Work Safety Hub Customer Terms of Service

Last Modified: March 5, 2024
 

1.    Definitions and interpretation    
2.    Basis of the agreement and Term   
3.    Scope of the Services    
4.    How must the Contractor supply Services    
5.    Contractor’s personnel    
6.    Restraint    
7.    Price and payment    
8.    Reporting and records    
9.    Warranties    
10.    Intellectual Property    
11.    Confidentiality and privacy    
12.    Insurance    
13.    Termination    
14.    Disputes    
15.    Relationship between the parties    
16.    Policies not binding on Purchaser    
17.    Publicity    
18.    Assignment and Novation    
19.    Waiver    
20.    Notices    




Background

1. Client Name (Purchaser) is a Type of Organisation.

2. Purchaser seeks to engage a contractor to perform the Services and has issued a Request for Quote for the Services.

3. In its response to the Client Name, the Contractor has represented that it has the expertise, experience, and resources to supply the Services to meet the Purchaser’s requirements.

4. In reliance on those representations, the Purchaser has chosen the Contractor to supply the Services.

5. This agreement sets the terms on which the Contractor will supply and the Purchaser will acquire the Services.
__________________________________________________________________________

This agreement witnesses that in consideration of, among other things, the mutual promises in this agreement, the parties agree as set out in the Operative part of this agreement.

Operative part

1.    Definitions and interpretation

1.1    Definitions
The meanings of the terms used in this document are set out below.

“Additional Services” means the additional services referred to in clause 4.2.

“Agreement” means this agreement (including the recitals, these definitions and the interpretation provisions, the terms and conditions, and the Schedules) and any subsequent amendments to it.

“Anniversary” means the date on which the Initial Period, First Extension or Second extension expires, as the context requires.

“Authority” includes any governmental, semi-governmental or local government authority, administrative or judicial body, tribunal or court, department, commission, public authority, Minister, statutory corporation, authority or instrumentality, and includes any self-regulatory organisation established under statute or any stock exchange.

“Business Day” means each day from Monday to Friday (inclusive), except statutory and public holidays in Melbourne, Victoria and Sydney, New South Wales.

“Company” means Work Safety Hub (ABN 34 137 530 321). The company will exercise reasonable skill, care and diligence in providing the Services in accordance with standards ordinarily exercised by members of the profession in the same locality under similar conditions.
    
“Confidential Information” means information of whatever nature and in whatever medium belonging to or held by a party (“the disclosing party”) (including, where relevant, information relating to that party’s customers, Related Persons, or other third parties) whenever and however it is disclosed or comes to the knowledge of the other party (“the recipient”), including information that:

1    is by its nature confidential;
2    is designated by the disclosing party as confidential; or
3    the recipient knows or ought to know is confidential,

and in the case of Purchaser, includes information concerning its business processes and customers.

“Contractor Systems” has the meaning given in clause 11.

“Core Services” means the services referred to in clause 4.1.

“Correspondence” means the correspondence exchanged between the Contractor and the Purchaser or its agent and explicitly referred to in the Agreement and/or appended to, and forming part of, the Agreement.

“Dispute” means any dispute, difference or disagreement arising between the parties relating to the interpretation of this agreement or any matter arising out of, or in connection with this agreement.

“Effective Date” means the date this agreement is signed. 

“Fees” means all amounts payable by Purchaser to the Contractor under and in accordance with this agreement, including any additional services agreed by Purchaser under clause 4.2(b)(2) for Additional Services.

“Index Number” has the meaning given to it in clause 3.3(b)(2).

“Insolvency Event” includes any of the following events affecting a party:

1    a party informs the other in writing, or creditors generally, that the party is insolvent or is financially unable to proceed with the Agreement;
2    execution is levied against a party by a creditor;
3    a party is an individual person or a partnership including an individual person, and if that person:

(i)    commits an act of bankruptcy;
(ii)    has a bankruptcy petition presented against him or her or presents his or her own petition;
(iii)    is made bankrupt;
(iv)    makes a proposal for a scheme of arrangement or a composition; or
(v)    has a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor’s petition, or has a sequestration order made, under Part X of the Bankruptcy Act 1966 (Cth) or like provision under the law governing the Contract; or

4    in relation to a party being a corporation:

(i)    notice is given of a meeting of creditors with a view to the corporation entering a deed of company arrangement;
(ii)    it enters a deed of company arrangement with creditors;
(iii)    a controller or administrator is appointed;
(iv)    an application is made to a court for its winding up and not stayed within 14 days;
(v)    a winding up order is made in respect of it;
(vi)    it resolves by special resolution that it be wound up voluntarily (other than for a member’s voluntary winding up); or
(vii)    a mortgagee of any of its property takes possession of that property;

5    if the party is a partnership or joint venture and any member of the partnership or joint venture commits or is subject to any of the events set out in (1)-(4); or
6    if the party is a partnership or joint venture and any step is taken to dissolve the partnership or joint venture.

