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Client Terms and Conditions

Terms and Conditions of Undercover Customer Pty Ltd trading as Mystery Shopper (“the Supplier”)

1.     Application

These Term and Conditions (“T&Cs”), and no terms and conditions of the Client, will apply to any supply of Services by the Supplier to the Client.

2.     Definitions

In these T&Cs:

ABN” means Australian Business Number

“Acceptance” means the occurrence of any one of the following:

a)      The signed and or written Acceptance by the Supplier of the Order; or

b)      The Acceptance by the Supplier of a deposit for the Services in which event the Acceptance will be deemed Communicated without any further steps being required; or

c)      The delivery of Services in which event the Acceptance will be deemed Communicated without any further steps being required.

“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;

“Communicates” means all tenses of the verb and any act of the communication and includes written communication, electronic communications and facsimile communication but does not include oral communications unless confirmed in writing electronically or by facsimile.

“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity of the Supplier including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;

“Contract” means a contract formed as a result of the acceptance of an Order by the Supplier;

“Control” has the meaning set out in the Corporations Act 2001 (Cth);

“Client” means the customer set out in any quotation, offer or other document provided by the Supplier (or, in the absence of such information, the customer who placed the Order);

“Current Price List” means the price list published by the Supplier from time to time as the current prices of the Services to its Clients, exclusive of GST;

“Delivery Address” means any delivery address in a Contract;

“Delivery Date” means any delivery date in a Contract;

“Insolvency Event” means any of the following, or any analogous, events:

(a)  the Client disposes of the whole or any part of the Client’s assets, operations or business other than in the ordinary course of business;

(b)  the Client ceases, or threatens to cease, carrying on business;

(c)  the Client is unable to pay the Client’s debts as the debts fall due;

(d)  any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Client’s assets, operations or business;

(e)  any step is taken for the Client to enter into any arrangement or compromise with, or assignment for the benefit of, the Clients creditors or any class of the Client’s creditors; or

(f)   any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Clients assets, operations or business;

GST” means Goods and Services Tax.

“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;

“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);

“Order” means any written or verbal order by the Client to the Supplier for Goods and/or Services;

“Parties” means the Supplier and the Client

“Person” means any individual, company or entity not being a Party and not being an employee of a party.

“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;

“Price” means the price of the Services (including but not limited to any other charges); and

“Services” means the services in a Contract.

3.   Order for Services

3.1  Any Order by the Client to the Supplier and/or any acceptance of any Services by the Client will constitute agreement to these T&Cs by the Client.

3.2  If the Supplier accepts an Order, the parties will have created a binding Contract and the Supplier will supply the Services to the Client, and the Client will pay the Price to the Supplier in accordance with the terms of the Contract (which will include these T&Cs).

3.3  The Client is not entitled to cancel any Contract and must pay to the Supplier any costs associated with the Client purporting to cancel a Contract.

3.4  The Client must provide the Supplier with written details of any required specifications or properties of Services at the time the Client provides an Order to the Supplier.

3.5  The Client must ensure the specifications or properties of Services stated in any Order by the Client will be fit for the intended purpose of the Services.

3.6  The Supplier will be entitled to rely on the accuracy of any plans, specifications or other information provided by the Client.

3.7  If there are any errors in any plans, specifications or other information provided by the Client to the Supplier, the Supplier will be entitled to vary the Price.

3.8  The Supplier may cancel any Contract at any time prior to providing the Ordered Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.

4.   The Contract

4.1   The Terms of the Contract between the Supplier and the Client for the sale and supply of services Ordered are contained collectively in all of the following:

a)      The duly completed Order;

b)      These Terms and Conditions;

c)      The Acceptance; and

d)      The relevant parts of the Supplier’s then Current Price List.

4.2   The Contract date is the date the Supplier Communicates acceptance to the Client. An Order once placed where acceptance has been Communicated may only be cancelled by the Client if the Supplier agrees in writing to it cancellation. Cancellation may be conditional on the Client paying costs and expenses incurred by the Supplier up to the date of cancellation. The Client must provide its ABN number on the completed Order Form unless already provided.

5.   Price

5.1  The Price is exclusive of GST unless otherwise stated by the Supplier in writing.

5.2  The Client must not withhold, make deductions from, or set-off, payment of any money owed to the Supplier for any reason.

5.3  The Supplier may charge, in addition to the Price, any other fees and charges that the Supplier notifies to the Client from time to time.

