Terms & Conditions for Ad Hoc Projects

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Watch Me Think agrees to supply the Client with the Services in accordance with these terms and conditions, and as set out in the Proposal/Order Form. By signing the Proposal/Proposal/Order Form, the Client accepts and agrees to the terms and conditions set out below.

Last updated on 18 September 2017

1. Definitions and Interpretation

1.1. Definitions

In these terms and conditions, the terms used have the following meanings:

Agreement: These terms and conditions for ad hoc projects between Watch Me Think and the Client including the Proposal/Order Form.

Authorised User: The Client, employees and contractors of the Client located in the region(s) identified in the Proposal/Order Form, and such other persons authorised by Watch Me Think to access and use the Services as identified in the Proposal/Order Form or as otherwise agreed in writing by Watch Me Think.

Background Intellectual Property Rights : In respect of a party, Intellectual Property Rights owned by that party which are in existence at the date of this Agreement or come into existence after the date of this Agreement but not in connection with this Agreement.

Client: The entity identified in the Proposal/Order Form as the client and on whose behalf the Proposal/Order Form has been signed.

Client Brief: The Client's instruction brief, questions or requests (either in written or video format) for Thinkers to test or provide feedback or opinion on.

Clip: Any video, review, opinion, comment or other content prepared by a Thinker.

Commencement Date: The commencement date specified on the Proposal/Order Form.

Deliverable: Any Clip, Clip translation, highlight reel, report, analysis or material(s) produced or provided by Watch Me Think under this Agreement, as specified in the Proposal/Order Form or as agreed in writing between the parties from time to time.

Default Rate: 10% per annum, or the maximum rate allowed by applicable law, whichever is lower.

Dispute: Anydispute or disagreement arising out of or in connection with this Agreement, the performance of the Services or the rights or obligations of the parties under this Agreement.

Edible Product: A Product which is a consumable food product intended for human consumption.

Early Termination Fee means the fee payable in clause 14.4 of this Agreement.

Fee: The fee for the Services as set out in the Proposal/Order Form together with all other amounts payable under this Agreement but excluding GST, VAT and any other applicable local taxes.

Free Think Clips: Any Clip Watch Me Think makes available to clients that is not in response to a Client Brief.

Implied Term: Any guarantee, warranty or condition imposed on Watch Me Think and its subsidiaries, affiliates or suppliers as a matter of applicable law pursuant to the Competition and Consumer Act 2010 or other applicable laws in force from time to time.

Intellectual Property Rights: All present and future rights to:

software, screen designs, forms, data base designs, graphics, trade marks, trade names, domain names, logos, get-up, patents, inventions, improvements, developments, discoveries, registered and unregistered design rights, copyrights, circuit layout rights, and all similar rights in any part of the world (including know-how); and
where the rights referred to in paragraph (a) are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such applications.

Proposal/Order Form: The form provided by Watch Me Think and signed by or on behalf of the Client, accepting the terms of this Agreement, specifying particulars of a work order and any further particulars of this Agreement.

Outage : The unavailability or interruption to the performance of all or part of the Services including the Website and/or SES Services.

Product: Any materials, goods, components, device, merchandise, packaging or other product supplied by a Client to a Thinker as part of a Client Brief, or in relation to this Agreement, which has been produced or manufactured by or at the request of the Client.

Proposal to Proceed: A proposal to proceed with a Client Brief, issued by Watch Me Think and approved in writing by the Client.

Services: Market research and related services provided by Watch Me Think including the Website and SES Services, Deliverables and such other services as set out in the Proposal/Order Form.

SES Services: Watch Me Think's online 'search edit share' technology and such services incidental to or ancillary to providing or making the search edit share technology available.

SES Services Terms and Conditions: The terms and conditions for SES Services as displayed on the Website (and as amended by Watch Me Think from time to time).

Term: The period from the Commencement Date until six months after the Deliverables are made available by Watch Me Think to the Client.

Thinkers: The Watch Me Think panel or group of contributors who submit Clips to the Website.

