CLIENT TERMS
Client Terms
These Client Terms, together with any Purchase Order (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which MPS PEOPLE SECURITY RISK MANAGEMENT PTY LTD ABN 42 677 980 102 (‘Service Provider’) provides Services (defined in clause 2) to you or the company which you represent (the ‘Client’).
- CLIENT FORM, THIS AGREEMENT
(a) These Client Terms will apply to all the Client’s dealings with the Service Provider, including being incorporated in all agreements, quotations or orders under which the Service Provider is to provide services to the Client (each a ‘Purchase Order’) together with any additional terms included in such Purchase Order (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement if the Client accepts a Purchase Order, or if the Client orders, accepts or pays for any services provided by the Service Provider after receiving or becoming aware of this Agreement or these Client Terms.
(c) In the event of any inconsistency between these Client Terms and any Purchase Order, the clauses of these Client Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Purchase Order) will prevail over these Client Terms to the extent of any inconsistency. - SERVICES
(a) In consideration for the payment of the fees set out in a Purchase Order (Fees), the Service Provider will provide the Client with the services set out in a Purchase Order (Services).
(b) Some clauses of this Agreement will not be relevant to all Clients and clauses and Services are only relevant as applicable to the particular Services the Client is engaging the Service Provider for. If a Client signs up as an individual, some clauses in this Agreement will not apply.
(c) The Service Provider will provide the Services during the Work Times or Online Training Times set out in a Purchase Order, and for any additional hours agreed in writing by the parties.
(d) To the extent permitted by law, for any online Services, Clients, or Participants (defined below) that have accessed online Services for a period of at least 24 hours are not entitled to a refund.
(e) Unless otherwise agreed in writing, the Service Provider may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
(ii) withhold delivery of Services until the Client has paid an invoice in respect of any Services, including invoices for previous Services that have already been provided. - DISCLAIMERS – NO LEGAL OR FINANCIAL ADVICE, NO GUARANTEED OUTCOME
3.1 ACCURACY
(a) The Service Provider makes every effort to ensure the information/advice contained in the Services and any other materials is accurate and up-to-date but there may be some circumstances where this information is not 100% accurate.
3.2 NO GUARANTEED OUTCOME
(a) All information provided as part of the Services is an opinion only, based on the Service Provider’s experience.
(b) The Service Provider does not guarantee any particular outcome, or any particular decision from any authority on any issue, if the Client relies on the Services.
(c) Any advice provided through the Services, are recommendations only and the Client must the Services and the advice are fit for their purposes.
(d) Conditions or the internal or external environment may change over time and the Client must take this into account when considering whether the Services are fit for purpose.
3.3 COMPLIANCE OBLIGATIONS
(a) Whilst some Services may be used to meet the Client’s compliance obligations, the Service Provider is not responsible for the Client meeting these obligations and will not be held liable for the Client not meeting compliance obligations to the Australian Government or other regulating bodies.
3.4 STOCK IMAGES AND ARTIFICIAL INTELLIGENCE (AI)
(a) The Service Provider uses Stock images/ stock footage and AI to develop and deliver some of the Services and in its marketing material. The Services may not contain real people and real circumstances.
3.5 NO LEGAL OR FINANCIAL ADVICE
(a) All information provided by the Service Provider as part of the Services is general information.
(b) This information is based on information you provide to the Service Provider.
(c) No information provided as part of the Services is intended to be legal or financial advice of any kind and it should not be relied on as such.
(d) You should obtain specific financial, legal or other professional advice before relying on the Services. By not seeking such advice, you accept the risk that the information provided as part of the Services may not meet the specific needs of your business.
3.6 THIRD PARTY SERVICES
(a) The Services use third party services, and as set out in clause 11. Whilst the Service Provider uses its best endeavours to ensure that all third parties comply with this agreement and protect any Client Materials and client data, the Service Provider does not have direct control over anything that a third party does.
(b) The Client acknowledges and agrees that the Service Provider cannot be held liable for any act or lack of action performed by a third party that is outside the control of the Service Provider. - CLIENT OBLIGATIONS
4.1 PROVIDE INFORMATION AND LIAISON
(a) The Client must provide the Service Provider with all documentation, information and assistance reasonably required for the Service Provider to perform the Services including information on their circumstances or environment.