6.   Credit Terms

6.1  The Client must make full payment of the Price and any other amounts payable to the Supplier before the Supplier supplies Services to the Client unless the Supplier has granted credit terms to the Client in which case the Client must make full payment of the Price and any other amounts payable to the Supplier within 30 days of the date of the invoice.

6.2  If the Supplier grants credit terms to the Client, the Client agrees to grant the Supplier a charge over the whole of the Client’s present and future undertaking, property and assets (including, without limitation, all of the Client’s legal and beneficial interests in freehold and leasehold land) as security for any amount owed by the Client to the Supplier and the Client acknowledges the Supplier may lodge caveats or take any other action to enforce the Supplier’s security over the charged property.

6.3  The Client must reimburse the Supplier for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses associated with any action by the Supplier to recover money from the Client.

6.4   The Supplier may charge monthly compound interest on any overdue amounts owed by the Client at a rate of 10% per annum above the Reserve Bank of Australia’s cash rate target as liquidated damages.

7.     Security and PPSA

7.1   For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term existing or defined in the PPSA is used in this agreement, it is deemed to be that section or term as used or defined in the PPSA as amended, renumbered or replaced from time to time.

7.2   The Client acknowledges and agrees that this Agreement constitutes a security agreement in relation to the Supplier’s security interest in any personal property in accordance with the PPSA. The Client agrees to grant a “Purchase Money Security Interest” to the Supplier.

7.3   For the avoidance of any doubt, the Client acknowledges and agrees that it grants to the Supplier a security interest in any personal property.

7.4   To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this agreement:

a)      Sections 95 (notice of removal of accession), to the extent that it requires The Supplier to give notice to The Client, 96 (retain of accession) and 125 (obligation to dispose of collateral);

b)      Section 130 (notice of disposal), to the extent that it requires The Supplier to give a notice to the Client;

c)      Section 132(3)(d) (contents of statement of account after disposal);

d)      Section 132(4) (statement of account if no disposal);

e)      Section 135 (notice of retention);

f)       Section 142 (redemption of collateral);

g)      Section 143 (reinstatement of security agreement).  

7.5   For the purposes of section 14(6) of the PPSA, the Client (and the Supplier) agree that any payments received from the Client by the Supplier pursuant to or in any way connected with this Agreement, will be applied in such order as the Supplier deems fit in its absolute discretion.

7.6   The Client consents to:

a)      And agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement;

b)      The registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a financing statement or financing charge statement on the Personal Property Securities Register.

7.7   The Client must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawing, discharge or release of such instrument.

8.     Force Majeure

The Supplier will not be liable to the Client for any failure to perform, or delay in performing, the Supplier’s obligations under these T&Cs if the failure or delay is due to any cause beyond the Supplier’s reasonable control and if any such failure or delay continues for a period of 14 days the Supplier may terminate any affected Contract.

9.     Confidential Information and Intellectual Property

9.1   The Supplier will not use, or disclose to any third party, any Confidential Information disclosed by the Client.

9.2   The Supplier acknowledges that all ‘personal information’ collected by the Supplier shall be treated in accordance with the Privacy Act 1988, as amended by the Privacy Amendment (Private Sector) Act No 155 of 2000.

9.3   All copyright in all reports or any other material that are provided to the Client with the Services Order remains the sole and exclusive property of the Supplier and such items are not to be reproduced without prior written permission of the Supplier.

9.4   No supply of Services to the Client will grant to the Client any Intellectual Property Rights in respect of the Services.

10.   Warranties

10.1  The Supplier does not warrant the Services are fit for any purpose whether or not made known by the Client or any third party to the Supplier or any member of the Supplier’s Personnel.

10.2  The Supplier excludes all express and implied conditions and warranties in relation to the Services and this Agreement expect those conditions or warranties that cannot be excluded by law.

10.3  Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Trade Practices Act 1974 (Cth) or Competition and Consumer Act 2010 (Cth) or any Fair Trading Act or any other Consumer Law of any State or Territory of Australia except to the extent permitted by such Acts.

11.   Liability

11.1  The Supplier’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Services will be limited to the amount of the Price paid by the Client to the Supplier.

11.2  The Supplier will not be liable to the Client or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.

11.3  The Supplier will not be liable to the Client or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to the Supplier’s Personnel who are required by the Client to be on the Client’s premises or any such other premises associated with the Client for the purposes of carrying out the Services.

11.4  For the avoidance of any doubt, any Liability or Claim of any kind whatsoever arising directly or indirectly will remain between the Client and the Personnel.  