Thinker Terms: Terms for Thinkers as displayed on the Website (and as amended by Watch Me Think from time to time).

Watch Me Think: the relevant Watch Me Think entity specified in the Proposal/Order Form, or if no Watch Me Think entity is specified in the Proposal/Order Form, then Watch Me Think Pty Ltd (ABN 94147167020).

Website: Watch Me Think's website ( WatchMeThink.com), and any other website as may be advised by Watch Me Think from time to time.

1.2. Interpretation

In this Agreement, unless the contrary intention appears:

headings are for convenience only, and do not affect interpretation of this Agreement;
any reference to:

legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, replaced or novated;
a party includes a permitted substitute or a permitted assign of that party;
a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
any thing (including a right, obligation or concept) includes each part of it;
a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every gender; and

any examples used do not limit the scope of operation of the underlying provisions.

2. Term

This Agreement will commence on the Commencement Date and continue for the Term.

3. Services

3.1. Watch Me Think agrees to provide the Services to the Client for the Fee on the terms set out in this Agreement.

3.2. Subject to payment of all Fees, Watch Me Think agrees to provide the Client with access to the Deliverables via the Website during the Term.

3.3. Watch Me Think warrants to the Client that in providing the Services, it will:

use reasonable care and skill and act honestly, in good faith and in accordance with good commercial practice;
comply with applicable laws including all applicable anti-bribery laws, namely, where applicable the US Foreign Corrupt Practices Act 1977 and the UK Bribery Act 2010; and
comply with such Client policies as reasonably requested by the Client and communicated in writing prior to execution of this Agreement or otherwise as agreed in writing by Watch Me Think.

4. Payment and Tax

4.1. The Client agrees to pay Watch Me Think the Fee in cleared funds and without set-off, withholding or deduction, counterclaim or condition of any kind (unless required by law) on the terms set out in this Agreement.

4.2. Watch Me Think may issue invoices for Fees:

for 50% of the Fee, on or after the date a Proposal/Order Form is signed; and
for the remaining 50% of the Fee, on or after the date that the Deliverables are made available to the Client in accordance with this Agreement.

4.3. Invoices must be paid with 30 days of the date of an invoice.

4.4. The entire Fee is non-refundable, however Watch Me Think may in its discretion hold as a credit for the Client for use against future Watch Me Think services, the balance of the Fee once all costs incurred and to be incurred by Watch Me Think in connection with this Agreement and/or an Proposal/Order Form up until the date of early termination have been paid. Any credit held in accordance with this clause 4.4 will automatically be forfeited if not used within 12 months of the date of the early termination of the work order recorded in the Proposal/Order Form.

4.5. Interest is payable at the Default Rate on any amounts owing by the Client to Watch Me Think under this Agreement which remain outstanding after the due date for payment. Interest will accrue daily on the unpaid amount from the day after the due date for payment until the amount is paid in full.

4.6. The Client must pay on demand all costs and expenses incurred by the Watch Me Think in collecting any overdue amount, including any legal fees on a full indemnity basis.

4.7. The Fee is exclusive of any applicable GST, VAT or other local applicable taxes which will be added to the Fee when invoiced. The Client must pay to Watch Me Think an amount equal to the GST, VAT or other local applicable tax or levy payable on or for the taxable supply of the Services subject to receiving a valid tax invoice in respect of such supply at or before the time of payment.

4.8. Without prejudice to Watch Me Think's other rights and remedies, Watch Me Think may withhold or suspend the provision of Services and withhold any Deliverables, if any amount owing under this Agreement is not paid when due.

5. Intellectual Property

5.1. All Background Intellectual Property Rights belonging to the Client or Watch Me Think remain the property of that party.

5.2. Subject to clause 5.1, Intellectual Property Rights created under this Agreement vest in the Client provided that:

All Fees due and payable pursuant to this Agreement have been paid; and
The Client is not in breach of this Agreement.

