RAPID SESSIONS terms and conditions
Please read through our terms and conditions thoroughly before proceeding with your booking. It is a requirement that you understand and agree to all terms and conditions before paying for your booking.
hello@mindfulcreatives.com.au
0422 591 085
4a, 59 Mawson Road Meadows SA 5021
TERMS AND CONDITIONS
These terms and conditions apply to the purchase of goods and services by you (Client) from Mindful Creatives Pty Ltd ACN 676 462 785 (‘we’, ‘us’, ‘our’). These terms and conditions set out the agreement (Agreement) between Mindful Creatives and the Client (each a Party and together the Parties).
BACKGROUND
The Parties are entering into this Agreement for the purpose of the Client procuring the supply of Services from the Supplier either on a one-off basis or from time to time (depending on the Project Schedule).
The Parties agree to contribute to and undertake the Projects in accordance with the terms and conditions of this Agreement and, where completed, any Project Schedule entered into by the Parties.
DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires, the following definitions and interpretations apply:
Agreement means the provisions of this Agreement, including the Background, Project Schedule and Annexures (if any).
Background Material means Material developed prior to or independently of a Project which a Party has agreed to contribute to the Project, including Background Material identified in a Project Schedule, or otherwise contributed by a Party after the commencement of the Project, but which was not created for the purposes of the Project.
Business Day means a day other than a Saturday, Sunday or public holiday in the state of South Australia.
Commercialisation means use for commercial purposes or results, and includes the use, sale, marketing, distribution, production, licensing, practical application or other commercial application of Project Material (alone, or incorporated into other material or items) including the provision or exploitation of a product, process, or service reliant on that Intellectual Property or to licence a third party to do any of these things.
Completion Date means the date that a Project is completed or the date specified in a Project Schedule (if any).
Confidential Information means and includes any information that by its nature is confidential, is designated by a Party as confidential, or the recipient knows or ought to know is confidential but does not include information which:
is or becomes public knowledge other than by breach of this Agreement;
was known by the recipient as at the date of this Agreement; or
has been independently developed or acquired by the recipient without reference to a disclosing Party’s Confidential Information
where the burden of establishing any of the exceptions referred to in (a) to (c) shall be upon the recipient.
Default Project Schedule means the document in the form of the Project Schedule at Annexure A relating to a Project.
Fee means the fee or fees (if any) specified in the Project Schedule.
Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party and could not have been prevented or avoided by that party taking all reasonable steps:
act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
war (declared or undeclared), invasion, act of a foreign enemy, act of terrorism, hostilities between nations, civil insurrection or militarily usurped power;
act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority;
industrial action not specific to the Service Provider; or
suspension of the provision or receipt of the Services (or part thereof) required by applicable law or as a result of any order, proclamation, direction or similar act of any government agency response to, or related to an epidemic or a pandemic (declared as such by the World Health Organisation or similar authority).
Goods means any physical goods to be produced or procured by the Supplier for the Client as specified in a Project Schedule.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 as amended or replaced from time to time and also includes any associated legislation and delegated legislation.
Insolvency Event means having an administrator appointed, being in receivership, in liquidation, in provisional liquidation, wound up, subject to any arrangement, assignment or composition, protected from creditors under any law, dissolved (in each case other than to carry out a restructure or arrangement while solvent) or being otherwise unable to pay debts when they fall due or having something with the same or a similar effect happen under the laws of any relevant jurisdiction.
Intellectual Property Rights or IP or IPR means all statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions (including registered and unregistered patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered or unregistered designs, the right to have Confidential Information (including trade secrets, know-how, show-how and circuit layouts) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Material means information, documents, equipment, software, goods, computer files, designs, transferable know-how, results, reports and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material.
Moral Rights means the rights conferred on authors by Part IX of the Copyright Act 1978 (Cth), Copyright Act of 1976 (USA) and Copyright, R.S.C, 1985 as amended.
Ongoing Projects means those Projects specified in Part A of the Project Schedule (if any) that commenced prior to the Parties entering into this Agreement.
Project or Projects means the projects collaboratively developed and engaged in by the Parties including the Ongoing Projects (if any).