(b) The Client agrees to liaise with the Service Provider as it reasonably requests for the purpose of enabling the Service Provider to provide the Services.
4.2 INTERNET ACCESS
(a) For the Services, particularly any online Services, the Client must ensure that it, and any Participant (defined below) has internet access to be able to access the Services.
4.3 ACCESS
(a) The Client must allow the Service Provider access to any premises, or required areas of any premises reasonably necessary for the Service Provider to provide the Services (Premises).
(b) The Client must obtain any authority or approval (including strata or building management approval if applicable) for the Service Provider that is reasonably necessary for the Service Provider to provide the Services.
(c) The Client must conduct or facilitate any inductions, training or supervision or other requirements of the Premises, including anything referred to in Special Conditions of a Purchase Order, so that the Service Provider has full access to carry out the Services.
(d) Where the Service Provider is unable to gain access to the Premises due to the Client’s non-compliance with this clause, omission, fault or otherwise, it is the Client’s responsibility to reschedule any Services and the Service Provider reserves the right to claim any expenses including travel and lost income and to charge this to the Client as a expense under this Agreement.
(e) The Client warrants that the Premises are safe for the Service Provider to enter and perform the Services including, where applicable, complying with any relevant occupational health and safety legislation and requirements.
4.4 COMPLIANCE WITH LAWS
The Client warrants that it will not by receiving or requesting the Services, or during receiving or requesting the Services, or otherwise during any Project Period:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws and any relevant industry codes) (Laws);
(b) do anything which may cause the Service Provider to breach any Law;
(c) breach the direction of any government department or authority; or
(d) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.
4.5 SERVICE PROVIDER AND THIRD PARTY IP
All undefined terms in this clause are defined below in clause 14.
(a) All Material contained in the Services is owned by the Service Provider, or a third party. The Client must not copy or distribute any Material, and must ensure that Participants (defined below) do not copy or distribute any Material. The Client must not use Services outside of the purposes contemplated by this agreement and must ensure every individual who accesses the Services is paid for and authorised to use the Services.
(b) The Client must request written permission from the Service Provider to share, copy or otherwise distribute any Service Provider IP, including any marketing material or any Material used in the Services.
(c) The Client must also ensure that it does not, knowingly or unknowingly permit any third party to download, share, copy, distribute or otherwise use any Service Provider IP including any slogans, marketing jingles, messages, content from the Service Provider’s website, brochures, books or social media channels or through any Services provided to Clients.
(d) The Services may contain Third Party Material and Third Party IP including from the Service Provider’s partners. The Client must ensure that it complies with all aspects of this clause regarding any Third Party IP. - RESPONSIBILITY FOR PARTICIPANTS, PERSONNEL AND AUTHORISED USERS
5.1 PARTICIPANTS – AUTHORISED USERS
(a) The Client is responsible for all users who access the Services on their behalf, including students or participants of any course, employees and contractors (Participants) and must ensure that anyone who accesses the Services are authorised to do so.
(b) It is the Client’s responsibility to manage Participant enrolments. If a Participant misses completing any of the Services by any required deadline (within the timeframe provided) a late fee will be applied if the access to the Services must be extended.
(c) The Client must ensure that all Participants attend, access, log-in and complete any Services, particularly online training provided by the Service Provider.
(d) The Service Provider will not be responsible or held liable if Participants do not access any of the Services within the designated timeframe, including the Online Training Times.
5.2 ASSUMPTION OF RESPONSIBILITY
(a) The Client is responsible for all acts of its Participants and for ensuring all acts of its Participants comply with this agreement, particularly in relation to dealing with Intellectual Property Rights and Third Party IP.
(b) The Client must ensure that any Participants are bound by similar terms as contained in this agreement.
5.3 PARTICIPANT REQUIREMENTS
(a) The Client must ensure that all Participants meet the following requirement:
(i) Participants must ensure that they personally complete any course material and exams, etc. offered as part of the Services. Participants are not permitted to allow others to complete any materials for them or to share any login details or course materials.