12.   Indemnity

The Client indemnifies the Supplier and each member of the Supplier’s Personnel on a full and continuing indemnity basis from and against any Liability or Claim arising directly or indirectly in relation to:

(a)  the Client’s breach of these T&Cs or any Contract;

(b)  the negligence or wilful misconduct of the Client or any member of the Client’s Personnel;

(c)  damage to the property of the Client or any third party during any delivery of Goods or Services;

(d)  the Services not being fit for any particular purpose;

(e)  any tests conducted by a third party in relation to Services;

(f)   any audits or reviews conducted by the Supplier’s Personnel in relation to the Client’s business;

(g)  the Client or any member of the Client’s Personnel directly or indirectly causing any delay in the supply of any Services;

(h)  the Client or any member of the Client’s Personnel refusing to accept the services; or

(i)   the Client or any member of the Client’s Personnel purporting to cancel a Contract.

13.   Termination

The Supplier may immediately terminate, or suspend the performance of, any Contract and the Client must immediately pay any money owed to the Supplier if:

(a)  the Client breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from the Supplier requiring the Client to do so;

(b)  the Client breaches a term of these T&Cs or any Contract which is not capable of remedy;

(c)  there is any direct or indirect change in the Control of the Client; or

(d)  an Insolvency Event arises in relation to the Client.

 

14.   Dispute

14.1  In the event of any dispute arising between the Supplier and the Client as to any Party’s rights or obligations under the Contract or as to whether either Party has breached or failed to meet its obligations then both Parties agree to meet together and in good faith seek to resolve the dispute.

14.2  If notwithstanding this clause the dispute remains unresolved after fourteen days, either Party may take such actions as it thinks fit to enforce its rights against the other.

15.   Whole Agreement

14.1 The content of the documents in Clause 2 constitutes the whole of the terms of this Contract. Except to the extent the law provides as mandatory requirement a term to be implied, no term is to be implied into this Contract.

14.2 All prior representations, undertakings and statements made by either Party to the other and not expressly included in this Contract are hereby expressly excluded from this Contract and each Party expressly hereby states that it has not relied in any way on such prior representations, undertakings or statements in deciding to enter into this Contract.

16.   Variations

16.1  The Supplier does not agree to any variations to this Contract. This Contract does not oblige the Supplier to accept any variation in the Services to be supplied.

16.2  The Supplier may at any time make variations to the Contract, however the variation will not be binding unless the Supplier gives the Client thirty days’ notice of the variation in writing.

17.   Notice

17.1  Any notice required to be served must be in writing and may be served personally by facsimile or by email addressed to the recipient. A notice served by pre-paid post shall be deemed served two days after posting (whether received or not) to the recipient’s registered office or place of business.

17.2  A notice served by email or by facsimile must be addressed to the Party concerned at its facsimile or email address and shall be deemed received the day after sending. An email or facsimile report shall be conclusive evidence of it having been sent and served.

18.   Miscellaneous

18.1  These T&Cs or any Contract may only be amended with the Supplier’s express written agreement.

18.2  The failure by either the Supplier to exercise or enforce any rights conferred hereunder shall not, except where there is an express term to the contrary, be construed or deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or other times thereafter.  

18.3  Any waiver by the Supplier must be express and in writing.

18.4  The Supplier’s rights under these T&Cs or any Contract do not exclude any other rights of the Supplier.

18.5  If any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply.

18.6  The Client must immediately provide written notice to the Supplier if there is any direct or indirect change in the Control of the Client.

18.7  The Supplier may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party.

18.8  The Client may only assign any rights or benefits under any Contract or these T&Cs or any Contract with the Supplier’s prior written consent.

18.9  These T&Cs and any Contract will be governed by the law of the state in which Supplier’s address is located.

18.10    In these T&Cs:

(a)  the headings will not affect interpretation of these T&Cs;

(b)  Each clause and subclause is separate and independent. If any clause or subclause is found to be invalid or ineffective, the other clauses or subclauses will not be adversely affected;

(c)  the singular includes the plural and vice versa, and a gender includes other genders;

(d)  any other grammatical form of a word or expression defined in these T&Cs has a corresponding meaning;

(e)  a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(f)   a reference to a party to a document includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;

(g)  a reference to a person includes a natural person, body corporate, partnership, trust, association or any governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, corporation or instrumentality or any other entity;

(h)  a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under the statute, ordinance, code or other law and any consolidations, amendments, re-enactments or replacements;

(i)   a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;

(j)   the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;

(k)  any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;

(l)   any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;

(m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs or any part of these T&Cs; and

if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next  Terms and Conditions of Undercover Customer Pty Ltd trading as Mystery Shopper (“the Supplier”)

1.     Application

These Term and Conditions (“T&Cs”), and no terms and conditions of the Client, will apply to any supply of Services by the Supplier to the Client.