Project Material means all Material arising out of, developed or otherwise brought into existence for the purpose of performing or pursuant to, the Project, including Material copied or derived from that Material.
Project Schedule means a document substantially in the form of the Default Project Schedule, but customised for a particular Project.
Project Start Date means the date the last Party signs this Agreement or an alternative date as agreed by the Parties in writing.
Related Entity has the corresponding meaning set out in the Corporations Act 2001 (Cth).
Retainer means the provision of Services for a set fee payable each month as outlined in a Project Schedule.
Services means the services specified in the Project Schedule to be provided by the Supplier.
A reference to a gender includes a reference to each other gender; singular includes plural and vice versa; reference to a person includes a body politic or corporate, an individual and a partnership (including their successors, substitute and assigns) and vice versa; headings do not affect construction; and another grammatical form of a defined word has a corresponding meaning.
Reference to any legislation or any provision of any legislation includes any amendment, modification, consolidation or re-enactment of the legislation or any legislative provision substituted for and all legislation and statutory instruments of and regulations issued under the legislation.
An agreement, representation, warranty or indemnity given or undertaken by two or more persons binds them and is given jointly and severally.
A reference to an amount of money is a reference to the amount in a lawful currency of the Commonwealth of Australia.
If any day appointed or specified by this Agreement for the payment of money falls on a day which is not a Business Day the day appointed or specified is deemed to be the next Business Day.
Time is of the essence as regards any date, period or obligation under this Agreement.
The term of this Agreement shall commence on the date on which the last Party executes this Agreement, and shall continue until terminated in accordance with clause 14.
An email from the Client indicating agreement to a quote or fee estimate or payment of a deposit constitutes agreement to these Terms, in which case that email together with the quote or fee estimate will be deemed a Project Schedule.
Supply
Conducting the Project:
Nothing in this agreement obliges the Supplier to provide, or the Client to acquire from the Supplier, any Goods or Services unless and until a Project Schedule is agreed to.
The Parties agree to undertake and work diligently towards the successful completion of each Project in accordance with the relevant Project Schedule.
Each Project, other than an Ongoing Project, will commence on the earlier of the date specified in a relevant Project Schedule (if any) or the date on which the Parties commence substantive work on a Project.
Ongoing Projects (if any) will be deemed to be subject to the terms of this Agreement.
Any variation to the Project, including to a Party’s Contributions, must be agreed to by the Parties in writing.
Storage, Handling and Transport
The Supplier shall use reasonable endeavours to digitally store all artwork and materials used for the Services for 7 days from completion of the Services for a Project and may then permanently destroy or delete such files. For the avoidance of doubt, the Supplier shall not have any liability in the event the digital assets stored by the Supplier are lost or destroyed.
The Supplier may charge a reasonable cost to store, handle and transport Goods properly and efficiently, in accordance with good industry practice.
The Supplier is not required to provide proof of delivery of Goods unless requested in writing by the Client prior to dispatch.
Retouching
No retouching of images. Client understands that unedited image will be submitted only.
Title and Risk
Title to Goods will pass from the Supplier to the Client upon payment for them.
Risk to the Goods will pass from the Supplier to the Client upon loading for dispatch.
Purchase Money Security Interest
If and so long as any of the Purchase Price of any Good and/or Service remains unpaid to the Supplier, the Supplier has a purchase money security interest (PMSI) in all Goods and/or Services provided under section 14(1)(a) of the Personal Properties Securities Act 2009 (PPSA); and
at any time the Supplier may register in relation to such PMSI one or more financing statements/financing charge statements on the register maintained under the PPSA;
to the extent that the Supplier reasonably requests, within 2 working days the Client must do all things necessary to assist such registration/s and/or to ensure the PMSI priority over any other security interest (present or future) over the same Goods and/or Services or their proceeds granted by the Client to a third party; and
the parties agree to contract out of the following provisions of the PPSA 118, 121(4), 123, 125, 128, 129, 130, 132, 135, 142 and 143, at the time of this contract and their equivalent in as amended and as permitted by law.
