CRE8IVE must not, without your prior written consent, sub‑contract any of the Services to a third party.
You may not unreasonably withhold your consent to the use by CRE8IVE of subcontractors, if CRE8IVE is able to satisfy You that the subcontractors are competent and able to perform the Services in accordance with the requirements of this Agreement.

10.4 Governing Law

This Agreement is governed by the Laws of the Australian Capital Territory (the ‘Jurisdiction’).
Both You and CRE8IVE submit to the non-exclusive jurisdiction of the courts of the Jurisdiction in relation to all matters arising under this Agreement.
Both You and CRE8IVE irrevocably waive any objection they may now or in the future have to the venue of any proceedings where that venue falls within the Jurisdiction.

10.5 Severance

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

10.6 CRE8IVE Default

CRE8IVE will not be deemed to be in default of the observance or performance of any of CRE8IVE’s obligations pursuant to this Agreement unless:
1. You first give notice in writing to CRE8IVE specifying in detail the basis upon which You allege default; and
2. You allow CRE8IVE a reasonable time to rectify any default so claimed and CRE8IVE either fails or refuses to take appropriate steps to so rectify the default.

10.7 Waiver

Waiver of a breach or of any right of election arising from a breach of this Agreement must be in writing and signed by the Party granting the waiver.
A breach or any right of election arising from a breach of this Agreement is not waived by any failure to or delay in the exercise, or partial exercise, of that right of election or any other right.

10.8 Assignment

This Agreement is personal to the Parties and, except as provided otherwise, neither Party may assign, transfer or sub-license any of its rights or obligations hereunder without the prior written consent of the other Party.

10.9 Amendments

This Agreement may not be varied except in writing signed by all Parties.

10.10 Rights cumulative

Subject to any express provision in this Agreement to the contrary, the rights of a Party under this Agreement are cumulative and are in addition to any other rights of that Party.

10.11 Survival of Obligations

The obligations of Party contained in this Agreement that are intended to survive its termination, will continue in force for the benefit of the other Party.

10.12 Entire Agreement

This Agreement contains the entire agreement of the Parties with respect to its subject matter. It sets out the only conduct relied on by the Parties and supersedes all earlier conduct, prior representations, agreements, statements and understandings (whether verbal or in writing.