5.3. The Client grants Watch Me Think an irrevocable royalty free license (including a right to sublicense to the Thinkers and any of Watch Me Think's agents, representatives or contractors) to use the Client's Intellectual Property Rights and Background Intellectual Property Rights including the materials in the Client Brief, in each case for the purpose of enabling Watch Me Think to perform its obligations under this Agreement.

5.4. The Client agrees to comply with any Watch Me Think policies or conditions required in order to use the Website as published on the Website or communicated to the Client from time to time.

5.5. Except to the extent provided in an express license or right granted under this Agreement, Watch Me Think expressly reserves all rights, title and interest in and to the Website, materials on the Website, the Services, and any other Watch Me Think provided technology (together with any fixes, updates and upgrades provided) any Watch Me Think related software, code, script or API and all processing, other software and technology used by Watch Me Think in the provision of the Services, and any copyright, patent, trademark, other intellectual property right or federal or state right in relation to such things and all its Background Intellectual Property Rights, all of which are valuable assets of Watch Me Think.

5.6. Watch Me Think ® is a registered trademark and may be used publicly only with the prior written permission of Watch Me Think. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Website are the property of their respective owners.

5.7. Watch Me Think and all other product or service names or slogans displayed on the Website may not be copied, imitated or used, in whole or in part, without the prior written permission of Watch Me Think or the applicable trademark holder.

5.8. In relation to Clips made available to the Client on the Website, Watch Me Think grants the Client the non-exclusive and non-transferrable right to continue to use the Clips following the termination of the Agreement, strictly for the Permitted Uses set out in clause 7.1 and subject to the Client's ongoing obligations pursuant to clauses 7 and 10.

6. Continuity of Services

6.1. Scheduled Outage

Watch Me Think may make scheduled changes to the Website from time to time. Where practical, Watch Me Think will give the Client reasonable notice of any scheduled Outage that is likely to affect Client's use of the Services and the Website. Watch Me Think will endeavour to make any scheduled Outage at the weekend or at times when Website usage is lower. Usually, a scheduled Outage will last between 5 minutes to 3 hours depending on the nature of the Outage.

6.2. Unscheduled Outage

Unscheduled Outages may occur to the Website due to the application of urgent patches or fixes, urgent or unanticipated maintenance or otherwise as Watch Me Think may determine to be necessary or applied as soon as possible for security or performance reasons. Where practical, Watch Me Think will endeavour to provide Clients using the Website with a warning before the unscheduled Outage occurs.

6.3. Service Warranties

Watch Me Think will use reasonable endeavours to ensure that its server has adequate capacity and bandwidth to support Client usage of and access to the Services.
Subject to clauses 6.1 and 6.2, Watch Me Think will use reasonable endeavours to make the Services available to the Client and its Authorised Users at all times.
In the event of an Outage, Watch Me Think warrants to use its reasonable efforts to remedy any deficiencies in the affected Services.
In respect of an Outage exceeding ten (10) consecutive working days in any calendar year, Watch Me Think may at its option, cancel, credit or refund the Fee (or part of the Fee). This will be the Client's sole remedy in relation to any Outage.

6.4. Outage Liability

Subject to clause 6.3(iv), Watch Me Think excludes all liability whatsoever for any loss, damage, cost, expense, interruption or inconvenience caused by any Outage.

7. Use of Services

7.1. Permitted Uses of Services

During the Term of this Agreement:

The Client may access the Services on the Website;
The Client may allow Authorised Users at the locations specified in the Proposal/Order Form to access the Services on the Website; and
The Client and its Authorised Users may view and display the Deliverables included in the Services for the purpose of internal or external presentations.

7.2. Use of Clips after Term

Following the termination or expiry of the Agreement, the Client may continue to use downloaded Clips and Deliverables that were provided in the Services subject to the terms set out in this Agreement.