2.     Definitions

In these T&Cs:

ABN” means Australian Business Number

“Acceptance” means the occurrence of any one of the following:

a)      The signed and or written Acceptance by the Supplier of the Order; or

b)      The Acceptance by the Supplier of a deposit for the Services in which event the Acceptance will be deemed Communicated without any further steps being required; or

c)      The delivery of Services in which event the Acceptance will be deemed Communicated without any further steps being required.

“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;

“Communicates” means all tenses of the verb and any act of the communication and includes written communication, electronic communications and facsimile communication but does not include oral communications unless confirmed in writing electronically or by facsimile.

“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity of the Supplier including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;

“Contract” means a contract formed as a result of the acceptance of an Order by the Supplier;

“Control” has the meaning set out in the Corporations Act 2001 (Cth);

“Client” means the customer set out in any quotation, offer or other document provided by the Supplier (or, in the absence of such information, the customer who placed the Order);

“Current Price List” means the price list published by the Supplier from time to time as the current prices of the Services to its Clients, exclusive of GST;

“Delivery Address” means any delivery address in a Contract;

“Delivery Date” means any delivery date in a Contract;

“Insolvency Event” means any of the following, or any analogous, events:

(a)  the Client disposes of the whole or any part of the Client’s assets, operations or business other than in the ordinary course of business;

(b)  the Client ceases, or threatens to cease, carrying on business;

(c)  the Client is unable to pay the Client’s debts as the debts fall due;

(d)  any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Client’s assets, operations or business;

(e)  any step is taken for the Client to enter into any arrangement or compromise with, or assignment for the benefit of, the Clients creditors or any class of the Client’s creditors; or

(f)   any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Clients assets, operations or business;

GST” means Goods and Services Tax.

“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;

“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);

“Order” means any written or verbal order by the Client to the Supplier for Goods and/or Services;

“Parties” means the Supplier and the Client

“Person” means any individual, company or entity not being a Party and not being an employee of a party.

“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;

“Price” means the price of the Services (including but not limited to any other charges); and

“Services” means the services in a Contract.

3.   Order for Services

3.1  Any Order by the Client to the Supplier and/or any acceptance of any Services by the Client will constitute agreement to these T&Cs by the Client.

3.2  If the Supplier accepts an Order, the parties will have created a binding Contract and the Supplier will supply the Services to the Client, and the Client will pay the Price to the Supplier in accordance with the terms of the Contract (which will include these T&Cs).

3.3  The Client is not entitled to cancel any Contract and must pay to the Supplier any costs associated with the Client purporting to cancel a Contract.

3.4  The Client must provide the Supplier with written details of any required specifications or properties of Services at the time the Client provides an Order to the Supplier.

3.5  The Client must ensure the specifications or properties of Services stated in any Order by the Client will be fit for the intended purpose of the Services.

3.6  The Supplier will be entitled to rely on the accuracy of any plans, specifications or other information provided by the Client.

3.7  If there are any errors in any plans, specifications or other information provided by the Client to the Supplier, the Supplier will be entitled to vary the Price.

3.8  The Supplier may cancel any Contract at any time prior to providing the Ordered Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.

4.   The Contract

4.1   The Terms of the Contract between the Supplier and the Client for the sale and supply of services Ordered are contained collectively in all of the following:

a)      The duly completed Order;

b)      These Terms and Conditions;

c)      The Acceptance; and

d)      The relevant parts of the Supplier’s then Current Price List.

4.2   The Contract date is the date the Supplier Communicates acceptance to the Client. An Order once placed where acceptance has been Communicated may only be cancelled by the Client if the Supplier agrees in writing to it cancellation. Cancellation may be conditional on the Client paying costs and expenses incurred by the Supplier up to the date of cancellation. The Client must provide its ABN number on the completed Order Form unless already provided.

5.   Price

5.1  The Price is exclusive of GST unless otherwise stated by the Supplier in writing.

5.2  The Client must not withhold, make deductions from, or set-off, payment of any money owed to the Supplier for any reason.

5.3  The Supplier may charge, in addition to the Price, any other fees and charges that the Supplier notifies to the Client from time to time.