“Intellectual Property Rights” means any registered or unregistered intellectual property right, including:

1    patents or rights concerning any discovery, invention, process, improvement, technique or procedure or any information concerning the foregoing (whether patentable or not);
2    trademarks, business names or trading styles;
3    designs;
4    copyright and any similar or neighbouring right, including Moral Rights; and
5    eligible layouts, protectable computer programs, and any right to seek registration of, or take action for infringement of, any intellectual property right.

“Key Personnel” means the Contractor's key personnel specified in schedule 5.

“Law” means the law in force in the jurisdiction in which the Services are being performed, including common or customary law, equity, judgment, legislation, orders, regulations, statutes, by-laws, ordinances or any other legislative or regulatory measures, including any amendment, modification or re-enactment of them, and includes the requirements of any Authority having jurisdiction over the parties or the Services.

“Moral Rights” means any of the rights described in Article 6b of the Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended and revised from time to time), being “droit moral” or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth) or any other law), that exists, or that may come to exist, anywhere in the world.

“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent or who can be reasonably ascertained, from the information or opinion.

“Proposal” means the Company’s written offer to provide consulting services, which accompanies these conditions.

“Purchaser/Client” means the person to whom the company is contracted to provide services and who is ultimately responsible for payment. The Client may be represented by an Agent (e.g. Consulting Engineer, Project Manager, Architect, Solicitor, etc.) who acts with his authority and arranges for or directs the services on his behalf.  The Client (or Agent) must provide to the Company (where relevant):

• Written acceptance of the Proposal.
• Approvals for access, name of site contacts and keys.
• Previous reports, assessments, technical information and documentation relevant to the scope of work.
• Survey plans and data regarding underground services.
• Other information relevant to the brief.

The company assumes no responsibility for any consequences arising from any information or condition that was concealed, withheld, misrepresented, or otherwise not fully disclosed or available to the Company.
If the Proposal is accepted by an Agent, the Agent warrants to the Company that he has the Client’s authority to do so and accepts that he is personally liable for the Client’s obligations under the engagement. If the person who accepts the Proposal does not indicate in writing he is an Agent at the time of acceptance, he is the Client and liable accordingly.

“Purchaser Data” means any and all information provided, submitted or uploaded to the programs or systems provided by the Contractor by the Purchaser or any Related Person to the Purchaser.

“Records” has the meaning given in clause 9.2(a)(1).

“Related Person” is any employee, officer, agent, adviser or subcontractor of a party.

“RFQ” means the Request for Quote.

“Schedule” a schedule to this agreement (including any attachments to that schedule) and form part of it.

“Services” means the Services (referred to in clause 4.1), Additional Services (referred to in clause 4.2) and any other services supplied or to be supplied by the Contractor under this agreement, and includes all deliverables (such as written reports) to be supplied by the Contractor as part of the Services.

“Service Levels” means the standards to which the Services must be supplied, also referred to as “key performance indicators” or “KPIs” or “performance measures’, in schedule 4 or otherwise set out in Specifications.

“Service Materials” means all things, materials and information specifically developed, created or generated by the Contractor (whether alone or with any other person, Purchaser, their employees or other contractors) as a part of, or to supply, the Services, including without limitation, databases, drawings, plans, artwork, designs, logos, reports, advice, proposals and records.
    
“Special Terms and Conditions” means all specifications for the Services, including all:

1    requirements set out in the RFQ, and
      Correspondence;
2    specifications set out in Schedule 2;
3    requirements for the Services specified in the RFQ and all parts of the Contractor’s response to the RFQ that are accepted by Purchaser; and
4    other requirements and specifications for the Services agreed by the parties from time to time. 

