Terms of Service
Terms of Service
1. DEFINITIONS & INTERPRETATION
In these Terms of Service (Terms) unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) ACL: means the Australian Consumer Law (asset out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(b) Address for Service: a party’s email address or address as set out in the Quote or such other address for service advised by the party to the other parties in writing from time to time.
(c) Client: the client named in the Quote.
(d) Commencement Date: the commencement date set out in the Quote.
(e) Corporations Act: the Corporations Act 2001 (Cth).
(f) Fees: the fees set out in the Quote and any other fees payable by the Client to the Service Provider under these Terms.
(g) Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(i) strikes, lock-outs or other industrial action;
(ii) civil commotion, riot, invasion, cyberattack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19 and variants), health emergencies, disease, or other natural disaster;
(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(v) interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(vi) interruption of networks or third party services (including telecommunication or web services);and
(vii) the acts, decrees, legislation, regulations or restrictions of any government agency, however does not include a lack of funds.
(h) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(i) Insolvency Event:
(i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
(ii) a liquidator or provisional liquidator is appointed in respect of a person;
(iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or(ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
(iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
(v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
(vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
(j) Loss: any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(k) Payment Terms: the payment terms set out in the Quote, being the time that invoices will be issued and the due date for payment of such invoices.
(l) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(m) Premises: the premises set out in the Quote in which the Services are being provided at.
(n) Related Entity: has the meaning given in section 9 of the Corporations Act.
(o) Service Provider: HANUDEV PTY LTD (ABN 96 631 311 745)
(p) Services: the Services set out in the Quote and any other services or goods provided by the Service Provider to the Client.
(q) State: Victoria.
(r) Term: the term of these Terms, commencing on the Commencement Date and ending on the date that it is terminated.
(s) Quote: the initial email or communication that is provided by the Service Provider to the Client that sets out the Services and Payment Terms generally in electronic format emailed to the Client’s Address for Service).
In these Terms the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms.
(c) References to parties are references to the parties to these Terms.
(d) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
(h) A reference to a body (other than a party to these Terms), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including these Terms) includes any amendments to or replacements of that document.
(j) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under these Terms by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under these Terms on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in these Terms after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v) Where these Terms is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(w) These Terms include all schedules, annexures, appendices, attachments and exhibits to it.
(x) A reference to writing or written includes email.
(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. REQUEST FOR SERVICES & QUOTATIONS
2.1 The Client may request the Service Provider provide the Services from time to time, either by using the booking form on the Service Provider’s website or by other methods as approved by the Service Provider. The Service Provider may accept or reject any request at its discretion.
2.2 Once a request for Services with the Service Provider has been received, the Service Provider will provide a Quote to the Client. The Quote will contain the Service Provider’s current Fees as at the date of the request, subject to the other terms of this Agreement.
2.3 Quotes are provided in good faith and on the basis of the information provided by the Client in a request. In the event that the Service Provider inspects the Premises and determines that additional Services are required, the Service Provider reserves the right to vary the Quote as required to carry out the Services, without notice to the Client (this includes without limitation charging additional Fees based on the additional time spent cleaning and the Service Provider’s then current hourly rates). The Client agrees to pay such additional Fees in accordance with these Terms.
3.1 These Terms, including a Quote, will become binding on the Client on the earlier of the date that a) the Client indicates their acceptance of the Terms (such as by ticking an acceptance box at the time of placing a request for Services or by communicating acceptance by email); or b) the Client instructs the Service Provider to proceed with any Services; or c) the Client pays any amount to the Service Provider in respect of the Services.
3.2 These Terms apply to all Services provided by the Service Provider to the Client at any time following the time when these Terms become binding on the Client.
3.3 No invoice, terms or other document issued by or on behalf of the Client (including the terms on any warranty or other agreement given to the Service Provider) will vary or form part of these Terms unless otherwise agreed by the Service Provider in writing. These Terms replace and supersede any invoice, terms or other document given by the Client to the Service Provider whether before or after the time that these Terms are supplied to the Client.
