Terms and Conditions of Engagement

These Terms and Conditions of Agreement (Terms) govern the relationship between you (the Client) and Zaina Stacey Pty Ltd ABN 15 149 389 855 (Zaina Stacey) with regard to any and all services as described in any sales quote, estimate, sales order, sales agreement or similar document (the Estimate).

THE PARTIES AGREE as follows:

1. INTERPRETATION
   • Definitions

The following definitions will apply in this Agreement (unless the context expressly indicates otherwise):

Agreement is made up of these Terms and the Estimate (including all schedules, annexures and attachments)

Business Day is a day (not Saturday or Sunday) that trading banks are open for business in Adelaide, South Australia, Australia.

Cancellation Fees means the fees outlined in an Estimate payable by the Client if the Client wishes to cancel (or otherwise terminate) an Estimate.

Claim means any demands, claims, proceedings, penalties, fines, loss and liability (whether criminal or civil, in contract, tort or otherwise).

Client refers to the individual or entity entering into this Agreement with Zaina Stacey.

Client’s IP is all IP owned by the Client and includes all IP in the Data.

Commencement Date means the date Zaina Stacey is to start providing the Services, as outlined in an Estimate (if any); or if no such date is specified, then the date that the Estimate is issued; or such other date as the Parties may agree in writing.

Confidential Information of a party is all technical, financial, commercial and other information (in whatever medium) of or relating to it or its business affairs, which is disclosed or available to, or observed or accessible by, the other party in connection with this Agreement which:

(a)  is marked as ‘confidential’, ‘sensitive’, ‘private’ or any other similar description; or

(b)  a reasonable person would (given its nature) consider confidential,

but excluding information that:

(c)   is readily available in the public domain without breach of confidentiality; or

(d)  the receiving party can establish by written records is or has been legally known to, developed by, or acquired by, that receiving party, independently of this Agreement.

Data is all information provided by the Client so Zaina Stacey can supply the Services, or otherwise transmitted, received, stored, processed, generated, compiled, or modified through use, or in connection with the provision of the Services.

Developed IP is all IP created, written or otherwise brought into existence by or on behalf of Zaina Stacey in connection with or for the purposes of providing the Services or meeting its other obligations under this Agreement (but excluding Zaina Stacey’s IP).

Fees are the fees and/or charges payable by the Client under an Estimate.

Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including, but not limited to, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, epidemic or pandemic (not including COVID-19), terrorist attacks and wars).

GST means Goods and Services Tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvent is an entity being insolvent (under section 95A of the Corporations Act 2001 (Cth)); having an administrator, controller (per section 9 of the Corporations Act) or similar officer appointed to all or any of its property; having taken (or had taken against it) any step for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors; or suffering any event or similar event to those set out in this definition which would restrict its business operations or cause those operations to be placed under the control of a person other than its directors under the laws of its place of incorporation.

Intellectual Property or IP means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

Moral Right is a right: (a) of attribution of authorship; (b) not to have authorship falsely attributed; (c) of integrity of authorship; or (d) any similar right.

Parties means Zaina Stacey and the Client, and Party means either one of them.

Personal Information is information or an opinion about an identified or reasonable identifiable natural person (whether true or not), including personal information as defined in the Privacy Act 1988 (Cth), collected or generated by, disclosed to, or accessed by Zaina Stacey in connection with this Agreement.

Personnel are directors, officers, employees, professional advisers, agents or authorised subcontractors of a Party (but the Personnel of the Client does not include Zaina Stacey).

Privacy Policy means Zaina Stacey’s privacy policy, which can be found at https://zainastacey.com.au/privacy-policy/.

Estimate is a sales quote, estimate, sales order, sales agreement or similar document agreed by the Parties, setting out the scope, details, and requirements for the Services to be supplied by Zaina Stacey under this Agreement from time to time.

Services means the services provided by Zaina Stacey as outlined in more detail in an Estimate.

Tax includes:

• any tax, levy, impost, deduction, charge, rate, withholding or duty by whatever name called levied, imposed or assessed (including, without limitation, withholding tax, employment taxes, land tax, property tax, excise duties, customs duties, goods and services tax, value added tax, sales tax, consumption taxes (i.e. GST), stamp duty and transaction duties or any similar impost imposed or levied); and
• any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above

Terms means these terms and conditions, as amended from time to time.