Acceptance and Rejection of Goods and Services
that the Service will be of undertaken with due care and skill;
that Goods shall be of merchantable quality;
the Goods and/or Services will comply with all applicable standards, laws and regulations; and
that the Services and/or Goods are fit for any specific purpose, but only if stated in writing by the Supplier,
otherwise to the greatest extent permitted by law all other warranties are excluded. Where a warranty cannot be excluded, the Supplier’s liability to the Client will be limited in accordance with this clause 3.6.
Subject to any applicable laws:
a claim that a Good and/or Service is defective for reasons that are the Supplier’s responsibility is not valid unless advised in writing (with reasonable details) to the Supplier within 5 Business Days after the defect was first known to the Client;
the Client shall arrange for either (whichever is more appropriate):
the defective Good to be returned to the Supplier within 5 Business Days of notifying the Supplier of the defect; or
arrange within 5 business days for a representative of the Supplier to attend the Customer’s premises to inspect the Good and/or Service provided;
the Supplier shall then either accept the defect or elect to obtain an independent report from a suitability qualified person, within a reasonable time;
upon receiving the independent report the Supplier shall provide a copy to the Client;
if the defective Good and/or Service claim is found or admitted to be without merit, the Supplier may recover from the Client as a debt all reasonable costs the Supplier incurs investigating the claim; and
to the extent permitted by law any claim for any defective product not made within time is barred for all purposes.
If a Good and/or Service the Supplier delivers is found to be defective for reasons that are the Supplier’s responsibility then the Supplier’s liability is limited to, at the Supplier’s cost and choice:
prompt delivery of a replacement or equivalent Good and/or Service; or
prompt repair of the Good and/or Service; or
payment of the cost of the Client acquiring equivalent goods and/or services or having them repaired.
If the Supplier is to replace a Good that is or is likely to be defective for reasons that are the Supplier’s responsibility, the Supplier retains ownership of the original defective Good.
Subject to the Australian Consumer Law,[1] if it applies, in no case is the Supplier liable for any loss of revenue/ profits/ goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of a Good and/or Service, with the exception of gross negligence, maleficence or wilful misconduct.
FEES
The Supplier may charge the Client the Fees (if any) as set out in the Project Schedule.
The full-service fee must be paid at the time of booking to secure booking. Cancellations made with 48 hours or more notice will result in a full refund of funds paid. Cancellations made with 48 hours or less notice will result in a 50% refund of funds paid. This is to cover any damages and or loss to Mindful Creatives. Rescheduled appointments must be made within 30 days of the original appointment date. Repeat cancellations or non-payments can result in refusal of service by Mindful Creatives.
The Fees are for Goods and/or Services as set out in the Project Schedule. If additional Goods and/or Services are required the Client will be required to pay additional fees as agreed by the Parties. For example Mindful Creatives may deem that audio, footage or photography supplied by or on behalf of the Client is not reasonably suitable and additional Services are required. Reasonable administrative fees will be set by Mindful Creatives, in its absolute discretion, and charged where second or subsequent copies of artwork or materials are requested.
Fees are calculated on the assumption that Services are to be performed under circumstances normally pertaining to the carrying out of these types of services. If Mindful Creatives is required to perform or deliver the Services in circumstances other than those, or if there is a change in the scope, timing or order of the Services, then Mindful Creatives may require additional costs and charges in an amount that is reasonable in the circumstance.
Mindful Creatives will issue an invoice to the Client setting out the Fees and a summary of the Service performed during the period to which the invoice relates. Invoices must be paid by the date set out on the invoice.
All quotes or fee estimates are valid for 30 days.
Mindful Creatives may increase their Fees at any time on 30 days’ notice to the Client. If the Client does not agree to such price increase, the Client may terminate the agreement within 14 days of receiving notice of the price increase by providing written notice of their intention to do so. If notice of termination is given under this clause, the agreement and any relevant Project Schedule will terminate at the end of the 30 day notice period given by Mindful Creatives.
In the event of a bona fide dispute as to Fees, the Client must promptly notify Mindful Creatives of the dispute and must pay the undisputed portion of the Fees. The dispute resolution process in clause 16 shall apply.
