SAFE START AUSTRALIA TERMS AND CONDITIONS

This Agreement is entered into between Nicolle Marie Sharkey t/a Safe Start Australia (ABN 86 715 015 572) (we, us or our) and you, the person, organisation or entity described in the Online Booking Form or Proposal (you or your), together the Parties and each a Party.

Background

We provide education sessions and consultancy services on safety and injury prevention for children, in particular infants and young children.  Our aim is to equip our clients with the capability and knowledge to create safe environments.

  1. Acceptance and Term

1.1         You accept this Agreement by the earlier of:

  • signing and returning this Agreement to us, including by email;
  • confirming by email that you accept this Agreement;
  • confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our website;
  • instructing us (whether orally or in writing) to proceed with the provision of the Services; and
  • making part or full payment of the Price.

1.2         This Agreement will commence on the Commencement Date and will continue until the date we have completed the provision of the Services to you (as reasonably determined by us), unless earlier terminated in accordance with its terms (Term).

  1. Services

2.1         In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

2.2         By purchasing the Services from us, you acknowledge and agree that the Services are provided for general information purposes only, and on an “as is” basis. The Services are not intended to be, and you must not use the Services on the basis that it is legal advice or individualised or customised advice. If you choose to make use of any information, materials or deliverables provided in the delivery of the Services, you do so at your own risk.  We do not assume any responsibility or liability, and you waive and release us from all responsibility or liability, arising from or connected with your use or reliance on the information, materials or deliverables provided in the delivery of the Services.  It is your sole responsibility to determine the suitability, reliability and usefulness of our Services.  Use of our Services is not intended to create, and does not create, a client relationship, or give rise to a duty of care, between you and us.

  1. Commencement

We will commence the provision of the Services within a reasonable time after the later of:

  • the Commencement Date;
  • receipt of payment of the Price in full or, if applicable, receipt of payment of any deposit amount set out in the Proposal; and
  • the satisfaction of any other conditions precedent contemplated by this Agreement.
  1. Rescheduling

4.1         You agree to contact us in writing (including by email) immediately, and at least 3 days prior to the Event Date, if you would like to reschedule the Event Date for the provision of the Services.

4.2         If you contact us to reschedule the Event Date, we will use our reasonable endeavours to reschedule the Event Date (but are under no obligation to do so).

4.3         If we are unable to reach a mutually agreed date or time to reschedule the Event Date, we may terminate this Agreement by written notice to you and clause 13.2(b) will apply.

4.4         We will notify you as soon as reasonably possible if we are required to cancel the Services or reschedule the Event Date.

  1. Your Obligations

You agree to:

  • comply with this Agreement, our reasonable requests or requirements, and all applicable Laws; and
  • provide all assistance, information, documentation, access (including, if applicable, access to any premises where we are to provide the Services), facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at Law.
  1. Payment

6.1         You agree to pay us:

  • the Price;
  • all Expenses; and
  • any other amount payable to us under this Agreement,

in accordance with the Payment Terms.

6.2         If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

  • immediately cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and/or
  • charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

6.3         You agree that if upfront payment for the Services is required (as set out in the Online Booking Form or Proposal), you will not be entitled to any part of the Services until all amounts under clause 6.1 have been paid in full.

  1. Warranties

You represent, warrant and agree that:

  • there are no legal restrictions preventing you from entering into this Agreement;
  • all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
  • you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
  • the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
  • any information, advice, material, work and services (including the Services) provided by us under this Agreement does not constitute legal advice or due diligence;
  • you will be responsible for the use of any part of the Services;
  • you are not and have not been the subject of an Insolvency Event;
  • if applicable, you hold a valid ABN which has been advised to us; and
  • if applicable, you are registered for GST purposes.
  1. Intellectual Property

8.1         As between the Parties:

  • we own all Intellectual Property Rights in Our Materials;
  • you own all Intellectual Property Rights in Your Materials, and
  • nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

8.2         As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

8.3         We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you, and the New Materials and Improvements, solely for the purposes for which they were developed and for your use and enjoyment of the Services, as contemplated by this Agreement.

8.4         If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

8.5         In the use of any Intellectual Property Rights in connection with this Agreement, you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.

8.6         This clause 8 will survive termination or expiry of this Agreement.

  1. Confidential Information

9.1         Each Receiving Party agrees:

  • not to disclose the Confidential Information of the Disclosing Party to any third party;
  • to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
  • to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

9.2         The obligations in clause 9.1 do not apply to Confidential Information that:

  • is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
  • is authorised to be disclosed by the Disclosing Party;
  • is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
  • must be disclosed by Law or by a regulatory authority, including under subpoena.

9.3         Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 9. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 9.

