Terms & Conditions

General Conditions of Service

1.  Application of Terms

No terms or conditions endorsed on, delivered with or contained in the Client’s acceptance of the this Service Agreement will form part of this Service Agreement and the Client waives any right it may otherwise have to rely on such terms. None of these terms may be varied or amended in any way unless agreed to in writing and signed by both the Company and the Client.

2.  Nature and Provision of Services

The Client acknowledges and agrees that:

1. the services provided by the Company are those of a referrer to one or more third party service providers; and

2. the Company is not and does not hold itself out to be a professional service provider in any capacity.

3. The company may provide administrative services on behalf of the TPSP and client including document and contract handling and processing.

3.  Provision of Information by Client

The Client must provide the Company with adequate and prompt information and instructions when requested by the Company. The Company will not be required to perform the Services unless and until such information is provided.

4.  No Warranties or Representations

The Client acknowledges and agrees that:

1. the Client has received a complete copy of this Service Agreement before paying any money or signing any document in relation to this Service Agreement;

2. the Client has not relied, and does not rely, on any representation or warranty of any nature made by or on behalf of the Company other than those expressly set out in this Service Agreement;

3. the Company does not represent and gives no warranty as to the condition or fitness for purpose of the Services or any services provided by any referred third party service provider (including, without limit, representations or warranties as to profit or return on investment) or compliance or non-compliance with any law with respect to the Services;

4. although the Company aims to ensure that the information provided pursuant to this Service Agreement (including, without limit, to information relating to professional service providers) is accurate and reliable, the Company cannot and does not represent, warrant of guarantee the accuracy of such information;

5. before signing any document in relation to this Service Agreement, the Client has been provided with reasonable opportunity to obtain independent legal advice in respect of the Services and the matters the subject of this Service Agreement and has either obtained such advice or voluntarily decided not to do so;

6. the Client has had reasonable opportunity to make, and has made, all the enquiries that a prudent and careful person would make before entering into this Service Agreement; and

7. the Client enters into this Service Agreement on the basis of the Client’s inspections and the enquiries that the Client has carried out, and relying on the Client’s own judgment.

The Client will not make any objection or requisition, claim any compensation or seek any reduction in the Fees (or any other amounts payable pursuant to this Service Agreement), ask the Company to undertake any action or ask the Company to incur any cost or rescind this Service Agreement because of any matter referred to in this clause.

5.  Price and Payment

The Client must pay the deposit specified in the Appendix (if any) to the Company prior to commencement of the Services.

The Client must pay all Fees and other sums due and payable under this Service Agreement at the times and in the manner specified in the Appendix and as may otherwise be provided for in this Service Agreement. If the Appendix does not contain any details regarding the time and manner for payment, then the Company will be entitled to render invoices to the Client on a monthly basis for Services performed up to and including the date of the relevant invoice and all such invoices must be paid within 7 days of receipt by the Client. 

 

1. comply with any of the Client’s obligations under this Service Agreement and such failure is not remedied within 2 Business Days of written notice being given to the Client; or

2. pay, or cause to be paid, any money due and payable from the Client to the Company under this Service Agreement or under any other agreement between the Company and the Client.

The Client must indemnify, and keep indemnified, the Company for all loss, damage, costs and expenses arising from any termination pursuant to this clause 11, including but not limited to legal costs on a full indemnity basis.

The Company may terminate this Service Agreement for its convenience without liability by giving 7 days written notice to the Client.

12.  Confidentiality

1. Subject to clause 12(b), each party must keep the terms of this Service Agreement and all matters arising from the Services confidential.

2. A party may make any disclosure in relation to this Service Agreement:

1. to a professional adviser, financial adviser, banker, financier or auditor if that person is obliged to keep the information disclosed confidential;

2. to comply with the law, or a requirement of a regulatory body (including any relevant stock exchange or taxing authority);

3. to any of its employees to whom it is necessary to disclose the information;

4. to obtain the consent of a third party to a term of, or to an act under, this Service Agreement;

5. to enforce its rights or to defend a claim or action under this Service Agreement;

6. to a related body corporate, on receipt of its undertaking to keep the information disclosed confidential; or

7. if the information disclosed has come into the public domain through no fault of the party making the disclosure.

13.  Notices

Unless expressly stated otherwise, notices are sufficiently given if:

1. served personally;

2. sent by prepaid post to, or left at, the relevant party’s address specified in this Service Agreement; or

3. sent by email to the relevant party’s email address specified in this Service Agreement.

Notices served by prepaid post will be deemed to be received two (2) clear Business Days after posting. Emails sent after 5.00pm on a Business Day or on a day which is not a Business Day will be deemed to be received at 8.30am (AWST) on the next Business Day.

14.  General Provisions

If anything in this Service Agreement is unenforceable, illegal or void, or makes this Service Agreement or any part of it unenforceable, illegal or void, then it is severed and the rest of this Service Agreement will remain in force.