In the case of late payment, Mindful Creatives reserve the right to charge interest on the outstanding amounts at a rate of no greater than 1% per month. Costs incurred in the collection of unpaid monies will be charged to and be payable by the Client in addition to any interest payable under this clause.
Mindful Creatives may in its absolute discretion, offer payment plans for some of their Goods and Services. Such agreement must be in writing between the Parties and shall include the payment terms and timeline for repayment. Once agreed the invoicing dates cannot be changed unless further agreed by the Parties in writing. Where a project is delayed or on hold at the Client’s request, the payment plan will remain the same.
Supplier’s OBLIGATIONS
The Supplier must use reasonable endeavours to provide any Services, and deliver any Goods to the Client required by a Project Schedule, in accordance with the Project Schedule in all material respects.
The Supplier must use reasonable endeavours to meet the Milestones specified in the Project Schedule but any such dates will be estimates only and time for performance by the Supplier will not be of the essence of this agreement.
CLIENT’s OBLIGATIONS
The Client must:
pay any Fee payable to the Supplier in accordance with clause 4.1;
provide reasonable assistance to the Supplier in all matters relating to the Project; and
provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Project Schedule or otherwise reasonably required by the Supplier in connection with the Project and ensure that they are accurate and complete in all material respects.
Key Personnel
In the event Key Personnel of either Party are specified in a Project Schedule, those Key Personnel are required to perform the relevant Party’s obligations for that Project.
If a Party’s Key Personnel becomes unavailable or incapacitated, the relevant Party may replace the Key Personnel with a suitably qualified replacement with the consent of the other Party, which shall not be unreasonably withheld or delayed.
Words or expressions used in this clause 9 which are defined in the GST Legislation have the same meaning in this clause.
The Parties acknowledge that all amounts payable (including cash contributions) under or in connection with this Agreement are expressed on a GST-exclusive basis.
If any supply made under this Agreement is a taxable supply, the recipient must pay to the supplier, in respect of that taxable supply, an additional amount equal to the GST payable by the supplier in respect of that taxable supply.
The recipient must pay the amount payable under clause 9.3 at the same time as payment must be made for the taxable supply, provided the supplier has given the recipient a tax invoice for that payment stating the amount of GST paid or payable by the supplier in respect of that taxable supply.
If, at any time, an adjustment event arises in respect of any supply made by a Party under this Agreement, a corresponding adjustment must be made between the Parties in respect of any amount paid pursuant to clause 9.3. Payments to give effect to the adjustment must be made between the Parties and the supplier must issue a valid adjustment note in relation to the adjustment event.
INTELLECTUAL PROPERTY RIGHTS AND MATERIAL
For the purposes of this Agreement:
Background Intellectual Property means Intellectual Property developed prior to or independently of, and without reference to, the provision of the Services;
Client Intellectual Property means Intellectual Property provided by the Company to the Contractor for use in the provision of the Services;
Intellectual Property Rights or IP or IPR means all statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions (including registered and unregistered patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered or unregistered designs, the right to have Confidential Information (including trade secrets, know-how, show-how and circuit layouts) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
All Intellectual Property created or developed in the course of performing the Services (Services IP) will be, from the time of creation, owned by and vested in the Client.
The following terms apply with respect to the ownership and licensing of IPR and the Commercialisation of Material and IPR:
Ownership of Background Intellectual Property and Client Intellectual Property is not transferred by virtue of this Agreement.
Licence of Intellectual Property
The Supplier grants to the Client a perpetual, non-exclusive, worldwide, sub-licensable, royalty-free, irrevocable licence to use their Background Material to the extent necessary to enjoy the use and benefit of the Goods and/or Services.
The Client grants to the Supplier a non-exclusive, non-sub-licensable, royalty free, irrevocable licence to use their Background Material for the sole purpose of producing and delivering the Goods and/or Services.
Subject to the terms of this Agreement, unless otherwise agreed in writing, the Supplier grants to the Client a perpetual, non-exclusive, worldwide, sub-licensable, royalty free, irrevocable licence to use the Intellectual Property IPR and Material for the Project and the ordinary use of the Goods and/or Services provided in accordance with this Agreement.