7.3. Prohibited Use of Services

The Client must not, and must ensure that its Authorised Users and any third parties with permitted access to the Deliverables do not, do any of the following without the express prior written permission of Watch Me Think:

Remove, alter or obscure Watch Me Think's copyright notices or other means of identification including Watch Me Think's watermark or logo, as they appear on the Services, on the Website;
Provide to any persons who are not Authorised Users, or provide to an Authorised User in a location other than a location specified in the Proposal/Order Form, any Clip or part of the information included in the Services except for use in presentations in accordance with clause 7.1; and
Other than as expressly set out in clause 7.1, the Client may not (and must ensure that its Authorised Users or permitted recipients do not) without the prior written consent of Watch Me Think, distribute or publish any Clip or part of the information included in the Services or the Deliverables on any network, including without limitation the internet, Facebook and YouTube, any social media forum or otherwise publish, broadcast or display any such information in a public forum.

7.4. Client Obligations in respect of Services

The Client acknowledges and agrees that:

It is responsible and liable for any Authorised Users' use of the Website and the Services;
Is responsible for any costs associated with Client and Authorised User access to or use of the Website and Services;
It is responsible and liable for any Authorised User or other person that uses the Client's or an Authorised Users' access details and/or password;
It must not (and must ensure that its Authorised Users do not) tamper with or hinder the operation of the Website or Services, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Website or via the Services; and
It must not create or operate, or assist in the creation or operation, of services competitive or potentially competitive to the Services.

7.5. Content and Publication of Clips

The content of any Clips made available to the Client through the Website are the opinions and perspectives of the Thinkers, not of Watch Me Think. The publication of a Clip on the Website is not an endorsement by Watch Me Think of any Thinker's submission or opinion, recommendation or advice expressed in the Clip. Watch Me Think has not independently verified the truth, accuracy, ownership or integrity of any content submitted by a Thinker. Watch Me Think excludes and disclaims all liability arising out of or in connection with:

the content of a Clip; and
any publication of a Clip or information relating to a Clip, Product or Client Brief by a Thinker in breach of the Thinker Terms.

8. SES Services

If the Client uses Watch Me Think's SES Services in respect of any video that it or an Authorised User uploads and stores on the Website, then Watch Me Think's SES Services Terms and Conditions apply.

9. Client Obligations

9.1. General

The Client will use its best endeavours to ensure:

all information and data provided by it (including billing and contact details provided as part of the customer registration process) or otherwise, is true, accurate, complete and up to date;
each person receiving, accessing or using the Services is an Authorised User or permitted recipient pursuant to this Agreement, who has agreed to comply with this Agreement as if he or she are a party to it; and
it has and will comply with all relevant laws relating to its use of the Website and Services and its placement of any Client Brief to Watch Me Think.

9.2. General Product Warranties

When providing a Product to a Thinker, the Client warrants to Watch Me Think that the Product:

has been produced, manufactured, packaged and supplied strictly in accordance with the relevant consumer protection and product safety regulations and good manufacturing practices;
the use for which the Product has been designed, and the sourcing, manufacture, packaging, and supply of the Product to the Thinker, does not infringe any intellectual property rights of any third party; and
is provided with such other information as is reasonably necessary to ensure that the Thinker is fully informed as to the intended and proper use of the Product, including any lists of ingredients, components or materials and any applicable instruction booklets and/or warning labels concerning the Product.

9.3. Edible Product Warranties

When providing an Edible Product to a Thinker, the Client warrants that:

It has been produced, manufactured, packaged and supplied strictly in accordance with the relevant food safety and hygiene regulations of Australia and good manufacturing practices;
It has not been adulterated or contaminated, and is of good quality, edible, and otherwise fit for human consumption;
The packaging in which the Edible Product is provided to the Thinker specifies an expiration date which is a date after the date by which the Thinker is required to respond to the relevant Client Brief; and
The Thinker is provided with such other information as is reasonably necessary to allow the Thinker to assess, prior to consumption by the Thinker, whether the food product caters for any allergies or specific or cultural dietary requirements of the Thinker, including a comprehensive ingredient list and, if necessary, warning labels concerning the Edible Product.

9.4. Client Undertakings

The Client:

(i) will take all reasonable steps to ensure that any Authorised User will keep Website and Services login information and passwords and the Client's account details safe and secure; and
(ii) will promptly notify Watch Me Think if it is or becomes aware that there is or has been an unauthorised use of its account, or any other security breach relating to Client's account or the access of an Authorised User.