Special terms may also be applicable for Asbestos & Hazardous Material Investigations and Environmental Investigations. Where applicable to the proposed services, the Special Terms and Conditions are intended by the Client/Company to be complementary to the General Terms and Conditions accepted by the Client /Company. However, it is understood and agreed that, should any conflict of inconsistency arise between the application and/or interpretation of the General Terms and Conditions and these Special Terms and Conditions, then these Special Terms and Conditions shall take precedence and have full legal force and effect.

“Technical Specification” means the Purchaser’s technical specification enclosed with the RFQ.

“Quote” The Contractor’s response to the RFQ.

“Term” means the term of this agreement calculated in accordance with clause 3.2.

Interpretation In this agreement, unless the contrary intention appears:

1    words importing a gender include any other gender;
2    words importing persons include a partnership and a body, whether corporate or otherwise;
3    words in the singular include the plural, and words in the plural include the singular;
4    clause headings are inserted for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer;
5    all references to dollars are to Australian dollars;
6    where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning; and
7    the schedules may form part of this agreement

(a)    This agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, between the parties with respect to the subject matter of this agreement.

(b)    Any reading down or severance of a particular provision does not affect the other provisions of this agreement. 

(c)    References to legislation include amendments to, and re-enactments of that legislation. 

(d)    References to a party include that party’s successors and permitted assignees or transferees.

(e)    A reference to any of the words “include”, “includes” and “including” are to be read as if followed by the words “without limitation”.

(f)    A reference to a person includes any individual, firm, body corporate, partnership, joint venture, unincorporated body, association, government agency or Authority and any executor, administrator, substitute, successor or permitted assign of that person.

(g)    A reference to any Authority, professional institute, association, agency, or body includes any succeeding Authority, professional institute, association, agency, or body with similar objectives.

(h)    No rule of construction will apply in the interpretation of this agreement to the disadvantage of one party on the basis that the relevant party put forward or drafted this agreement or any provision of this agreement.

2.    Basis of the agreement and Term

2.1    Purchaser

(a)    Purchaser agrees to acquire the Services from the Contractor.

2.2     Term of agreement

(a)    This agreement commences on the Effective Date and, unless otherwise extended or terminated in accordance with its terms will end once the service term of 12 months has been provided. 

(b)    Purchaser may, at its discretion, extend this agreement for an additional 12 months to commence on the day after the end of the Initial Period and ending 12 months after that date by giving notice in writing to the Contractor before expiry of the Initial Period (First Extension), subject to the Fees being renegotiated. 

3.    Scope of the Services

3.1    Core Services

During the Term, the Contractor agrees:

(a)     to supply to Purchaser the services specified in Schedule 2 following requests by Purchaser from time to time for the Contractor to supply those services;

(b)    to supply those services for the Fees; and

(c)    that Purchaser is not liable to pay any amount in respect of those services in excess of the Fees.

3.2    Additional Services

(a)    From time to time during the Term, the Purchaser may request the Contractor to supply services similar to the services specified in the proposal but which are outside the scope of the services specified in the proposal.

(b)    If the Purchaser makes a request of the Contractor under clause 4.2(a), the Contractor must promptly notify the Purchaser:

    (1)    whether the Contractor can supply those additional services to Purchaser; and

    (2)    the total cost for supplying those additional services to the Purchaser.

(c)    If the Purchaser notifies the Contractor in writing that the Purchaser approves the total cost for additional services notified by the Contractor under clause 4.2(b)(2), the Contractor must supply those additional services in accordance with this agreement for that agreed cost.

4.    How must the Contractor supply Services

4.1    Contractor to Supply Services

(a)    Subject to clause 5.2, the Contractor must supply all Services, and all services necessarily incidental to the Services, to Purchaser:

    (1)    in accordance with the Services Specifications;

    (2)    in accordance with any due dates for the Services;

    (3)    in accordance with, and so as to meet, the Service Levels;

    (4)    in accordance with Purchaser’s reasonable directions from time to time; 

    (5)    to the best of the Contractor’s abilities and knowledge;

    (6)    in a professional, efficient and safe manner, without negligence; and

    (7)    in compliance with all applicable standards, awards, laws and regulations (including, without limitation, awards and laws applicable to the Contractor’s employees).