Ownership of Intellectual Property:
No Intellectual Property is transferred by virtue of this agreement.
Moral Rights
The Client must, where reasonably practicable, ensure that the Supplier’s Moral Rights are upheld, including ensuring that at no time any false attribution is made as to the author or provider of any copyright work included in the provision of Goods and/or Services by the Supplier.
Subject to clause 11, Mindful Creatives may use Services Materials and Services IP as part of its ‘show reel’ and for its own promotion use through social media, print and online.
CONFIDENTIAL INFORMATION & Cyber Security
Each Party acknowledges that the Confidential Information of a Party is valuable and will take all necessary steps to protect Confidential Information from unauthorised disclosure.
A Party that receives Confidential Information (Recipient) from another Party (Discloser) agrees that it will only use Confidential Information for the purposes of this Agreement and will:
keep the Confidential Information confidential and secret;
not disclose the Confidential Information to any person except in accordance with this Agreement, unless with the Discloser’s prior written consent;
use the Confidential Information only to the extent necessary for the purposes of this Agreement and not for any other purpose;
take proper and effective precautions to prevent persons from accessing any of the Confidential Information;
notify the Discloser immediately it becomes aware of any person using the Confidential Information other than for the purposes of and in accordance with this Agreement; and
only disclose Confidential Information to those of its employees, contractors or agents who have a need to know the Confidential Information for the purposes of this Agreement, and who have been informed of and have agreed to be bound by the obligations of that Party pursuant to this Agreement.
All documents and other materials containing the Discloser’s Confidential Information will be returned to the Discloser immediately upon written request.
The obligations imposed upon a Party by this clause shall not apply where:
that Party has received the prior written permission of the other Party with respect to the disclosure of that Confidential Information;
the Confidential Information has been disclosed in the process of protection of Project Material under a registered form of intellectual property protection available in Australia;
the Confidential Information is disclosed as required by law provided that the disclosing Party discloses the minimum Confidential Information required and immediately inform the other Party of such disclosure.
Both Parties shall comply with the following requirements pertaining to the security of Confidential Information, documents, materials and records related to the provision of the Goods and/or Services:
ensure all documents provided by the other Party are only viewed or copied for the purpose of Project, or as required by law;
secure all documentation provided by the other Party in a manner which precludes unauthorised viewing and/or copying of the documentation, including:
all their devices, including laptops, tablets and mobiles, which store or receive Materials and Confidential Information are password/pin protected and that the password is regularly changed;
all their devices have virus and like security protections installed from a reputable provider;
a secure locked cabinet, for all hard copy documentation storage;
the work environment, including all relevant employees, directors or sub-contractors home office/business premises is secure and protected;
where documents are required to be printed that this is not through a public printing service;
appropriate information security protections; and
ensure that all documents and information is to be transmitted in a secure manner.
A Party must immediately inform the other of any cyber-attack or actual or potential data breach it becomes aware of that may result in the other Party’s Confidential Information, data, intellectual property or documents being compromised, lost, stolen or published and co-operate in the recovery, management and/or notification of the incident.
The obligations of confidentiality imposed on a Party by this clause 11 will survive the termination of this Agreement.
A Party will not be responsible for any delay in performance or non-performance due to any cause beyond the reasonable control of that Party provided that upon such event, the affected Party will promptly notify the other Party in writing stating the cause of the delay and the effect upon that Party’s performance, and take all action within its power to comply with this Agreement as fully and promptly as possible.
WARRANTIES AND LIMITATION OF LIABILITY
To the greatest extent permitted by law, the Parties agree to exclude all statutory or other warranties or implied terms binding upon the Parties except for those expressly set out in this Agreement.
No Party will be liable to any other Party for consequential or indirect loss or damage including, but not limited to, loss of profits, arising from a breach of this Agreement.