9.5. Responsibility for Authorised Users

The Client must ensure that all Authorised Users comply with all applicable requirements for use of the Website and the Services as specified in this Agreement.

9.6. Consequence of Breach

If the Client breaches this clause 9, Watch Me Think may immediately suspend the Services and notwithstanding clause 14, terminate this Agreement by notice to the Client, in either case without liability to Client.

10. Confidentiality

Watch Me Think and the Client must keep all information disclosed to the other party and arising under this Agreement as well as the terms of this Agreement, confidential, except where the information forms part of the public record (through no breach of this Agreement) or as required or permitted by law, after having first informed the other party of the requirement to make such disclosure within a reasonable time so as to permit the other party the opportunity to consider the disclosure.

11. Disclaimer of Warranties

11.1. The Website, including the Services and information made available or accessed through the Website, is provided on an 'as is' basis and Client agrees that the existence of errors in the Website or the Services will not constitute a breach of this Agreement by Watch Me Think.

11.2. Except for the warranties set out in clause 3.3 and 6.3, and subject to any Implied Terms, Watch Me Think expressly disclaims any other representation, guarantee, conditions or warranty (express or implied) including any warranty of performance, merchantability or fitness for a particular purpose.

11.3. Unless required by applicable law, Watch Me Think makes no representation or warranty (express or implied) that the Website or Services will:

meet the Client's needs other than as expressly agreed in writing, or set out in a Proposal/Order Form, Client Brief or Proposal to Proceed;
be accessible at all times, other than as set out in clause 6.3(ii);
be accurate, complete or current; or
be free from viruses.

11.4. If an Implied Term applies, Watch Me Think's liability will be limited at its option to the resupply of the Services, or the cost of such resupply, as permitted by applicable law.

11.5. Subject to any express terms in the Proposal/Order Form, Watch Me Think makes no representation or warranty as to the volume or subject area of Services accessible thorough the Website.

11.6. The disclaimers set out in this clause 11 are an essential part of the Agreement, and form the basis for determining the Fee charged for the Services.

12. Limitations of Liability

12.1. Notwithstanding anything to the contrary under this Agreement and subject to any Implied Term, neither party will be liable to the other for any indirect, special, incidental or consequential loss or any exemplary damages arising out of or in connection with the Services, including but not limited to loss of income, loss of finance or interest, loss of opportunity, economic loss or any penalties or fines, whether under contract, tort (including negligence), statute or otherwise.

12.2. The total aggregate liability of Watch Me Think for any claims, losses or damages arising out of or in connection with this Agreement shall not exceed two million dollars in the aggregate (AUS$2 million).

12.3. Watch Me Think's liability is reduced proportionately in the event that the Client caused or contributed to any claim or loss suffered by Client.

13. Indemnification

Each party shall indemnify the other party (including its directors, and employees) from and against any and all claims, losses, damages, costs and expenses, incurred or suffered by a party in connection with any claim caused directly by:

the other party's breach of this Agreement; and/or
Watch Me Think's negligent performance of Services under this Agreement.

Each party's obligation to indemnify the other party shall be reduced to the extent the indemnified party's acts error's or omissions caused or contributed to the loss, claim, cost or damage suffered or incurred by that party.

14. Termination

14.1. Termination by Watch Me Think

Watch Me Think may terminate this Agreement:

Subject to subclause (b) below, immediately upon breach by the Client of this Agreement, by giving written notice to the Client, if the breach is a payment default or the breach is not, in Watch Me Think's opinion, reasonably capable of cure within 14 days; or
if the breach is not a payment default and the breach is, in Watch Me Think's opinion, reasonably capable of cure within a 14 days, on fourteen (14) days prior written notice to the Client; or

Watch Me Think may terminate this Agreement immediately by giving notice to the Client on the occurrence of any of the following insolvency related events:

the commencement of a voluntary case or other proceeding seeking liquidation, reorganisation or other relief with respect to the other Party of its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect, that authorises the reorganisation or liquidation of the other Party or its debt or the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property;
the other Party consenting to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it;
the other Party making a general assignment for the benefit of creditors;
the other Party becoming insolvent; or
the other Party taking any corporate action to authorise any of the foregoing.