4.1 These Terms will commence on the Commencement Date and continue in accordance with the Quote unless terminated earlier in accordance with its terms.
5. SUPPLY OF SERVICES
5.1 The Service Provider and the Client agree that the Service Provider will provide the Services to the Client on the terms and conditions contained in these Terms.
5.2 The Services will be provided in the manner as set out in the Quote. The Quote will include details of the day of the week and times that the Services will be provided, including any recurring schedule. For example, the Quote may include that the Service Provider will provide cleaning services every fortnight on Friday at 2pm. Where a schedule is agreed to, then it will continue unless and until these Terms are terminated, or the Client gives notice that it wishes to cancel (please note cancellation fees may apply as set out under clause 11).
5.3 Although the parties will agree on the day of the week and times that the Service Provider will provide the Services to the Client. These days and times are estimates only and are subject to change without notice. Whilst the Service Provider attempts to provide all Services at the agreed times, sometimes delays are inevitable (for example heavy traffic or traffic incidents) and the Service Provider will not be responsible for any Losses suffered by the Client in the event of delay nor will the Service Provider be in breach of these Terms. Delayed performance of the Services (within
reasonable timeframes) does not entitle the Client to cancel the Services or terminate these Terms.
5.4 In the event that the Service Provider is unable to provide the Services on the agreed day or at the agreed time, the Service Provider may, acting reasonably, change the day and time upon giving the Client notice and in that case the Client must accommodate that change. The Service Provider will not be considered in breach of these Terms in the event it changes the day and/or time for providing the Services in accordance with this clause.
5.5 In the event that a day for the provision of Services falls on a public holiday in the State, the Service Provider will provide the Services on the next business day following the public holiday (subject to these Terms).
5.6 The Service Provider may subcontract, delegate or perform the Services through any person without the prior written consent of the Client.
5.7 The provision of Services to a third party nominated by the Client shall be deemed to be provision of the Services to the Client for the purpose of these Terms.
6. FEES & PAYMENT TERMS
The Fees for the Services are as set out in the Quote, or where not specified, as advised by the Service Provider. The Service Provider reserves the right to increase the Fees without notice in accordance with
6.2 Payment terms
(a) Unless otherwise specified in the Quote, the Client must pay the Fees in full upfront prior to the scheduled start time of the Services. Unless otherwise agreed, if the Client fails to make payment of the Fees in full prior to the scheduled start time of the Services then the Service Provider is entitled to terminate these Terms, where upon full Fees for the Services will be immediately due and payable (notwithstanding the Services may not have been provided).
(b) Payment is to be made by way of electronic funds transfer into the Service Provider’s nominated bank account.
6.3 Direct Debit Authority
If payment is to be made by direct debit, the Client irrevocably authorises the Service Provider to debit the Fees during the Term without notice from the Client’s nominated account, on or around the date that the Service Provider generates an invoice for the Fees. The Client must ensure that they keep their credit card details up to date at all times and must notify the Service Provider in the event that the details are no longer current, and provide replacement details.
6.4 Processing Fees
The Service Provider’s payment provider may charge a fee depending on the payment method used by the Client (for example, payments made by credit card). The Client agrees to pay such fees at the same time as paying the Fees, even if such fees are not explicitly disclosed. The Fees must be paid in cleared funds.
6.5 Default in Payment
(a) In addition to such rights under clause 6.2 in the event the Client fails to pay the Fees in accordance with these Terms, the Client acknowledges that the Service Provider may at its discretion (and without limitation to any other rights of the Service Provider):
(i) cease providing the Services to the Client without notice until all overdue amounts are paid, and the Service Provider will not be responsible for any Loss the Client suffers because of this;
(ii) charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily until the date of actual payment.
(b) The Client acknowledges that the amounts payable by the Client to the Service Provider under clause 6.5(a) are fair and reasonable and are a reasonable pre-estimate of the Loss that the Service Provider will suffer in the event that the Client fails to comply with the Payment Terms.