Each Party (the Indemnifier) indemnifies each other Party, its officers, employees and agents (in this clause referred to as the Indemnified Parties) from and against any loss (including legal costs and expenses on a solicitor/own client basis) or liability reasonably incurred or suffered by any of the Indemnified Parties, arising from any reasonable claim, demand, action or proceeding, by any person against any of the Indemnified Parties where such loss or liability was caused by a wilful, unlawful or negligent act or omission by the Indemnifier, its officers, employees or agents in connection with this Agreement.
An Indemnifier’s liability to the Indemnified Parties under clause 13.3 will be reduced proportionally to the extent that any unlawful or negligent act or omission by the Indemnified Parties caused or contributed to such loss or liability.
Each Party warrants that it will maintain or cause to maintain at its own cost adequate insurance appropriate in connection with its activities under this Agreement. Each Party shall provide certificates of currency for all relevant insurances within 5 Business Days of receipt of a request by the other Party.
This Agreement or any Project may be terminated by the mutual agreement of the Parties in writing.
Either Party may terminate a Project immediately by notice in writing if:
the other Party (Party in default) commits a breach of a material obligation under that Project that is not remedied or rectified, within 10 Business Days of receipt of a notice from the Party specifying that breach and requesting its remediation or rectification;
the Party in default assigns, transfers or deals with its rights under this agreement, other than as permitted under this agreement, or attempts to do so; or
the Party in default becomes the subject of an Insolvency Event.
Either Party may terminate a Project without cause by giving the other party 30 days’ written notice.
If a Project is terminated pursuant to clause 14.3, the Party that terminated the Project must pay the other Party an amount equal to any costs or expenses incurred by that Party in relation to the Project thrown away due to the termination that could not be reasonably avoided prior to the Termination. The termination of a Project does not act to terminate this Agreement or any other Project unless expressly agreed between the parties or specified in a notice of termination.
Without limiting the generality of any other clause in this Agreement, a Party (terminating Party) may terminate this Agreement where:
any other Party (defaulting Party) is in breach of any term of this Agreement and such breach is not remedied within 28 days of the terminating Party notifying the defaulting Party of the breach;
the other Party is unable to pay its debts when such debts fall due or becomes subject to any form of administration; or
the other Party ceases or threatens to cease to carry on its business in the normal manner.
On termination of this Agreement for any reason:
all rights that a party has accrued before termination or expiry continue;
each party will, at its own cost, return or destroy (at the disclosing party’s option) all property in its possession or control, belonging to the other party, including all Confidential Information and copies in any form identifiable or designated as the disclosing party’s property (or, if the Agreement is terminated in part only, this clause applies only to property and Confidential Information disclosed exclusively in connection with the terminating part);
where the Agreement has been terminated for convenience by a party, the other party shall be entitled to recover from the terminating party any out of pocket expenses committed to prior to receiving notice of termination, which could not reasonably be minimised or avoided. For the avoidance of doubt, this does not extend to wages, any loss of profits or any loss of opportunity.
A Party to this Agreement claiming that a dispute has arisen from or in connection with this Agreement (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that party has attempted to resolve the Dispute in accordance with this Clause 16.
Compliance with this clause is a condition precedent to the right of any Party to commence litigation or arbitration arising from, or in connection with, the Dispute.
A Party to this Agreement claiming that the Dispute has arisen must give a written notice to the other Party or Parties to this contract in accordance with Clause 20 specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.
Following service of the Dispute Notice, each Party must send to a meeting within 10 Business Days of the dispute notice an agent with authority to resolve the Dispute and at the meeting make a good faith attempt to resolve the Dispute, and as part of this must consider whether mediation is appropriate.
A Party may seek immediate interlocutory relief or other interim remedy in case of genuine urgency.
Occupation Health & Safety
If the Supplier or its employees, agents or contractors, shall be physically engaged on the Client’s premises, site or location(s) controlled by the Customer then the Customer shall ensure:
that all proper and reasonable work place health and safety standards and polices are in place;
all of the Supplier’s employees, agents and/or contractors on site are properly inducted; and
the Supplier shall ensure It and its employees, agents and contractors comply with the site work health and safety policies and procedures.