(b)    The Contractor must cooperate with and work with all other contractors and suppliers of goods and services to Purchaser as may reasonably be required in connection with the Services if requested by Purchaser.

4.2    Third Party Services

(a)    The Purchaser acknowledges and agrees that part of the Services to be provided by the Contractor pursuant to this Agreement may include an online software system provided by a third-party software provider.

(b)    Notwithstanding any other term of this Agreement, the Purchaser acknowledges and agrees that:

(1)    the Contractor does not warrant that access to, or operation of the Site will be uninterrupted;

(2)    the Site may be altered or discontinued by the service provider; and

(3)    use of the Site by the Purchaser will be subject to the service provider's terms and conditions, including without limitation any such terms and conditions relating to Intellectual Property Rights.

4.3    Timesheets
    
The Contractor must if requested by Purchaser:

(a)    at the end of each month, or any longer period requested by Purchaser, during the Term, submit time sheets in a form approved by Purchaser for personnel used by the Contractor to supply the Services; and

(b)    verify to Purchaser’s reasonable satisfaction the details of any time sheet submitted under clause 5.2(a).

4.4    Access to sites and information

Purchaser must:

(a)    allow the Contractor reasonable access to its premises and facilities as reasonably necessary for the Contractor to supply the Services; and

(b)    provide the Contractor with information in its possession or control that the Contractor reasonably requires to supply the Services.

5.    Contractor’s personnel 

5.1    Key Personnel
            
The Contractor:

(a)    shall use its reasonable endeavours to ensure that the Key Personnel are actively involved in supplying the Services during the Term, ensuring that they perform in a way that complies with this agreement;

(b)    must notify Purchaser if any of its Key Personnel are no longer to be employed or engaged by the Contractor;

(c)    may replace its Key Personnel only with people approved by the Purchaser in writing; and

(d)    must, if Purchaser reasonably requests the Contractor to replace any Key Personnel or other personnel that work on the Services, appoint a suitable replacement for any such Key Personnel or other personnel subject to Purchaser’s prior approval of the proposed replacement.

5.2    Personnel

The Contractor must ensure that:

(a)    it has sufficient, suitable employees to perform its obligations under this agreement;

(b)    its employees and contractors comply with:

    (1)    this agreement to the extent required to enable the Contractor to perform its obligations under this agreement; and

    (2)    the usual staff, safety and security practices of Purchaser as notified by Purchaser to the Contractor from time to time while attending the premises of Purchaser.

6.    Restraint  

(a)    The Contractor must not provide Services to a third party that relate in any way to the types of Services provided to Purchaser under this Agreement if doing so will interfere with or contravene the obligations of the Contractor set out in this Agreement.

7.    Price and payment  

7.1    Fees are the total amount payable

(a)    Subject to clause 8.1(b), the total amount payable by the Purchaser to the Contractor in connection with the Contractor performing all of its obligations under this agreement is:

(1)    the Fees in respect of Core Services; and

(2)    any additional costs agreed by Purchaser under clause 4.2(b)(2) for Additional Services.

(b)    Purchaser is not liable to pay any costs or expenses that may be incurred by the Contractor in connection with the Contractor performing its obligations under this agreement except to the extent:

(1)    The contractor has notified the Purchaser of any such costs and expenses before they are incurred;

(2)    the Contractor provides justification reasonably satisfactory to Purchaser as to why any such costs and expenses may reasonably be incurred in connection with this agreement; and

(3)    Purchaser gives its written approval for those costs and expenses before they are incurred.

(4)    If undisclosed or unexpected conditions are encountered, then additional work not allowed may be required. Under these circumstances, the Company will endeavour to advise the Client and seek its approval before undertaking work which exceeds the estimate or sum. If any activity is required that is outside the scope of the Proposal, the Company will charge for such additional work at the current standard hourly rates for personnel and equipment.

(5)    The schedule of rates in the Proposal is current for a period of three months from the date of the Proposal and may thereafter be varied in accordance with changes in the market for the Services, CPI, award and statutory changes.  

(c)    The Contractor must invoice the Purchaser for the Fees as specified in the proposal or as otherwise notified by the Purchaser from time to time.

7.2    When may the Contractor invoice

The Contractor may invoice the Purchaser:

(a)    the Fees for Core Services at the times specified in the proposal; and

(b)    any additional costs agreed by Purchaser under clause 4.2(b)(2) for Additional Services after the Contractor has finished supplying those Additional Services to Purchaser.