(a) The Client must pay the Service Provider all fees without set-off or counter claim under any circumstances, including if a dispute exists in relation to the Services.
(b) All amounts paid to the Service Provider under these Terms are non-refundable to the extent permitted by law.
7. ADDITIONAL SERVICES
7.1 The scope of the Services is as specified in the Quote.
7.2 Should the Client require additional Services outside those specified in the Quote, then the Client may request the Service Provider provide such additional Services, and the Service Provider may accept or reject such request at its sole discretion. If the Service Provider accepts such request then additional Fees will be payable by the Client to the Service Provider, as advised by the Service Provider.
7.3 The Service Provider reserves the right to vary the Services provided where required to for applicable laws or directions provided by a government agency.
8. ACCESS TO PREMISES
8.1 The Client grants the Service Provider and its Personnel a non-exclusive licence to access and occupy the relevant parts of the Premises at which the Services will be provided, as well as a licence to pass through any other areas of any building within which the Premises are located, for the purpose of providing the Services.
8.2 The Client must:
(a) provide the Service Provider with a key or access code to access the Premises;
(b) ensure that the Service Provider has unobstructed access to the Premises at all times during which the Services are being provided;
(c) ensure that the Premises are safe and comply with best practice work health and safety requirements and standards. This includes without limitation:
(i) restraining all pets before the commencement time of the Services;
(ii) ensuring the safety switch for the Premises is operable;
(iii) ensuring all young children are kept away from the relevant parts of the Premises at which the Services will be provided; and
(iv) providing notice to the Service Provider of any hazards, risks or dangers in the relevant parts of the Premises at which the Services will be provided.
8.3 In the event that:
(a) the Service Provider is unable to access all or any part of the Premises for any reason, including if the relevant area is occupied or locked, the access cards or codes provided to the Service Provider do not work or the elevators in the relevant building are out of service; or
(b) the Service Provider or its Personnel determines that all or any part of the Premises is unsafe to access for any reason (including in the event of exposed electrical wiring),the Service Provider shall not be required to provide the Services to the relevant parts of the Premises which it cannot immediately access or that it determines are unsafe (and shall not be required to return at a later date once access/safety is restored). In that case, and notwithstanding that the Services may not have been provided, the Service Provider shall be entitled to charge the full Fees for the Services that would have been provided in the event that the Service Provider had access.
8.4 Unfortunately theft and loss of property may occur and as such we are unable to guarantee that any keys, access cards or codes will remain safe and secure. Because of this, in the circumstances that any of your keys, access cards or codes are lost or stolen, we will not be liable for any costs incurred, except to the extent caused by the negligent act or omission of the Service Provider. The Client is solely responsible for ensuring that its property is kept secure.
8.5 The Client represents and warrants to the Service Provider that it has all necessary rights and authorities to grant the licence contemplated by clause 8.1 and by accessing the Premises in accordance with these Terms the Service Provider will not be infringing any third party rights.
9.1 The Client must provide the Service Provider with notice if they:
(a) have been directed by a government agency or a medical professional to self-isolate due to COVID-19;
(b) have any symptoms of COVID-19 including without limitation fever, respiratory symptoms (coughing, sore throat, shortness of breath, runny nose, loss of taste or loss of smell);
(c) have recently returned from overseas (within the last 14 days);
(d) have been in close contact in the last 14 days with someone who has been diagnosed with COVID-19, or has recently travelled overseas, or has undertaken a COVID-19 test;
(e) have undertaken a COVID-19 test and are awaiting results;
(f) have tested positive to COVID-19; or
(g) otherwise feel unwell. 9.2 Where the Client provides notice of the above, or the Service Provider reasonably believes one of the above items applies, then the Service Provider will reschedule the Services upon giving the Client notice and in that case the Client must accommodate that change.