6.   Credit Terms

6.1  The Client must make full payment of the Price and any other amounts payable to the Supplier before the Supplier supplies Services to the Client unless the Supplier has granted credit terms to the Client in which case the Client must make full payment of the Price and any other amounts payable to the Supplier within 30 days of the date of the invoice.

6.2  If the Supplier grants credit terms to the Client, the Client agrees to grant the Supplier a charge over the whole of the Client’s present and future undertaking, property and assets (including, without limitation, all of the Client’s legal and beneficial interests in freehold and leasehold land) as security for any amount owed by the Client to the Supplier and the Client acknowledges the Supplier may lodge caveats or take any other action to enforce the Supplier’s security over the charged property.

6.3  The Client must reimburse the Supplier for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses associated with any action by the Supplier to recover money from the Client.

6.4   The Supplier may charge monthly compound interest on any overdue amounts owed by the Client at a rate of 10% per annum above the Reserve Bank of Australia’s cash rate target as liquidated damages.

7.     Security and PPSA

7.1   For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term existing or defined in the PPSA is used in this agreement, it is deemed to be that section or term as used or defined in the PPSA as amended, renumbered or replaced from time to time.

7.2   The Client acknowledges and agrees that this Agreement constitutes a security agreement in relation to the Supplier’s security interest in any personal property in accordance with the PPSA. The Client agrees to grant a “Purchase Money Security Interest” to the Supplier.

7.3   For the avoidance of any doubt, the Client acknowledges and agrees that it grants to the Supplier a security interest in any personal property.

7.4   To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this agreement:

a)      Sections 95 (notice of removal of accession), to the extent that it requires The Supplier to give notice to The Client, 96 (retain of accession) and 125 (obligation to dispose of collateral);

b)      Section 130 (notice of disposal), to the extent that it requires The Supplier to give a notice to the Client;

c)      Section 132(3)(d) (contents of statement of account after disposal);

d)      Section 132(4) (statement of account if no disposal);

e)      Section 135 (notice of retention);

f)       Section 142 (redemption of collateral);

g)      Section 143 (reinstatement of security agreement).  

7.5   For the purposes of section 14(6) of the PPSA, the Client (and the Supplier) agree that any payments received from the Client by the Supplier pursuant to or in any way connected with this Agreement, will be applied in such order as the Supplier deems fit in its absolute discretion.

7.6   The Client consents to:

a)      And agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement;

b)      The registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a financing statement or financing charge statement on the Personal Property Securities Register.

7.7   The Client must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawing, discharge or release of such instrument.

8.     Force Majeure

The Supplier will not be liable to the Client for any failure to perform, or delay in performing, the Supplier’s obligations under these T&Cs if the failure or delay is due to any cause beyond the Supplier’s reasonable control and if any such failure or delay continues for a period of 14 days the Supplier may terminate any affected Contract.

9.     Confidential Information and Intellectual Property

9.1   The Supplier will not use, or disclose to any third party, any Confidential Information disclosed by the Client.

9.2   The Supplier acknowledges that all ‘personal information’ collected by the Supplier shall be treated in accordance with the Privacy Act 1988, as amended by the Privacy Amendment (Private Sector) Act No 155 of 2000.

9.3   All copyright in all reports or any other material that are provided to the Client with the Services Order remains the sole and exclusive property of the Supplier and such items are not to be reproduced without prior written permission of the Supplier.

9.4   No supply of Services to the Client will grant to the Client any Intellectual Property Rights in respect of the Services.

10.   Warranties

10.1  The Supplier does not warrant the Services are fit for any purpose whether or not made known by the Client or any third party to the Supplier or any member of the Supplier’s Personnel.

10.2  The Supplier excludes all express and implied conditions and warranties in relation to the Services and this Agreement expect those conditions or warranties that cannot be excluded by law.

10.3  Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Trade Practices Act 1974 (Cth) or Competition and Consumer Act 2010 (Cth) or any Fair Trading Act or any other Consumer Law of any State or Territory of Australia except to the extent permitted by such Acts.

11.   Liability

11.1  The Supplier’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Services will be limited to the amount of the Price paid by the Client to the Supplier.

11.2  The Supplier will not be liable to the Client or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.

11.3  The Supplier will not be liable to the Client or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to the Supplier’s Personnel who are required by the Client to be on the Client’s premises or any such other premises associated with the Client for the purposes of carrying out the Services.

11.4  For the avoidance of any doubt, any Liability or Claim of any kind whatsoever arising directly or indirectly will remain between the Client and the Personnel.  

