1 Introduction
1.1 These are the basic terms and conditions (Terms) upon which SANO does business. The Terms together with SANO’s written proposal (Proposal) (together Agreement) will apply to all work SANO undertakes for the Client with respect to the Proposal. If there is any conflict between these Terms and the Proposal, then the Proposal shall prevail.
1.2 The Terms and the Proposal apply in the absence of any written and signed agreement between the parties and they may only be varied in writing signed by both parties.
1.2.1 SANO means SANO Health Pty Ltd (ABN 81 160 846 748).
1.2.2 Associates, in relation to SANO, means SANO and each of its related bodies corporate within the meaning of Section 50 of the Corporations Act 2001 (Cth), and each of their respective directors, officers, contractors, agents and employees, and Associates in relation to the Client has the equivalent meaning.
1.2.3 Client means the person identified by their full legal name and ABN in the attached Acceptance.
2 Services
2.1 SANO will supply the services set out in the Proposal (Services).
2.2 In providing the Services, SANO will:
2.2.1 use all reasonable commercial efforts to complete the Services in a timely and efficient manner; and
2.2.2 take reasonable care in accordance with standards ordinarily exercised by members of the profession generally who provide similar services in the same locality and under similar conditions. SANO shall not be liable in respect of any failure to exercise a degree or level of care beyond such reasonable care.
2.3 SANO will undertake the provision of the Services in the manner that it considers most appropriate.
3 The Client’s Commitment
3.1 The Client agrees to pay for the Services in accordance with the Agreement.
3.2 The Client must not rely on any oral, draft or interim advice, reports or presentations. If the Client wishes to rely on oral advice or an oral presentation, it must inform SANO and SANO may then provide written advice.
3.3 Written advice by SANO shall take precedence over any oral advice, reports or presentations to you. SANO’s final written report shall take precedence over any draft or interim reports or presentations to you.
3.4 The Client accepts responsibility for its use of, or reliance on, advice or recommendations supplied by SANO in the delivery of the Services.
3.5 The Client accepts responsibility for any problems or issues that may develop if any recommendations made by SANO in connection with the Services are not carried out, or are partially carried out without further advice being obtained from SANO.
3.6 The Client must promptly provide SANO with such information, records, procedures, technology, systems and access to its relevant staff members and premises as may reasonably be required for the proper completion of the Services.
3.7 SANO shall be entitled to rely upon the accuracy of all information provided by the Client, or others on its behalf, without independently verifying it.
3.8 If, after the Client or any of its representatives provide information to SANO, anything happens to render such information untrue, unfair or misleading, or the Client becomes aware that it is untrue, unfair or misleading, the Client must promptly notify SANO and, if required by it, take all necessary steps to correct any instruction, announcement, communication, or document issued which contains, refers to or is based upon such information.
4 Confidentiality
4.1 Both parties acknowledge that they may, in the course of engagement, be exposed to or acquire information that is proprietary or confidential to the other party. Both parties agree to hold such information in strict confidence, and not to divulge such information except as may be required by law or by any persons or bodies responsible for regulating that party’s business or their other respective professional advisers or lenders on a confidential “need-to-know” basis.
4.2 Not withstanding any other provision of this Agreement or any other document relating in any way to the completion of the Services, SANO is entitled to retain a copy of all material information upon which any report or recommendation provided in the course of the Services is based.
4.3 Any advice or report prepared by SANO and its contents are confidential and may not be disclosed or published to a third party in any manner (except as required by law) unless SANO has given prior written consent to the form and context of the disclosure or publication and to the identity of the person(s) to whom it is to be disclosed or published. For the avoidance of doubt, the Client can disclose any advice or report or its contents to its employees, officers, agents, advisers or consultants.
5 Staff
5.1 Both parties agree that during the performance of the Services, and for a period of six months after the Services are completed, they will not make any offer of employment to an employee of the other party involved in the Services, without the other party’s prior written consent.
6 Intellectual Property
6.1 SANO shall retain copyright in all documents produced by SANO. If, in completing the Services, SANO develops any intellectual property, rights to that intellectual property will remain with SANO.
6.2 Ownership of pre-existing intellectual property rights related to the supply of Services shall remain with SANO or with any third party owner, as the case may be.