10. DEFECTIVE SERVICES
10.1 The Client must notify the Service Provider in writing of any defect in the Services within 24 hours of the completion of the Services. The Service Provider may also require the Client to provide evidence of any defect in any Services supplied and the Client must promptly do so. For the avoidance of doubt, if the Client fails to give notice within the 24 hours period, the Client will be deemed to have accepted the Services.
10.2 In the event that the Service Provider, acting reasonably, agrees that the Services supplied were defective, the Service Provider will rectify the defective services as soon as practicable.
11. CANCELLATION POLICY
11.1 Subject to these Terms, once a booking request is made for the Services, the following cancellation terms and fees apply:
(a) if the cancellation is notified to the Service Provider at least 2 hours before the start time of the scheduled booking, then no cancellation fees will apply and the Client will not be required to make any payment for the cancelled booking (or receive a refund of any amounts paid for the cancelled booking);
(b) if the cancellation is notified to the Service Provider less than 2 hours before the start time of the scheduled booking, the Client will be required to pay 100% of the Fees for that cancelled booking.
12.1 Termination without cause
Either party may terminate these Terms at any time and without cause on giving the other party notice. Where the Client terminates under this clause, the Client may be subject to early termination fees in accordance with clause 11. If the Service Provider terminates under this clause without reason, the Service Provider will refund any amounts prepaid by the Client for the cancelled Services.
12.2 Termination with cause Either party (Non-Defaulting Party) may terminate these Terms immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) is in breach of these Terms and fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(b) suffers an Insolvency Event. Where the Client terminates under this clause, the Client agrees to pay the Service Provider for all Services provided by the Service Provider up to the date of termination. If the Service Provider terminates under this clause the Service Provider shall be entitled to charge the full Fees for the Services that would have been provided if not for termination under this clause.
The expiration or termination of these Terms will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of these Terms occurring prior to expiration or termination of these Terms.
13. EFFECT OF TERMINATION
13.1 Upon expiration or termination of these Terms the Client shall be liable to pay to the Service Provider:
(a) for all Fees due as specified under these Terms; and
(b) any other amounts owed by the Client to the Service Provider under these Terms and such amounts shall be a debt immediately due and owing.
14. EXCLUSION & LIMITATION OF LIABILITY
14.1 The Service Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause 14, the Service Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by law.
14.2 The Service Provider and its Personnel are not responsible for the security of the Premises. The Client must ensure that the Premises are secured following the provision of the Services.
14.3 Subject to the other terms of this clause 14, the Service Provider’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with these Terms, including any breach by the Service Provider of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Client to the Service Provider under these Terms in the 3-month period preceding the matter or event giving rise to the claim.
14.4 Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Service Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
14.5 If the Service Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Service Provider’s total liability to the Client for that failure is limited to, at the option of the Service Provider to, the resupply of the services or the payment of the cost of resupply.
14.6 Without limitation to the other terms of this clause 14, the Service Provider excludes any liability to the Client, whether in contract, tort including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms.
14.7 Notwithstanding anything else in this clause 14, the Service Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client or its Personnel.
14.8 The Service Provider will not be liable for any claim under or in relation to or arising out of these Terms including a breach of any warranty unless:
(a) the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
(b) that claim has been denied in whole or partly by the relevant insurer. 14.9 If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of Client’s loss for the purposes of these Terms.
15.1 Except to the extent caused or contributed to by the breach of these Terms by the Service Provider, the Client indemnifies the Service Provider against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Service Provider arising out of or in connection with:
(a) the Client’s breach or negligent performance or non-performance of these Terms, including the failure to pay any Fees in accordance with these Terms;
(b) the Client’s acts or omissions;
(c) the enforcement of these Terms; or
(d) any claim made against the Service Provider by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of these Terms by the Client or its Personnel.
15.2 The Client must make payments under this clause 15:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
15.3 Except where expressly stated to the contrary in these Terms, the rights of a party under this clause 15are in addition to any other rights available to that party whether those rights are provided for under these Terms or by law.
15.4 The indemnities in this clause 15:
(a) are continuing obligations of the Client, independent from its other obligations under these Terms and survive termination or expiry of these Terms; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.
