This Agreement is entered into between us and you, together the Parties and each a Party.
1. Our Disclosures
This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights. Please read this Agreement carefully prior to accepting this Agreement. By accepting this Agreement, you agree that:
1.2 subject to your Consumer Law Rights, our Liability for the supply of the Services will be limited to, at our discretion the Service Fee paid by you to us;
1.3 this Agreement will automatically renew on a monthly basis until either you provide us with prior notice that you wish to terminate this Agreement or this Agreement expires; and
1.4 a minimum period applies to this Agreement, during which, you will not be able to terminate this Agreement for convenience, and if you do, you are liable to pay us the relevant fee.
2.1 In consideration of your payment of the Service Fee, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
2.2 If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.
2.3 Where we are providing Reports, we will provide such Reports in the format set out in the Proposal.
2.4 Notwithstanding clause 3, you agree that we may amend the Services or the Service Fee at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or Service Fee, you may terminate this Agreement in accordance with clause 13.2.
3.1 All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with the schedule of rates provided by us in the Proposal, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.
4.1 In consideration for us providing the Services, you agree to pay us:
(a) the Service Fee; and
(b) all Expenses (if any),
in accordance with the Payment schedule in the Proposal.
4.2 When applicable, GST is payable on the Service Fee and Expenses and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.
4.3 If any payment has not been made in accordance with the Payment schedule in the Proposal, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at law):
(a) after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment schedule in the Proposal.
5. Additional Services
5.1 You may request the provision of additional services from us (Additional Services), by providing written or verbal notice to us. Following such written or verbal notification, at our discretion, we may accept your request for the provision of Additional Services and set out the fees required for us to undertake such Additional Services. Once you accept the fees for Additional Services, you agree that:
(a) the fees will be considered part of the Service Fee for the purposes of this Agreement;
(b) the Additional Services will form part of the Services where applicable, for the purposes of this Agreement; and
(c) our provision of the Additional Services will be subject to this Agreement and this Agreement will continue to apply until the date we have completed the provision of the Additional Services to you (as reasonably determined by us).
6.1 You acknowledge and agree that we are not responsible to you (or your Personnel) for any failure or delay in providing the Services caused by an Unexpected Delay. We will tell you if there is a delay that will affect the Services and the cause of the delay, if known. You acknowledge that this Agreement may be varied to include any change to the scope of Services, the Service Fee or the timeframes for completion of the Services (if provided) if any delay requires it.
7.1 Where it is necessary to attend your premises to provide the Services, you agree to provide us (and our Personnel) with access to the premises (and the facilities at the Premises) and any other premises as is reasonably necessary for us to provide the Services, free from harm or risk to health or safety:
(a) at the times and on the dates reasonably requested by us or as agreed between the Parties; and/or
(b) to enable us to comply with our obligations under this Agreement or at Law.
7.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause.
8. Warranties and Representations
8.1 You represent, warrant and agree:
(a) to comply with this Agreement and all applicable Laws;
(b) to provide us with full disclosure of all Information relevant to the Services;
(c) that you are responsible for your own record keeping relating to your affairs and retaining paperwork for as long as required by Law;
(d) that all Information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
(e) to comply with our reasonable requests or requirements;
(f) that you (and to the extent applicable, your Personnel) will provide us with all documentation, Information, instructions, cooperation and access reasonably necessary to enable us to provide the Services;
(g) that any information, advice, material, work and services (including the Services) provided by us under this Agreement is an opinion based on our knowledge of your particular circumstances and does not constitute legal, financial, merger, accounting, due diligence or risk management advice;
(h) that our Services are based on our opinions and the findings from examining your documentation and will include our interpretation of the Information provided to us. We make no guarantee or assurance that your implementation of any of our suggestions will result in compliance with, or successful outcome of, any NDIS audit;
(i) you (and your Personnel) are solely responsible for creating and implementing your own decisions, choices, actions, and results arising out of or resulting from the Services and your interactions with us. As such you agree that we are not and will not be liable or responsible for any actions or inaction, or for any direct or indirect result of any Services we provide;
(j) that you must not use, and you must ensure that no person uses, any part of the Services:
(1) to break any Law or infringe any person’s rights (including Intellectual Property Rights);
(2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(3) in any way that damages, interferes with or interrupts the supply of the Services; and
(k) you agree not to enter this Agreement as a trustee of a trust.