6.3 Subject to the payment in full by the Client of amounts payable to SANO under the Agreement:
6.3.1 SANO grants to the Client a royalty-free and non-exclusive licence to use the goods and services in which the IP is owned by SANO for the purpose of obtaining the benefit of the Supply; and
6.3.2 Where the supply of Services includes access to intellectual property rights belonging to a third party, SANO:
- grants to the Client, and shall do all things necessary to ensure that the Client is granted, a royalty-free and non-exclusive licence to use the third party intellectual property rights for the purpose of obtaining the benefit of the Services; and
- warrants that it has the right to grant the licence and that the Client’s use of the intellectual property rights under and for the purposes of the Agreement will not infringe the intellectual property rights of any third party.
6.4 These licences shall be for the period agreed by the parties in writing or, if no such period is agreed, shall be perpetual.
7 Insurances
7.1 SANO and its Associates must (at their own cost) effect the following insurance policies (or other cover):
7.1.1 professional indemnity or errors and omissions insurance (however described) with a limit of indemnity not less than $10 million for each occurrence and in the aggregate in respect of legal liability arising from a breach of duty owed in a professional capacity (whether owed in contract or otherwise) by SANO, its Associates or any of its personnel. The definition of “profession” in this insurance policy must be wide enough to cover all professional advice to be provided by SANO or its Associates in performing its obligations, or in relation to the exercise of its rights, under this Agreement or by SANO’s personnel in providing the Services;
7.1.2 workers compensation insurance or similar cover (howsoever described), which provides coverage in accordance with all relevant statutory requirements in which SANO or a related body corporate, perform work in connection with this Agreement; and
7.1.3 motor vehicle insurance.
7.2 SANO and its Associates must maintain all insurances required under clause 7.1 until the later of the date on which SANO has performed all of the Services or termination of this Agreement.
8 Fees, Expenses and Payment Terms
8.1 SANO’s professional fees for all time spent on the provision of the Services, including reasonable travel time, will be charged on the basis of a schedule of time-based rates unless otherwise stated in the Proposal. The time-based rates quoted in the Proposal will remain in force for the duration of the Services. SANO may increase its fees for any additional work.
8.2 Expenses such as airfares, accommodation or special insurances incurred by SANO or its staff in the course of, or attributable to, the Services will be charged at cost plus a service fee of 10% unless paid directly by the Client or as otherwise negotiated and agreed in writing.
8.3 Amounts invoiced are based on actual hours/days and expenses incurred performing the Services. If an estimate is provided in advance, this should not be construed as a lump-sum or fixed price quotation unless this is explicitly stated in the Proposal. If an estimate is likely to be exceeded for any reason, SANO will seek approval to proceed before significantly exceeding the estimate.
8.4 SANO’s fees and rates are exclusive of all taxes and government charges (including withholding tax) unless otherwise stated.
8.5 At SANO’s discretion, interest may be charged on the daily balance of overdue accounts at the maximum overdraft rate of the National Australia Bank, plus 1.5%, without relieving the Client of its obligation to pay the account.
8.6 The Client must pay to SANO all due amounts on or before the due date. Progress invoices will be issued at monthly intervals and payment in full of each invoice is due by the 30th day of the month after the date of invoice. SANO is entitled to withhold signature of final reports while payments remain outstanding.
8.7 While any fees or reimbursement of expenses due to SANO are outstanding:
8.7.1 SANO may refuse to provide its consent to the publication of any such document, report or advice; and
8.7.2 SANO may require the return to it of all copies of any such document, report or advice and any part of them in the possession of the Client or its associates.
9 GST
9.1 Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in clauses concerning GST.
9.2 In addition to paying or providing the fees and rates shown above for all goods and services, the Client must:
9.2.1 pay to SANO an amount equal to any GST for which SANO is liable on any supply by the supplier under or in connection with this Agreement, without deduction or set-off of any other amount; and
9.2.2 make that payment as and when the fees or rates or part of them must be paid or provided, except that the Client need not pay unless it has received a tax invoice (or an adjustment note) for that supply.