14.2. Termination by Client

The Client may terminate this Agreement without cause, on giving at least 30 days prior written notice to Watch Me Think, in which case the Early Termination Fee will become due and payable within 14 days of the date on which notice of termination was given to Watch Me Think.

14.3. Effect of Termination

Upon termination:

Subject to clause 7.2, Watch Me Think may cease access by the Client and any Authorised Users the Website and the Services.
The Client must immediately cease to distribute or make available the Services to Authorised Users.
The Client must immediately pay all unpaid Fees including the Early Termination Fee.

14.4. Early Termination Fee

The Client must pay, on demand, the Early Termination Fee to Watch Me Think equal to the full amount of the Fee that remains unpaid pursuant to this Agreement (whether invoiced or not).
The Client understands and acknowledges that:

the Fee reflects all Client on-boarding and project establishment costs;
except as provided for in clause 4.4 or as required by law, the Client is not entitled to a refund or credit of all or any part of the Fee already paid; and
once demand has been made in accordance with 14.4(i), the Early Termination Fee is a debt due and payable by the Client to Watch Me Think.

At the direction of Watch Me Think, the Client must destroy or return all confidential information of Watch Me Think.

14.5. Access to Deliverables

Except as expressly provided in this Agreement or as required by law, Watch Me Think will enable Deliverables to be viewed on its Website during the Term, after which time Watch Me Think may in its discretion delete, destroy or remove from its Website any Deliverable or information provided, posted or received by it in connection with the Services.

15. Disputes

15.1. If a Dispute arises, either party may at any time give written notice to the other party requesting that a meeting take place to seek to resolve the Dispute. If such notice is given:

nominated senior representatives of both parties must meet within 5 days of the notice and endeavour to resolve the Dispute;
if such meeting does not take place or if after 5 days of the meeting the Dispute remains unresolved, either party may refer the Dispute to the CEO of the Client and CEO of Watch Me Think.

15.2. If a Dispute is referred to the CEO of the Client and the CEO of Watch Me Think, such persons must meet within 5 days of the Dispute being referred to them and endeavour to resolve the Dispute.

15.3. If such meeting does not take place or if after 5 days of the meeting the Dispute remains unresolved, either party may pursue its rights at law.

15.4. Each party must continue to perform its obligations under this Agreement during a Dispute.

15.5. Nothing in this clause 15 restricts or limits the right of either party to seek injunctive relief.

16. General

16.1. (No Assignment): The Agreement may not be assigned by either party to any other person or organization without the prior written consent of the other party. Such consent will not be unreasonably withheld.

16.2. (Set-Off): Watch Me Think may set off, deduct or withhold any amount owing by Watch Me Think to the Client, against any amount owing by the Client to Watch Me Think.

16.3. (Variations): Any changes or variations to the Proposal/Order Form must be in writing and signed by both parties.

16.4. (Survival of clauses): Clauses 4 (Payment and GST), 5 (Intellectual Property), 7 (Use of Services), 10 (Confidentiality), 9 (Client Obligations and Warranties), 13 (Indemnity) and 14 (Limit of Liability) are material terms of this Agreement and survive the termination of this Agreement.

16.5. (Invalidity): In the event that any part of the Agreement, including any provision of these terms and conditions, is held to be invalid, the remainder of the Agreement, including the remaining provision of these terms and conditions, will continue in full force and effect.

16.6. (No Waiver): The failure, delay, relaxation or indulgence by a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right, or remedy. All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.

16.7. (Entire Agreement): This Agreement contains the entire Agreement between the Parties in relation to its subject matter and supersedes any previous understandings, commitments or agreements, oral or written.

16.8. (Governing Law): These terms and conditions are governed by the laws of Queensland, Australia and the parties agree to submit to the jurisdiction of the Australian Courts.