16.1 Restraint on staff
To reasonably protect the Service Provider’s and its Associated Entities’ goodwill and legitimate business interests, during the Restraint Period, the Client must not (and must procure that its Personnel do not) without the prior written consent of the Service Provider, directly or indirectly:
(a) canvass, solicit, approach, interfere, or entice away, or attempt to canvass, solicit, approach, interfere, or entice away, Restricted Staff, to leave their employment or engagement with the Service Provider or an Associated Entity or with a view to engage such Restricted Staff in a Restrained Business;
(b) interfere in any way with the relationship between the Service Provider or an Associated Entity and its Restricted Staff; or
(c) engage in any combination of the above activities.
16.2 Definitions in this clause
(a) Associated Entity means an “associated entity” of the Service Provider, as that term is defined in section 50AAA(1) of the Corporations Act.
(b) engage in means to carry on, conduct, promote, participate in, provide finance or services, or otherwise be directly or indirectly involved or concerned as a shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier.
(c) Restrained Business means any business or operation:
(i) similar to, or competitive with, the Service Provider;
(ii) that operates in the industry of the Service Provider.
(d) Restraint Period means during the term of this Agreement and each of:
(i) twelve months; or if that is not enforceable, then
(ii) six months; or if that is not enforceable, then
(iii) three months; or if that is not enforceable, then
(iv) one month, after the termination of this Agreement.
(e) Restricted Staff means an employee, contractor, officer or agent of the Service Provider or any Associated Entity of the Service Provider:
(i) with whom the Client has had dealings with during the past 12 months of the arrangement contemplated by this Agreement; or
(ii) who was an employee, contractor, officer or agent of the Service Provider or an Associated Entity in the 12 month period before the Client ceased to be engaged by the Service Provider.
16.3 Separate and independent restraints
(a) This clause has effect as if it consisted of several separate covenants and restraints consisting of each separate covenant and restraint set out in clause 16.1 combined with each separate Restraint Period (as applicable) and each separate limb of the definitions of “Restricted Staff” and “Restrained Business” (“Restraint Covenants”) and if any of the Restraint Covenants are or become invalid or unenforceable for any reason then the invalidity or unenforceability does not affect the validity or enforceability of any of the other Restraint Covenants.
(b) This clause shall be interpreted as a goodwill covenant and without reference to, and independent of, any other covenant in restraint of trade contained any other agreement or deed given by the Client.
(c) The promises given by the Client in this clause 16 will apply, and may be enforced against the Client, regardless of the reason(s) for the termination of this Agreement.
16.4 Reasonable and fair restraints
The Client acknowledges and agrees that:
(a) any combination of the acts referred to in clause 16.1 for each separate Restraint Period and Restraint Area would be unfair and calculated to damage the Service Provider and its Associated Entities;
(b) during the Term, the Client will:
(i) have access to the Service Provider’s and its Associated Entities’ Confidential Information;
(ii) have the opportunity to forge personal relationships with employees, contractors, officers, agents, suppliers and clients of the Service Provider and its Associated Entities;
(iii) acquire information and trade secrets about the Service Provider and its Associated Entities, including the employees, contractors, officers, agents, suppliers and clients of the Service Provider and its Associated Entities;
(c) disclosing Confidential Information, or using Confidential Information to the Client’s benefit or the benefit of a competitor of the Service Provider and its Associated Entities, could materially harm the Service Provider’s and its Associated Entities’ business;
(d) the Restraint Covenants contained in this Agreement are reasonable in scope, duration and time, and reasonably necessary to protect the Service Provider’s and its Associated Entities’ goodwill and legitimate interests and are not greater than is reasonably necessary for the proper protection of the legitimate interests of the Service Provider and its Associated Entities, given the nature of their business;
(e) the Client has sought independent legal advice regarding the effect of the Restraint Covenants (or has had a reasonable opportunity to do so and has elected not to);
(f) the remedy of damages may be inadequate to protect the Service Provider’s and its Associated Entities’ legitimate business interests and the Service Provider is entitled to seek and obtain injunctive relief, or any other remedy, in any court; and
(g) the words “directly or indirectly” are to be given the widest possible interpretation and include (without derogation from their generality) such activities through any association or arrangement with any person, relative, nominee or trust in or over which any interest or influence (absolute or partial) is held.