7.3    Invoicing and Payment

(a)    Each invoice must be in the form of a Tax Invoice and must clearly identify the Services the subject of the invoice and any other information reasonably required by Purchaser.

(b)    Purchaser:

(1)    must pay each Contractor invoice that is correct and issued in accordance with this agreement;

(2)    has no obligation to pay any invoice that is incorrect or is not issued in accordance with this agreement, or any interest or other charge arising out of the non-payment of any such invoice under this clause; and

(3)    may require the Contractor to correct and reissue any incorrect invoice or cancel any invoice not issued in accordance with this agreement.

(c)    If the Contractor disputes that an invoice is incorrect, the relevant parties agree to treat the matter as a dispute to be dealt with in accordance with clause 15.

(d)    The contractor will charge interest at the rate of 11.5% per month on any invoices unpaid after 30 days.

(e)    At the Company’s election, invoices will be rendered monthly or on completion of the work and are due for payment in full within 7 days, unless subject to an ongoing agreement.  

7.4    GST

(a)    A reference in this clause 8 to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

(b)    Any amount referred to in this agreement that is relevant in determining a payment to be made by one of the parties to the other is exclusive of any GST unless indicated otherwise.

(c)    If GST is imposed on a supply made under or in connection with this agreement, the consideration provided for that supply is increased by the rate at which that GST is imposed. The additional consideration is payable at the same time as the consideration to which it relates.

(d)    If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this agreement, the amount of the reimbursement will be net of any input tax credit that may be claimed by the party being reimbursed in relation to that expense or outgoing.

8.    Reporting and records

8.1    Information

The Contractor must if reasonably requested by Purchaser from time to time:

(a)    disclose to Purchaser all information in the Contractor’s client file, and prepare any reports that may reasonably be required in relation to the Services, Fees or other matters in relation to the Contractor’s obligations under this agreement; and

(b)    attend any regular or ad hoc meetings with Purchaser, to be arranged by Purchaser at a time convenient to both parties, to facilitate successful supply of the Services.

8.2    Records and audit

(a)    The Contractor must:

(1)    keep adequate records in sufficient detail to enable its compliance with this agreement to be verified (Records);

(2)    permit Purchaser and their auditors to:

•    after giving the Contractor at least 48 hours notice of their intention to do so, examine the Records at any time during the Contractor’s usual business hours; and

•    after giving the Contractor at least 5 Business Days notice of their intention to do so, conduct an audit to verify compliance, but no more than once each 12 month period during the Term (unless the Contractor has not been performing or is not performing obligations under this agreement).

(b)    If Purchaser or its auditors intend to conduct an audit under clause 9.2(a)(2):
 
(1)    Purchaser must provide the Contractor with a copy of its auditing terms of reference at least 5 days before the audit; and

(2)    Purchaser and its auditors must conduct the audit in a manner that does not preclude the Contractor from supplying the Services in accordance with this agreement.

(c)    If any audit indicates that the Contractor has not complied with this agreement (excluding a trivial non-compliance), the Purchaser may:

(1)    if the non-compliance includes an overpayment by Purchaser, invoice the
Contractor for that overpayment; and

9.    Warranties

The Contractor warrants that:

(1)    it has full corporate power and authority to enter into, perform and observe its obligations under this agreement, and the execution, delivery and performance of this agreement by it has been duly authorised by all necessary corporate action;

(2)    its obligations under this agreement are valid and binding and enforceable in accordance with its terms;

(3)    at the time of the commencement of this agreement no fact or circumstance exists which may materially affect the Contractor’s ability or willingness to perform this agreement that has not been fully disclosed to Purchaser;

(4)    it has all authority and rights required to enter into and perform its obligations under this agreement;

(5)    the Contractor must ensure that its Related Persons that will be performing the Services must be of sound character; and

(6)    It will supply all Services and perform all of its obligations:

    (A)    in accordance with this agreement, including the Service Levels; 

    (B)    with due care and skill; and

    (C)    in accordance with all applicable Laws and industry standards.

10.    Intellectual Property

(a)    The Contractor warrants that, unless otherwise provided in this Agreement, the Contractor’s Services, Services Materials, systems, documents and methods of working, each specified in this Agreement or provided by the Contractor to the Purchaser (“Contractor’s Systems”) shall not infringe any Intellectual Property Right.