Zaina Stacey’s IP is all present and future IP created, written or otherwise brought into existence by or on behalf of Zaina Stacey completely independently of the performance of Zaina Stacey’s obligations under this Agreement; but does not include any such IP which the Parties expressly agree in an Estimate will be assigned to the Client.

• Interpretation

In this Agreement unless the context otherwise requires:

• words importing any gender include every gender;
• words importing the singular number include the plural number and vice versa;
• words importing persons include firms, companies and corporations and vice versa;
• references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
• reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
• any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
• the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
• any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
• the word “including” (and related forms including “includes”) means “including without limitation”;
• a reference to $ or dollars is to Australian dollars; and
• something due to be done on or by a non-Business Day must be done on or by the next Business Day.

• Joint and several obligations

If the Client consists of one or more parties, the terms of the Agreement will bind each of those parties jointly and severally.

• Notice in writing

Where an action of a Party is required to be evidenced in writing under this Agreement (for example, the provision of a Party’s consent or approval, etc), the Parties acknowledge and agree that email communication will satisfy such requirement for the action to be in writing.

• Precedence

Unless expressly stated otherwise, the terms contained in these Terms shall prevail over those contained in an Estimate to the extent of the inconsistency.

2. TERM AND TERMINATION
   • Period of Agreement

This Agreement will begin on the Commencement Date and continue until the Services have been delivered by Zaina Stacey, unless terminated earlier in accordance with this Agreement.

• Termination

A Party may terminate this Agreement (in whole or with respect to particular Estimates only) with immediate effect by written notice to the other Party if the other Party:

• commits a material breach of this Agreement, which is not remediable;
• commits a material breach of this Agreement, which is capable of remedy, but is not remedied within 30 days after being required by notice to do so; or
• becomes Insolvent.

• Consequences of termination

If this Agreement is terminated in whole or with respect to particular Estimates:

• termination does not affect any accrued rights or liabilities of the Parties;
• subject to clause 5, the Client must pay the Fees for any Services provided up to the date of termination under any terminated Estimate within 30 days of termination.

• Survivability

The following provisions survive termination or expiry of any Estimate or this Agreement: 1 – (Interpretation);  2.3 – (Consequences of termination); 2.4 – (Survivability); 6 – (Fees); 10 – (Intellectual Property); 11 – (Confidentiality); 12 – (Privacy); 14 – (Insurances and duty to mitigate loss); 15– (Warranties and Exclusions); 16 – (Indemnities); 17 – (Liability); 18 – (Dispute resolution); 19 – (Notice); 21 – (General), and any other contractual provisions that by their nature are intended to survive termination or expiration of this Agreement.

3. PROVISION OF SERVICES
   • Appointment

The Client appoints Zaina Stacey to provide the Services requested from time to time in an Estimate (the Services) in accordance with the terms and conditions set out in this Agreement and any special conditions (if any) specified in an Estimate.

• Delivery of Services
  • In consideration for the Client paying the Fees to Zaina Stacey, Zaina Stacey will provide the Services to the Client in accordance with the scope and specifications outlined in the Estimate.
  • Zaina Stacey will provide the Services in places and locations as set out in an Estimate or as agreed by the Parties in writing from time to time.
• Performance of Services

Zaina Stacey must:

• provide all Services described in the relevant Estimate;
• use best endeavours to perform the Services in accordance with the timing requirements (if any) specified in the relevant Estimate or otherwise agreed in writing with the Client; and
• perform the Services using appropriate methods and practices, with the skill, prudence and foresight reasonably expected experienced and reputable suppliers of services similar to the Services.

• Suspension

Zaina Stacey may immediately suspend the provision of the Services to the Client if Zaina Stacey is of the reasonable view that the Client is in breach of this Agreement. Zaina Stacey will use commercially reasonable efforts under the circumstances to provide the Client with notice and, if applicable, an opportunity to remedy such violation of the Agreement prior to any such suspension.