This Service Agreement:

1. is the entire agreement and understanding between the parties on everything connected with the subject matter of this Service Agreement; and

2. supersedes any prior agreement or understanding on anything connected with that subject matter.

The Parties acknowledge that no reliance has been placed on any prior agreement, understanding or representation.

 

6.  Interest

The Client must pay to the Company interest on all overdue sums payable under this Service Agreement at the rate of 12% per annum, calculated from and including the relevant due for payment up to and including the final date of payment in full.

7.  Suspension of Services

The Company may immediately and without liability suspend provision of the Services if the Client fails to:

1. comply with any of the Client’s obligations under this Service Agreement and such failure is not remedied within 2 Business Days of written notice being given to the Client; or

2. pay, or cause to be paid, any money due and payable from the Client to the Company under this Service Agreement or under any other agreement between the Company and the Client.

The Client must indemnify, and keep indemnified, the Company for all loss, damage, costs and expenses arising from any suspension of the Services pursuant to this clause, including but not limited to legal costs on a full indemnity basis.

8.  Security

The Client:

1. irrevocably charges in favour of the Company all of the Client’s right, title and interest in all personal property and real property that the Client now holds or may acquire in the future with the due payment to the Company of all money that may become due and payable to the Company pursuant to this Service Agreement; and

2. irrevocably authorises the Company to lodge, and consents to the Company lodging, an absolute caveat over all real property charged by this clause to secure the Company’s interests under this Agreement.

9.  Liability and Indemnity

The Client must indemnify, and keep indemnified, the Company from and against any liability, loss, damage, cost or expense (including, but not limited to, legal costs on a full indemnity basis) whatsoever and howsoever, whether directly or indirectly, and whether or not foreseeable, suffered or incurred by the Company in respect of or in relation to or in connection with:

1. any negligent act or omission of any one or more of the Client and the Client’s Representatives;

2. any breach of this Service Agreement or any law by any one or more of the Client and the Client’s Representatives; and

3. any act or omission of any one or more of the Client and the Client’s Representatives which may or does place the Company in breach of any law, government consent or contract the Company has with another party.

The Company’s aggregate liability in contract, tort or otherwise (including negligence), howsoever arising out of or in connection with this Service Agreement will be limited to the Fees invoiced to and paid for by the Client pursuant to this Service Agreement.

Notwithstanding any other provision of this Service Agreement, the Company will not be liable to the Client for any Consequential Loss related to, connected with or arising out of this Service Agreement, howsoever arising.

10.  Assignment and Subcontracting

The Client must not assign or subcontract the whole or any part of this Service Agreement without the Company’s prior written consent, which may be given or withheld at the Company’s absolute discretion.

The Company may assign or subcontract the whole or any part of its rights and obligations under this Service Agreement at its absolute discretion.

11.  Default and Termination

The Company may terminate this Service Agreement with immediate effect by either written or oral notice to any one or more of the Client and the Client’s Representatives if the Client fails to:

 

 

A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.  A waiver is not effective unless it is in writing.

Headings in this Service Agreement are for ease of reference only and do not affect the interpretation of this Service Agreement.

A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Service Agreement or any part of it.

15.  Disclosure and Acknowledgement Regarding Commissions

Where the Client is referred by the Company to a third party service provider (TPSP), the Company may receive a referral fee from the TPSP under a separate agreement the Company has with the TPSP.

16.  Privacy

The Client acknowledges and agrees that:

1. the Company may retain and utilise the Client’s personal information and details for the purpose of informing the Client about services that may be available to the Client;

2. the Company and the Company’s related entities and affiliates may contact the Client from time to time for the purpose of marketing services which the Company and the Company’s related entities and affiliates may be able to provide; and

3. the Company may provide the Client’s personal information and details to one or more third party service provider/s which the Company considers, in its absolute discretion, may be of benefit to the Client.

17.  Governing Law

This Service Agreement will be governed by and must be construed according to the laws of Western Australia.

18.  Definitions

Appendix means the appendix to this Service Agreement.

Business Day means any day which is not a Saturday, Sunday or public holiday in Western Australia.

Client’s Representatives means the Client’s employees, agents, contractors, customers, licensees or visitors or anyone acting on the Client’s behalf or under the Client’s control in the performance of this Service Agreement.

Consequential Loss means:

1. in the case of loss or damage resulting from a breach of contract: indirect, remote or unforeseeable loss; loss of profits; loss of revenue; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation, future reputation or publicity; damage to credit rating; loss of use; or any similar loss occasioned by that breach, whether or not in the reasonable contemplation of parties at the time of execution of this Service Agreement as being a probable result of the relevant breach; and

2. in the case of loss or damage arising from any tort (including negligence) - indirect, remote or unforeseeable loss and, in the case of pure economic loss, both loss flowing directly and loss not flowing directly from the commission of the tort.