9.4         This clause 9 will survive the termination of this Agreement.

  1. Australian Consumer Law

10.1      Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

10.2      Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:

  • to cancel this Agreement with us; and
  • to a refund of any unused portion or a total refund (as applicable), or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the Services rectified in a reasonable timeframe and, if this is not done, to cancel this Agreement and obtain a refund of any unused portion or a total refund (as applicable) of this Agreement.

10.3      If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

10.4      Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

10.5      This clause 10 will survive the termination or expiry of this Agreement.

  1. Exclusions to liability

11.1      Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

  • your or your Personnel’s acts or omissions;
  • any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
  • any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
  • any Third Party Inputs;
  • the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
  • any event outside of our reasonable control.

11.2      This clause 11 will survive the termination or expiry of this Agreement.

  1. Limitations on liability

12.1      Despite anything to the contrary, to the maximum extent permitted by law:

  • we will not be liable for Consequential Loss;
  • our liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel); and
  • our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

12.2      This clause 12 will survive the termination or expiry of this Agreement.

  1. Termination

13.1      This Agreement will terminate immediately upon written notice by:

  • us, if:
  • you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within 10 Business Days of being notified by us;
  • you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
  • for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
  • you are unable to pay your debts as they fall due; and
  • you, if we:
  • are in breach of a material term of this Agreement, and that breach has not been remedied within 10 Business Days of being notified by you; or
  • are unable to pay our debts as they fall due.

13.2      Upon expiry or termination of this Agreement:

  • we will immediately cease providing the Services;
  • you agree that any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
  • pursuant to clauses 1(a)(1), (2) or (4), you also agree to pay us our additional costs arising from, or in connection with, such termination;
  • you agree not to disparage or otherwise make any unfavourable statements or comments regarding us, our Personnel, our clients, either directly or by implication, verbally or in writing; and
  • you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information, and if we requested by us, Our Materials, New Materials and our Intellectual Property, and/or documents containing or relating to our Confidential Information, Our Materials, New Materials and our Intellectual Property.

13.3      We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

13.4      Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

13.5      This clause 13 will survive the termination or expiry of this Agreement.

  1. GST

14.1      If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

14.2      If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.

14.3      If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

14.4      The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

  1. General

15.1      Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.

15.2      Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

15.3      Amendment: Upon the Commencement Date, this Agreement may only be amended by written instrument executed by the Parties.

15.4      Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

15.5      Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

15.6      Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Queensland Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

15.7      Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

15.8      Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

15.9      Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.

15.10    Governing law: This Agreement is governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

15.11    Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

15.12    Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

15.13    Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

  1. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Agreement, and:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Business Day means a day on which banks are open for general banking business in Queensland, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date this Agreement is accepted in accordance with its terms, or, if applicable the date otherwise specified in the Proposal.

Confidential Information includes information which:

  • is disclosed to the Receiving Party in connection with this Agreement at any time;
  • is prepared or produced under or in connection with this Agreement at any time;
  • relates to the Disclosing Party’s business, assets or affairs; or
  • relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

Event Date means the date for the provision of the Services, as set out on the Online Booking Form.

Expenses means any disbursements, including travel and accommodation costs and third party costs, reasonably and directly incurred by us for the purpose of the provision of the Services.

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

Insolvency Event means any of the following events or any analogous event:

  • a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
  • a Party ceases, or threatens to cease, carrying on business;
  • a Party is unable to pay the Party’s debts as the debts fall due;
  • any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
  • any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
  • any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.

Intellectual Property means any domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not. Including in respect of Intellectual Property.

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):

  • copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
  • creating derivative works from our Intellectual Property;
  • providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
  • assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of any of our Intellectual Property Rights, except as expressly permitted in this Agreement;
  • reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
  • using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the provision of the Services, whether before or after the date of this Agreement.

Payment Terms means the payment terms set out in our Online Booking Form, or if applicable, the payment terms set out in the Proposal we provide to you.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Price means the price set out in our Online Booking Form or, if applicable, as set out in the Proposal we provide to you and includes the deposit, if any.

Online Booking Form means the form, available on our website, which allows you to purchase the Services, and includes details of the Price and Payment Terms.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Services means the services set out in our Online Booking Form or, if applicable, the Proposal we provide to you.

Statutory Rights has the meaning given in clause 10.1.

Term has the meaning given in clause 1.2.

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.

17.         Interpretation

In this Agreement, unless the context otherwise requires:

(a)          a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b)         a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c)          a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d)         no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(e)          a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(f)          a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(g)          a reference to time is to local time in Queensland; and

(h)         a reference to $ or dollars refers to the currency of Australia from time to time.

For any questions and notices, please contact us at:

Safe Start Australia.com.au – Nicolle Sharkey – ABN 86 715 015 572

Email: nicolle@safestartaustralia.com.au

Last update: 1st April 2019

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