In recognition of the importance of the obligations contained in this clause 16 for the protection of the Service Provider’s and its Associated Entities’ legitimate business interests, this clause 16 will survive the termination of this Agreement in all circumstances, including repudiation by the Service Provider of the remainder of this Agreement.
16.6 No derogatory comments
If this Agreement is terminated or expires, the Client must not make any derogatory comments about the Service Provider to any person.
The Service Provider will take out and maintain during the Term such insurance policies as it considers are necessary for the provision of the Services.
Words used in this clause 18 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
(a) Unless expressly stated otherwise, the consideration for any supply under or in connection with these Terms is exclusive of GST.
(b) To the extent that any supply made under or in connection with these Terms is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under these Terms for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
(c) The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply.
(d) Whenever an adjustment event occurs in relation to any taxable supply to which clause 18.2(b) applies:
(i) the supplier must determine the amount of the GST component of the consideration payable; and
(ii) if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
19.1 All notices authorised or required under these Terms to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party’s Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
19.2 The following shall constitute proof of receipt:
(a) proof by posting by registered post; or
(b) proof of dispatch by email.
19.3 Receipt of a notice given under these Terms will be deemed to occur:
(a) in the case of a communication sent by prepaid registered post, on the third business day after posting;
(b) in the case of an email, on the business day immediately following the day of dispatch.
20. FORCE MAJEURE
20.1 The Service Provider will not be in breach of these Terms or liable to the Client for any Loss incurred by the Client as a direct result of the Service Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms where such prevention, hindrance or delay results from a Force Majeure Event.
20.2 If a Force Majeure Event occurs, the Service Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
20.3 On providing the notice in clause 20.2, the Service Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Service Provider must continue to use all reasonable endeavours to perform those obligations.
20.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
The Service Provider provides the Services to the Client as a contractor, and nothing in these Terms shall be deemed to have created an agency, partnership, employment or other type of relationship between the parties.
22. GENERAL PROVISIONS
22.1 Special Conditions
(a) In the event that the Quote contains any special conditions, those special conditions shall form part of these Terms.
(b) In the event of inconsistency between the special conditions and any other terms of these Terms, the special conditions shall prevail to the extent of the inconsistency.
An amendment or variation of any term of these Terms must be in writing and signed by each party.
22.3 No Waiver
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 22.3(a)include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
22.4 Assignment, Novation and Other Dealings
(a) The Service Provider may assign or novate these Terms upon providing the Client with written notice.
(b) Any rights of the Client that arise out of or under these Terms are not assignable or capable of novation by the Client without the prior written consent of the Service Provider.
These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms.
(a) If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 22.7(a)does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.
22.8 No Merger
On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.
Any clause which by its nature is intended to survive termination or expiry of these Termswill survive such termination or expiry.
22.10 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary togive full effect to these Terms and the transactions contemplated by these Terms.
22.11 Time of the Essence
Time is of the essence in these Terms in respect of any date or time period and any obligation to pay money.
22.12 Relationship of the Parties
(a) Nothing in these Terms gives a party authority to bind any other party in any way.
(b) Nothing in these Terms imposes any fiduciary duties on a party in relation to any other party.
22.13 Remedies Cumulative
Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.
22.14 Entire Agreement
These Terms(including an agreed to Quote) states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
22.15 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms.
22.16 Governing Law and Jurisdiction
(a) These Terms is governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 22.16(b)on the basis that:
(i) any proceeding arising out of or in connection with these Terms has been brought in an inconvenient forum; or
(ii)the courts described in clause 22.16(b) do not have jurisdiction.