(b)    Use by the Purchaser in accordance with this Agreement of the Contractor’s System’s will not infringe the Intellectual Property Rights of any person.

(c)    The Contractor grants to the Purchaser a non-exclusive licence to use the Contractor’s Systems.

(d)    The Purchaser may not, without the prior written consent of the Contractor:

(1)    sell, lease, sub-license or provide copies of the Contractor’s Systems (or any part thereof) to any third party;
(2)    modify, disassemble or reverse engineer the Contractor’s Systems or use the Contractor’s Systems in any way, to manufacture a similar product or service, unless expressly permitted by law.

(e)    Ownership of all Intellectual Property Rights associated with the Contractor’s Systems, other than Intellectual Property Rights in information or other documents or material provided to the Contractor by the Purchaser (which are and shall remain vested in the Purchaser), vest and remain vested in the Contractor.

(f)    The Contractor may by notice to the Purchaser terminate the licences granted above if the Fees are not paid in accordance with this Agreement.

(g)    The Purchaser will retain all rights in, title and interest to, the Purchaser Data. The Contractor will retain all rights in, title and interest to, the Contractor’s Systems.

11.    Confidentiality and privacy 

(a)    Purchaser on the one hand (party) and the Contractor on the other (party):

(1)    may use Confidential Information of the other party solely for the purposes of this agreement;

(2)    except as permitted under clause 12(a)(3), must keep confidential all Confidential Information of the other party; and

(3)    may disclose Confidential Information of the other party only:

    (A)    to persons who:

        (i)    are aware and agree that the Confidential Information of the other party must be kept confidential; and

        (ii)    either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by or are the agent of the other party; or

    (B)       as required by law or stock exchange regulation.

(b)    Even though information is the Confidential Information of a party, the other party does not have to comply with clause 12(a) in relation to that Confidential Information if:

(1)    the Confidential Information becomes public knowledge during this agreement;
    or

(2)    the other party became aware of that Confidential Information from a third
    person in circumstances where there was no breach of any obligation of confidence.

(c) Purchaser may disclose Confidential Information of the Contractor to any Minister, department or officer of the State or Victoria for a legitimate government purpose.

(d)    Each party must establish and maintain effective security measures to safeguard the other party’s Confidential Information from disclosure, use or reproduction not authorised by this agreement.

(e)    The Contractor must return or destroy (and provide evidence of such destruction) any of Purchaser’s Confidential Information (including any copies) in the power, possession or control of the Contractor or its Related Persons on the earlier of the expiry or termination of this agreement or at any other time at the request of Purchaser, save for one copy of the Confidential Information, which the Contractor may retain and use only for its regulatory or compliance purposes.

(f)    Contractor may at any time require the Purchaser to give a written undertaking in a form approved by Contractor relating to the non-disclosure, use and reproduction of Contractor‘s Confidential Information. The Purchaser must promptly arrange for such undertakings to be given.  The Purchaser must also ensure to the best of their ability, that the Related Persons comply with this undertaking.

(g)    Each party must comply with:

(1)    the reasonable directions of the other party in relation to the handling of any Personal Information held or controlled by the first party; and

(2)    the Privacy Act 1988 (Cth).

(h)    Each party must immediately notify the other party on becoming aware of a suspected or actual breach of this clause 12 by any person involved in the performance of the Services.

12.    Insurance 

(a)    The Contractor must effect and maintain in a form appropriate to the Contractor’s activities under this agreement and with an insurer acceptable to Purchaser, comprehensive insurance in respect of the Services, including:

(1)    public and products liability insurance appropriate to the Contractor’s activities under this agreement for an amount not less than $10 million for any one occurrence and in the annual aggregate in respect of products liability insurance, including loss of or damage to personal and real property of Purchaser (including documents and records);

(2)    professional indemnity insurance for an amount of $5 million for any one claim for breach of professional duty whether incurred in contract, tort or otherwise by reason of any act or omission of the Contractor; and 

    (together, the insurance policies).