If either the Supplier or the Client become aware of a workplace incident occurring on site then they shall notify the other Party promptly and co-operate in the investigation of the incident and any remedial action necessary.
Either Party may, acting reasonably, suspend the performance of the Contract if they are reasonably concerned about the health and safety of persons on a site or following an incident until satisfied that the site is safe.
This Agreement, together with any Project Schedules contains the entire understanding of the Parties as to its subject matter and any and all previous understandings or agreements on that subject matter cease to have any effect from the date of this Agreement.
In the event of any inconsistency between this Agreement and a Project Schedule, the Project Schedule will take precedence to the extent of any inconsistency.
Severance
If any provision of this Agreement is invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement are and continue to be valid and enforceable in accordance with their terms.
To be effective, a notice under this Agreement must be in writing and given to a party either:
by hand delivery; or
by registered post to the recipient’s address now stated or as last notified. Notice by post is given 3 days after it is posted; or
by email to the recipient’s email address last known to the sender for that purpose and is given when the Electronic Communications Act 2000 (SA) specifies.
Where two or more persons comprise a party, notice to or from one is effective notice to or from all.
Sub-Contract
The Supplier may sub-contract part performance of the supply of the Goods and/or Service however they are not relieved of performance of any obligations under the Contract and will be liable for all acts and omissions of a sub-contractor as if they were our own.
If requested, the Client may require the Supplier to procure from any sub-contractor a confidentiality agreement, on terms consistent with this agreement.
A party will not be liable to the other party for any delay or failure to perform its obligations if such failure or delay is due to a Force Majeure Event.
The impacted party must notify the other party as soon as practical of any anticipated delay due to a Force Majeure Event. The performance of the impacted party’s obligations under this Agreement will be suspended for the period of the delay due to the Force Majeure Event.
If a delay due to a Force Majeure Event exceeds 30 days, either party may terminate this Agreement immediately on providing 14 days’ notice.
Modern Slavery
The Supplier warrants, represents and undertakes that:
it shall notify the Client if it becomes aware of any actual or suspected Modern Slavery in its supply chain;
it has implemented due diligence procedures to identify Modern Slavery in any part of its supply chain;
that it maintains and completes a set of records to trace the supply chain of all goods and services provided to the Client in connection with this Agreement;
it will respond to the Client’s enquiries, co-operate with any investigation and allow the Client to audit any books, records or other documentation in accordance with this Agreement; and
any information provided to the Client is true and accurate and can be relied upon for the purposes of the Modern Slavery Act 2018 (Cth).
FEEDBACK & MARKETING
The Service Provider may use any feedback provided for promotional and quality assurance purposes, whether it reaches us in emails, letters or on our feedback forms.
If the Client provides any written comments or feedback to the Supplier, the Client grants the Supplier a perpetual, irrevocable, royalty-free, world-wide, assignable and sub-licensable licence to use that content for marketing, evaluation and quality assurance purposes.
MISCELLANIOUS
This Agreement may only be amended by written agreement between the parties.
This Agreement may be executed in counterparts, including via electronic signature, each of which executed counterpart is deemed to be an original and all of which taken together constitute one and the same agreement. Unless otherwise dated at the top of the document, this Agreement will be deemed to have been dated on the day the final party executes their counterpart.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right and the exercise of a power or a right does not preclude its future exercise or the exercise of any other power or right.
Nothing in this Agreement or in the relationship of the Parties will, without more, constitute any partnership, joint venture, employer / employee or agency relationship between the Parties and no Party has any authority to bind any other Party except with the express written approval of that other Party.
This Agreement shall be binding upon the Parties and their successors and permitted assigns. No Party may sell, assign or otherwise dispose of any of its rights or obligations hereunder without the prior written consent of the other Party.
This Agreement is governed by laws of South Australia and the Commonwealth of Australia and the Parties submit themselves to the non-exclusive jurisdiction of the Courts of South Australia for all proceedings arising from this Agreement.
Each party must do all things reasonably necessary to give effect to this Agreement and the transactions contemplated by it.
Clauses 10, 11, 12, 13, 15 and 18 contain continuing obligations that survive termination or expiration of this Agreement.