12.   Indemnity

The Client indemnifies the Supplier and each member of the Supplier’s Personnel on a full and continuing indemnity basis from and against any Liability or Claim arising directly or indirectly in relation to:

(a)  the Client’s breach of these T&Cs or any Contract;

(b)  the negligence or wilful misconduct of the Client or any member of the Client’s Personnel;

(c)  damage to the property of the Client or any third party during any delivery of Goods or Services;

(d)  the Services not being fit for any particular purpose;

(e)  any tests conducted by a third party in relation to Services;

(f)   any audits or reviews conducted by the Supplier’s Personnel in relation to the Client’s business;

(g)  the Client or any member of the Client’s Personnel directly or indirectly causing any delay in the supply of any Services;

(h)  the Client or any member of the Client’s Personnel refusing to accept the services; or

(i)   the Client or any member of the Client’s Personnel purporting to cancel a Contract.

13.   Termination

The Supplier may immediately terminate, or suspend the performance of, any Contract and the Client must immediately pay any money owed to the Supplier if:

(a)  the Client breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from the Supplier requiring the Client to do so;

(b)  the Client breaches a term of these T&Cs or any Contract which is not capable of remedy;

(c)  there is any direct or indirect change in the Control of the Client; or

(d)  an Insolvency Event arises in relation to the Client.

 

14.   Dispute

14.1  In the event of any dispute arising between the Supplier and the Client as to any Party’s rights or obligations under the Contract or as to whether either Party has breached or failed to meet its obligations then both Parties agree to meet together and in good faith seek to resolve the dispute.

14.2  If notwithstanding this clause the dispute remains unresolved after fourteen days, either Party may take such actions as it thinks fit to enforce its rights against the other.

15.   Whole Agreement

14.1 The content of the documents in Clause 2 constitutes the whole of the terms of this Contract. Except to the extent the law provides as mandatory requirement a term to be implied, no term is to be implied into this Contract.

14.2 All prior representations, undertakings and statements made by either Party to the other and not expressly included in this Contract are hereby expressly excluded from this Contract and each Party expressly hereby states that it has not relied in any way on such prior representations, undertakings or statements in deciding to enter into this Contract.

16.   Variations

16.1  The Supplier does not agree to any variations to this Contract. This Contract does not oblige the Supplier to accept any variation in the Services to be supplied.

16.2  The Supplier may at any time make variations to the Contract, however the variation will not be binding unless the Supplier gives the Client thirty days’ notice of the variation in writing.

17.   Notice

17.1  Any notice required to be served must be in writing and may be served personally by facsimile or by email addressed to the recipient. A notice served by pre-paid post shall be deemed served two days after posting (whether received or not) to the recipient’s registered office or place of business.

17.2  A notice served by email or by facsimile must be addressed to the Party concerned at its facsimile or email address and shall be deemed received the day after sending. An email or facsimile report shall be conclusive evidence of it having been sent and served.

18.   Miscellaneous

18.1  These T&Cs or any Contract may only be amended with the Supplier’s express written agreement.

18.2  The failure by either the Supplier to exercise or enforce any rights conferred hereunder shall not, except where there is an express term to the contrary, be construed or deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or other times thereafter.  

18.3  Any waiver by the Supplier must be express and in writing.

18.4  The Supplier’s rights under these T&Cs or any Contract do not exclude any other rights of the Supplier.

18.5  If any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply.

18.6  The Client must immediately provide written notice to the Supplier if there is any direct or indirect change in the Control of the Client.

18.7  The Supplier may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party.

18.8  The Client may only assign any rights or benefits under any Contract or these T&Cs or any Contract with the Supplier’s prior written consent.

18.9  These T&Cs and any Contract will be governed by the law of the state in which Supplier’s address is located.

18.10    In these T&Cs:

(a)  the headings will not affect interpretation of these T&Cs;

(b)  Each clause and subclause is separate and independent. If any clause or subclause is found to be invalid or ineffective, the other clauses or subclauses will not be adversely affected;

(c)  the singular includes the plural and vice versa, and a gender includes other genders;

(d)  any other grammatical form of a word or expression defined in these T&Cs has a corresponding meaning;

(e)  a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(f)   a reference to a party to a document includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;

(g)  a reference to a person includes a natural person, body corporate, partnership, trust, association or any governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, corporation or instrumentality or any other entity;

(h)  a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under the statute, ordinance, code or other law and any consolidations, amendments, re-enactments or replacements;

(i)   a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;

(j)   the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;

(k)  any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;

(l)   any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;

(m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs or any part of these T&Cs; and

if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next