(ii) All Participants must acknowledge that all work is their own work.
(iii) Participants are responsible for accessing IT support through the Service Provider’s support channel if they are unable to access the Services. Details of the Service Provider’s support channel will be available on the Service Provider’s website or otherwise provided to the Client.
5.4 INDEMNITY
The Client agrees at all times to indemnify and hold harmless the Service Provider and its officers, employees, agents and contractors (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s Participants, including for any breach, or loss of this clause. - CLIENT MATERIALS
6.1 CLIENT MATERIALS
The Client warrants that all information, documentation and other Material (defined in clause 13) it provides to the Service Provider for the purpose of receiving the Services, including business processes, documents, polices and security practices, financial records and information regarding its systems, procedures and all other materials relating to compliance, and other documentation relating to existing standards, compliance or certifications is complete, accurate and up-to-date.
Please include business processes, documents, polices and security practices. And other documentation relating to existing standards, compliance or certifications.
6.2 RELEASE
The Client releases the Service Provider from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by the Client being incomplete, inaccurate or out-of-date. - TIMING
(a) In the course of the Service Provider performing the Services, the parties may agree a schedule for providing Services including training, including estimated dates of completion, deadlines or schedules (Schedules). The timing for access to the online training portal may also be outlined in the Purchase Order including Online Training Times, if applicable (also Schedules).
(b) The Service Provider will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, the Service Provider will use its best efforts to minimise the impact of such changes.
(c) The Service Provider reserves the right to revise Schedules in the event that a delay is caused by the Client’s failure to provide timely feedback or other information or Materials reasonably requested by the Service Provider in order to perform the Services. - PAYMENT
8.1 FEES
The Client must pay to the Service Provider fees in the amounts and at the times set out in a Purchase Order or as otherwise agreed in writing.
8.2 TIME FOR PAYMENT
Unless otherwise agreed in a Purchase Order or in writing:
(a) if the Service Provider issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for goods and services within 3 days of receiving an invoice for amounts payable.
8.3 PAYMENT METHOD
The Client must pay Fees using the fee payment method specified in a Purchase Order.
8.4 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, internet access, media and related expenses reasonably incurred by the Service Provider in connection with the Services or a Purchase Order; and
(b) any third-party costs incurred by the Service Provider in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in a Purchase Order.
8.5 LATE PAYMENT
If the Client fails to pay any amounts due to the Service Provider under an invoice by the specified due date, the Service Provider retains the right, without limiting any other rights under this Agreement, to charge the Client interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, the Service Provider will provide the Client with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Service Provider.
8.6 GST
Unless otherwise indicated, amounts stated in a Purchase Order do not include GST. In relation to any GST payable for a taxable supply by the Service Provider, the Client must pay the GST subject to the Service Provider providing a tax invoice.
8.7 CARD SURCHARGES
The Service Provider reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
8.8 REFUNDS
(a) To the maximum extent permitted by law, the Service Provider generally does not offer refunds as the Services, including where applicable where the Services are delivered online and/or are immediate.
(b) However if Participants are unable to attend any Services such as face-to-face training due to a medical reason and provide a medical certificate they may register to attend the training at a mutually agreed future date. - CHANGES
(a) The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Purchase Order (Changes).
(b) Unless otherwise agreed in writing, the Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes. - ACCREDITATIONS
Unless otherwise agreed in writing:
(a) all displays or publications of any deliverables provided to the Client as part of the Services must, if requested by the Service Provider, bear an accreditation and/or a copyright notice including the Service Provider’s and/or third party collaborator/partner’s name in the form, size and location as directed by the Service Provider; and
(b) the Service Provider retains the right to describe the Services and reproduce, publish and display the deliverables in the Service Provider’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services and deliverables in connection with such uses. - THIRD PARTY GOODS AND SERVICES
(a) If the Service Provider is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) Provided that the Service Provider has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or the Service Provider acquires as part of providing the goods or services and the Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, the Service Provider cannot provide the Services to the Client and clause 18 will apply.
11.2 REFERRAL FEES
The Service Provider may receive paid referral fees from third parties, and may receive an income from social media promotions such as YouTube - CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.