(b)    The Contractor must:

(1)    effect the insurance policies referred to in clause 13(a)(3) before starting to supply any Services and maintain them for not less than 3 years following termination or expiration of this agreement;

(2)    effect the insurance policies referred to in clauses 13(a)(1) and (2) before starting to supply any Services and maintain them until termination or expiration of this agreement, and in respect of the product liability insurance policies referred to in clause 13(a)(2), maintain such policies for not less than 6 years following termination or expiration of this agreement, or as otherwise required by Purchaser;

(3)    ensure its subcontractors have sufficient appropriate insurance to satisfy their liabilities arising out of or in relation to this agreement; and

(4)    provide, for Purchaser’s approval, certificates of cover evidencing the insurance specified in this clause, such approval not to be unreasonably withheld.

(c)    The Company’s liability for a breach of Section 74(1) of the Trade Practices Act (or any equivalent legislation) is limited at the Company’s option to either providing those Services again, or refunding the price of that part of the Services in respect of which the breach occurred. The Company’s liability to the Client for loss or damage caused by a failure to exercise reasonable care is limited to three times the fee actually paid by the Client to the Company for the services concerned.

13.    Termination  

13.1    Termination for convenience

Purchaser may terminate this agreement at any time in its absolute discretion, and without cause or penalty by giving the Contractor 30 days’ notice. 
2 business days' notice must be provided when rescheduling/cancelling approved work or 50% of the daily rate is payable. 

13.2    Termination by Purchaser for breach or insolvency

Purchaser may terminate this agreement in respect of Purchaser’s involvement in this agreement with immediate or later effect by giving notice to the Contractor, if the Contractor:

(a)    breaches any term of this agreement and, if such breach is capable of remedy, does not remedy the breach within 10 Business Days after the date on which written notice of the breach is provided by Purchaser (or such other period as is agreed between the parties);

(b)    breaches any term of this agreement that is not capable of remedy;

(c)    repeatedly breaches any term or terms of this agreement, whether or not they are remedied and whether or not they are material; or

(d)    is the subject of an Insolvency Event.

13.3    Termination by the Contractor for breach or insolvency

The Contractor may terminate this agreement in respect of Purchaser with immediate or later effect by giving notice to Purchaser if Purchaser:

(a)    breaches any term of this agreement and, if such breach is capable of remedy, does not remedy the breach within 10 Business Days after the date on which written notice of the breach is provided by the Contractor to Purchaser (or such other period as is agreed between the parties);

(b)    breaches any term of this agreement that is not capable of remedy;

(c)    repeatedly breaches any term or terms of this agreement, whether or not they are remedied and whether or not they are material; or

(d)    is the subject of an Insolvency Event.

13.4    Other matters following termination

(a)    In anticipation of, or as soon as possible after, termination or expiry of this agreement, the Contractor must, if requested by Purchaser, at no additional cost to Purchaser:

(1)    provide to Purchaser a copy of all databases to be managed by the Contractor under this agreement as at the date of termination or expiry;

(2)    provide all assistance reasonably requested by Purchaser (including by way of transfer of data in compatible formats) in order to transition the Services to Purchaser or another supplier.

(b)    As soon as possible after termination or expiry of this agreement Purchaser on the one hand (party) and the Contractor on the other (party) must return to each other all Confidential Information of the other party in material form in the first party’s possession or control.

(c)    At any time after termination or expiry of this agreement, a party must not: 

(1)    use or disclose any Confidential Information of the other party;

(2)    record any Confidential information of the other party into any form; or

(3)    sell or otherwise transfer any Confidential Information of the other party except as permitted under this agreement.

13.5    Survival

Any term of this agreement which is expressed to survive, or by its nature survives, termination or expiry of this agreement, survives termination or expiry of this agreement, including clauses 8.5, 10, 11, 12, and 13.

14.    Disputes 

(a)    No party may start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has first complied with this clause.

(b)    A party claiming that a Dispute has arisen must notify the other party in writing of the event occurring that has given rise to the Dispute.

(c)    Within 10 days after a notice is given under clause 15(b) each party must nominate in writing to the other party an employee authorised to settle the Dispute on its behalf (Dispute Manager).

(d)    During the 20 day period after a notice is given under clause 15(c) (or if the parties agree a longer period, that longer period) each party’s Dispute Manager must use their best efforts to resolve the Dispute.