9.3 SANO must promptly create an adjustment note for, or apply to the Commissioner for, a refund of, and must refund to the Client any overpayment by it for GST, but SANO need not refund to the Client any amount for GST paid to the Commissioner of Taxation unless the supplier is entitled to a refund or credit of that amount.
9.4 If the Services are delivered outside of Australia and attract government taxes upon goods and services in another jurisdiction, all clauses dealing with GST shall apply mutatis mutandis as if the legislation in that other jurisdiction were referred to in this Agreement rather than the Australian legislation.
10 Complaints and Disputes
10.1 If at any time the Client has a complaint, it should contact the General Manager or a director of SANO. SANO will investigate any complaint promptly and do what it can to resolve any difficulties.
10.2 If the problem cannot be resolved informally, the parties agree to enter into mediation, or some form of alternate dispute resolution, before commencing legal proceedings.
10.3 In the event of a dispute, or where fees remain unpaid beyond the due date, SANO may suspend the Services until such time as the dispute is resolved or the fees are paid. Suspension of the Services will not affect the Client’s obligation to pay SANO for Services rendered to the date of suspension.
11 Termination
11.1 A party may terminate the Agreement immediately if:
11.1.1 The other party commits any material or persistent breach of its obligations under the Agreement, and, in the case of a breach capable of remedy, the breach has not been remedied within 14 days of receipt by the party in breach of a notice identifying the breach and requiring its remedy; or
11.1. 2 The other party becomes insolvent, any steps are taken in relation to it in order to wind it up or a person is appointed in respect of the whole or any part of its assets in order to enforce any security; or
11.1.3 The Services are suspended under clause 10.3 for more than 10 working days.
11.2 A party may terminate the Agreement by 30 days’ written notice served on the other party. Termination under this clause shall be without prejudice to any rights that may have accrued for either party before termination and all sums due to SANO shall become payable in full when the termination takes effect.
11.3 Clauses 3.2, 3.5, 3.8, 4, 5, 6, 10, 12, 14 and 15 shall survive termination of the Agreement.
12 Limitation of Liability
12.1 Both parties accept that the limitations and exclusions in this Agreement are fair and reasonable, in light of the Proposal, the sums to which SANO is entitled and the availability and cost of insurance.
12.2 Nothing in the Agreement excludes, restricts or modifies the application of the provisions of any statute (including the Competition and Consumer Act 2010) where to do so would be ineffective under that statute or cause any part of the Agreement to be void.
12.3 Neither party is liable to the other party in respect of any loss of business, loss of contract, loss of profit or indirect costs, losses or damages, however arising and whether an action in contract, in tort (including negligence), under statute or on any other basis in law or equity which may be suffered or incurred by the other party in connection with the Services or this Agreement.
12.4 The aggregate liability of SANO and its Associates for any loss or damage suffered by the Client and its associates in connection with SANO’s engagement or in any way arising out of the performance of the Services, including (without limitation) liability for any negligent act or omission or misrepresentation, shall be limited to the amount stated in the Proposal, or if nothing is stated to AUD 100,000, and the Client agrees to release each of SANO and its Associates from all claims arising in connection with the Services to the extent that the aggregate liability of SANO and its Associates in respect of such claims would exceed that amount.
12.5 Clause 12.4 does not apply to limit or restrict in any way SANO and its Associates’ liability to the extent that the liability:
12.5.1 arises out of or in connection with any injury to or death of any person; or
12.5.2 is caused by a fraudulent or criminal act of SANO and its Associates.
13 Force Majeure
13.1 If the performance of the Agreement by a party is prevented or restricted by reason of fire, storm, flood, earthquake, war, terrorism, labour dispute, transportation embargo, law, order, or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use their best efforts to avoid or remove the causes of non-performance and to cure and complete performance as soon as possible.
14 Variation
14.1 No variation of this Agreement will be valid unless confirmed in writing by authorised signatories of both parties on or after the date of signature of the Agreement.
15 Governing Law and Jurisdiction
15.1 This Agreement and all aspects of SANO’s engagement and performance of the Services are governed by, and construed in accordance with, the laws applicable in the State of Victoria. Both parties agree irrevocably to submit any disputes arising under this Agreement to the exclusive jurisdiction of the courts of that State.