9. Intellectual Property
9.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
9.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
9.3 Ownership of all Intellectual Property Rights in any Reports created in the preceding month will vest in you upon payment of that month’s Service Fee in accordance with the Payment schedule in the Proposal.
9.4 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Services, as contemplated by this Agreement. To the extent the Reports contain any of Our Materials, we grant you a non-exclusive, irrevocable, right and licence to use, Our Materials contained in the Reports, for the purpose of your use of the Reports as contemplated by this Agreement.
9.5 You grant us a non-exclusive, irrevocable, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence, to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.
9.6 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
9.7 This clause 9 will survive termination or expiry of this Agreement.
10. Confidential Information
10.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 10.1(c);
(b) to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure;
(c) to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided those persons keep the Confidential Information confidential in accordance with this clause 10; and
(d) to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement.
10.2 The obligations in clause 10.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised in writing to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
10.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.
10.4 This clause 10 will survive the termination of this Agreement.
11. Australian Consumer Law
11.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at law, nothing in this Agreement excludes those Consumer Law Rights.
11.2 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
11.3 This clause 11 will survive the termination or expiry of this Agreement.
12. Limitations on liability
12.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again;
(d) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Service Fee paid by you to us in respect of the supply of the relevant Services to which the Liability relates; and
(e) will not be liable for any loss, or failure to provide the Services, which is caused by an Unexpected Delay or which arises as a result of us relying on any false, misleading or incomplete Information.
12.2 This clause 12 will survive the termination or expiry of this Agreement.
13. Term and Termination
13.1 This Agreement will operate for the Term.
13.2 Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party.
13.3 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
13.4 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Services;
(b) without limiting and subject to your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(d) by us pursuant to clause 13.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(e) If requested by the Disclosing Party, the Receiving Party must destroy or return to the Disclosing Party all of its Confidential Information, except that the Receiving Party may keep a copy of such Confidential Information to the extent required by law or pursuant to its information technology back-up procedures, provided always that the Receiving Party retains such Confidential Information in accordance with clause 10.
13.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
13.6 This clause 13 will survive the termination or expiry of this Agreement.
14.1 Publicity: Despite clause 10, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our website or in our promotional material.
14.2 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines. We agree only to use information provided by you for the purposes of providing the Services, facilitating the operation of our business, fulfilling any legal or regulatory requirements and providing you with information about us and the services we offer. We will use our best endeavours to keep the information in our possession safe, secure and confidential.
14.3 Amendment: Subject to clause 3 and clause 2.4, this Agreement may only be amended by written instrument executed by the Parties.
14.4 Assignment: Subject to clause 14.5, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
14.5 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
14.6 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 14.6. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
14.7 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
14.8 Where the Force Majeure Event prevents a Party from performing a material obligation under this agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement. Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
14.9 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
14.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
14.11 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
In this Agreement, unless the context otherwise requires, capitalised terms, and any other defined terms, have the meanings given to them in the Proposal, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means the Proposal, these terms and conditions and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is signed by the last of the Parties.
Confidential Information means information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) relates to the Disclosing Party’s business, assets or affairs; or
(c) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:
(a) any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into this Agreement as the probable results of the relevant breach, act or omission; and/or
(b) without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.
However, the Parties agree that your obligation to pay us the Service Fee under this Agreement will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 11.1.
Reports means any reports, plans or other deliverables forming part of the Services, as particularised in the Proposal.
Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.
Dispute has the meaning given in clause 14.6.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Information means any information, documents, materials, facts, instructions or confidential information provided to us by you or your Personnel or anyone else at your request.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.
NDIS means National Disability Insurance Scheme.
NDIS Commission means National Disability Insurance Scheme Quality and Safeguards Commission.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Services, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials, Your Materials and the Reports.
Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Service Fee means the Service Fee set out in the Proposal, as adjusted in accordance with this Agreement.
Proposal means the proposal attached to these terms and conditions.
Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.
Services means the services set out in the Proposal, as adjusted in accordance with this Agreement.
Unexpected Delay means any delay in providing the Services that is caused or contributed to by an act or event (including the non-performance of your obligations) that is beyond our control or was not reasonably foreseeable by us at the date of this Agreement.
Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property