(b) This clause 12 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by the Service Provider to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement. - PRIVACY AND SHARING OF INFORMATION
(a) The Service Provider will collect feedback and course evaluation surveys as part of the Services. The Client consents, and must ensure the consent of any Participants for the Service Provider to share this material for promotional purposes and marketing.
(b) The Service Provider works with many third parties to provide the Services. The Client acknowledges and agrees that the Service Provider may share any Client Material and details with these third parties for the purposes of providing the Services. The Client must ensure any Participant consent required for the sharing of this information is obtained and the Client will indemnify the Service Provider for any losses or damages caused by breach of this clause.
(c) The Client agrees to the terms of the Service Provider’s privacy policy available here: MPS Privacy Policy - INTELLECTUAL PROPERTY
14.1 CLIENT CONTENT
(a) The Client grants to the Service Provider (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
(b) The Client:
(i) warrants that the Service Provider’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
(ii) will indemnify the Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
14.2 DEVELOPED IP
(a) All Developed IP will be solely and exclusively owned by the Service Provider.
(b) The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services.
14.3 SERVICE PROVIDER AND THIRD PARTY IP
(a) The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Service Provider IP and any applicable Third Party IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services.
(b) Unless otherwise agreed in writing by the Service Provider or in this clause 14.3, the Client will not acquire Intellectual Property Rights in any Service Provider IP or any Third Party IP under this Agreement or as part of receiving the Services.
14.4 DEFINITIONS
For the purposes of this Agreement:
(a) “Client Content” means any Material supplied by the Client to the Service Provider under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
(b) “Service Provider IP” means all Material owned or licensed by the Service Provider that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(c) “Developed IP” means the Material produced by the Service Provider in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material.
(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.
(e) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
(f) “Third Party IP” means all Material owned or licensed by a third party to the Service Provider for the purposes of providing the Services, that is not Developed IP and any Intellectual Property Rights attaching to that Material. - WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided. - LIABILITY
16.1 LIABILITY
(a) To the maximum extent permitted by law and subject to clause 16.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to the Service Provider under the most recent Purchase Order.
(b) Clause 16.1(a) does not apply to the Client’s liability in respect of loss or damage sustained by the Service Provider arising from the Client’s breach of:
(i) breach of third party intellectual property rights;
(ii) the Client’s obligations set out in clause 4; or
(iii) clause 5.
16.2 CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by the Service Provider, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth). - SUBCONTRACTING
The Service Provider may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting. - TERMINATION
18.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing notice to the other party.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) On the End Date, the Service Provider will provide an invoice to the Client for:
(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs the Service Provider has incurred on the Client’s behalf up to the End Date; and
(iii) if terminated by the Client, the Service Provider’s pre-estimated genuine losses as a result of the Client ending this agreement, being any costs for Services already performed including any courses or course material already paid for or ordered by the Client, (together, the Outstanding Amounts)
(d) The Client will pay the Outstanding Amounts to the Service Provider on the End Date, unless otherwise agreed in a written payment plan between the parties.
(e) Once the Outstanding Amounts have been paid, the Service Provider will hand over any completed deliverables.
(f) If the Service Provider terminates this agreement pursuant to this clause, the Service Provider will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
18.2 TERMINATION FOR BREACH
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement including clauses 4, 5, 8.1, 12 and 14 (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 18. The indemnities, warranties and liability caps in clause 16 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 18.1 will not limit or otherwise effect the Service Provider’s rights under this agreement, at law or otherwise in equity; the Service Provider’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
18.3 OTHER CONSEQUENCES FOR TERMINATION
if this agreement ends, in addition to the specific consequences set out in clause 18.1 or 18.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation clauses 5.4, 12, 14 and 16; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 13. - IF THE PARTIES HAVE A DISPUTE
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c)The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction. - NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in a Purchase Order and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received. - FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 21(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation. - GENERAL
22.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in the Australian Capital Territory, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of the Australian Capital Territory, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
22.2 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
22.3 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties
22.4 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
22.5 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
22.6 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
22.7 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
22.8 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
22.9 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
22.10 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
22.11 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed upon in writing.