(e)    If a Dispute is not resolved within the period referred to in clause 15(d), the Dispute must be referred:

(1)    for mediation, in accordance with the Australian Commercial Disputes Centre (ACDC) mediation guidelines; and

(2)    to a mediator agreed by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current chief executive officer of ACDC or the CEO’s nominee (or if no such person is available or willing to nominate a mediator, by the then President of the Law Society of New South Wales).

(f)    If the Dispute is not resolved under clause 15(e) within 14 days (or any longer period that may be agreed by the parties) any party may initiate court proceedings.

(g)    If a party to a dispute does not comply with any provision of this clause, the other party to the Dispute will not be bound by this clause.

(h)    Each party must bear its own costs of complying with this clause.

15.    Relationship between the parties 

(a)    The Contractor acknowledges that:

(1)    the Contractor will supply the Services as an independent contractor;

(2)    the agreement does not create a relationship of employer and employee, principal and agent, or partnership between Purchaser and:

(A)    the Contractor;

(B)    any of the Contractor’s subcontractors; or

(C)    any of the Contractor’s or the Contractor’s subcontractor’s employees;
            and

(3)    this agreement does not give the Contractor, its subcontractors or their employees, authority to bind Purchaser.

(b)    If under any statute Purchaser is considered an employer or principal employer and is obliged to make payments in respect of the amounts paid or benefits provided to or in relation to any employee or subcontractor of the Contractor, the Contractor:

(1)    must make all such payments on behalf of Purchaser; and

(2)    indemnifies Purchaser against all such payments made by Purchaser, including:

(A)    any additional tax, levy, or other payment whatsoever, including any interest, penalty or late fee that may be payable in respect of the late or non-payment of such tax, levy or other payment; and

(B)    remuneration, annual leave, sick leave, long service leave or other leave, or any other payment or entitlement to be paid or provided to such persons; provided that: Purchaser provides the Contractor with prompt notice of any such payments.

16.    Policies not binding on Purchaser
    
(a)    The Contractor acknowledges and agrees that Purchaser is not bound by this agreement to comply with their respective policies, guidelines, procedures and practices.

(b)    Except where to do so would contravene any statute or cause any part of this clause to be void or unenforceable, Purchaser excludes liability to the Contractor for all losses, damages, costs, expenses claims, liabilities or charges suffered or incurred by the Contractor or any of its personnel in connection with Purchaser’s, or any of its personnel’s, non-compliance with its policies, guidelines, procedures and practices.

17.    Publicity

(a)    The Contractor must not make any press or other announcements or releases relating to this agreement or the Services without the prior written approval of Purchaser unless, and only to the extent that the announcement or release is required by Law or by a stock exchange.

(b)    An approval given under this clause 18 is at Purchaser’s discretion and may, without limitation, prescribe the manner and form of the announcement or release.

18.    Assignment and Novation

(a)    The Contractor must not assign any rights or novate this agreement without the prior written consent of Purchaser.

19.    Waiver

(a)    A waiver of any provision in this agreement by Purchaser must be in writing and signed by Purchaser’s representative.

(b)    No waiver of a term or condition of this agreement will operate as a waiver of another breach of the same or of any other term or condition contained in this agreement.

(c)    If a party does not exercise (or delays in exercising) any of its rights, that failure or delay does not operate as a waiver of those rights.

(d)    A single or partial exercise by a party of any of its rights does not prevent the further exercise of any right.

20.    Notices

(a)    Any notice under this agreement is only effective if in writing, and addressed as follows:

(1)    if given by the Contractor to Purchaser, marked for the attention of Purchaser’s representative and addressed as specified in Schedule 1 or as otherwise notified by Purchaser; or

(2)    if given by Purchaser to the Contractor, marked for the attention of the Contractor’s representative and addressed as specified in Schedule 1 or as otherwise notified by the Contractor.

(b)    Any notice, request or other communication is to be delivered by hand, sent by pre-paid post or transmitted electronically. If it is sent or transmitted electronically, a copy is to be sent to the addressee by pre-paid post.

(c)    A notice will only be deemed as given and received:

(1)    if delivered by hand, upon delivery to the relevant address;

(2)    if sent by pre-paid ordinary post within Australia, upon the expiration of 2 Business Days after the date on which it was sent;

(3)    if transmitted electronically, upon receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient; and

(4)    in any event, if received after 5.00pm (local time in the place of receipt) on a Business Day or on a day that is not a Business Day, will be deemed to be delivered or received on the next Business Day.