4. QUOTES
   • Addition of a new Estimate
     • The Parties will negotiate the terms of any draft Estimate in good faith.
     • Once executed or agreed by both Parties in accordance with this Agreement, the draft Estimate will be an effective Estimate under this Agreement.
   • Variations to an existing Estimate
     • A Party wishing to vary an Estimate must notify the proposed variations to the other Party.
     • Upon receipt of the notice described in clause 2(a), the Parties may negotiate in good faith:
       • any changes to any Fees; and
       • any impacts which the variation will have on Zaina Stacey’s ability to perform its obligations.
     • If the variations are agreed, they will be reflected in a document (executed by both Parties) outlining the change and any identified assumptions and impacts. For the avoidance of doubt, the document reflecting the variation may be:
       • a variation deed or agreement outlining the changes; or
       • a new Estimate that replaces the existing Estimate.
     • Notwithstanding any other clause in this Agreement, if the costs to Zaina Stacey increase, Zaina Stacey may in its sole discretion update the Fees to a corresponding amount on written notice to the Client.
   • Cancellation of Estimate
     • An Estimate accepted by Zaina Stacey cannot be cancelled without Zaina Stacey’s prior written consent (in its sole discretion).
     • No application for cancellation or delay in delivery of the Services in an Estimate will be considered unless made by the Client in writing to Zaina Stacey.
     • Zaina Stacey will consider an application for cancellation or delay in delivery of the Services in an Estimate at its sole discretion.

5. CLIENT’S OBLIGATIONS
   • Without limiting any other rights outlined in the Agreement or under law, the Client agrees to cooperate with Zaina Stacey as reasonably required to allow Zaina Stacey to carry out its duties and rights under the Agreement, including (without limitation):
     • providing adequate and safe access to the Client’s premises and facilities and providing any utilities and labour that may be reasonably required;
     • co-operate with Zaina Stacey as Zaina Stacey reasonably requires;
     • provide the information, documentation and facilities that Zaina Stacey reasonably requires;
     • ensure that all sites, works and materials for which the Client is responsible, and all the Client’s equipment which is relevant to this Agreement and/or the use of the Services comply with current industry standards and all legal and statutory requirements, and with any specifications provided by Zaina Stacey;
     • obtain and maintain all necessary licences, permits, authorisations, approvals and consents, and comply with all legal obligations, in connection with the Client’s use of any Services supplied to the Client under this Agreement; and
     • not at any time disclose any of the know-how, technology, information, documents or other IP supplied by Zaina Stacey or contained in the Services supplied by Zaina Stacey, or otherwise made available to the Client.
   • The Client will not charge Zaina Stacey for the information, documentation and facilities made available by the Client.
   • If the Client does not provide the information, resources, documentation and facilities that Zaina Stacey reasonably requires (and within the time period reasonably required) to perform the Services, then any additional costs and expenses which are reasonably incurred by Zaina Stacey will be paid by the Client and the Client will accept any delay in the provision of the Services.
6. FEES
   • Payment of Fees
     • The Fees for the Services are stated in the relevant Estimate.
     • In consideration of the provision of the Services in accordance with this Agreement, the Client will pay Zaina Stacey the Fees.
   • Payment Terms and Invoicing
     • Zaina Stacey will provide the Client with a tax invoice in accordance with this Agreement and all applicable laws. Unless otherwise specified in the Estimate, invoices will be issued for Services in the timeframes specified in the Estimate.
     • The Client must pay undisputed, correctly rendered invoices in Australian dollars by electronic funds transfer to Zaina Stacey’s bank account as detailed to the Client in writing, within 14 days from the date of receipt by the Client of those invoices.
     • The Client acknowledges and agrees that processing and administration fees may apply. The Client acknowledges and agrees that Zaina Stacey may recover any merchant or dishonour fees from the Client as a result of the Client’s payment method.
   • Cost and disbursements

Zaina Stacey is permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier services, postage, or as otherwise listed in the Estimate.

• Pro-rated payment

In the event that part or all of Services is not completed for whatever reason, Zaina Stacey will be entitled to charge pro rata for so much of the Services that is completed.

• Cancellation Fees
  • If either Party cancels all or part of the Services under an Estimate, the Client may be required to pay Zaina Stacey the applicable Cancellation Fee as set out in the relevant Estimate.
  • For the avoidance of doubt, the Client will be deemed to have cancelled all or part of the Services under this Agreement (or an Estimate, as the case may be), where Zaina Stacey terminates this Agreement in accordance with clause 2.
  • Any Cancellation Fee charged upon termination of this Agreement is without prejudice to any other accrued rights of Zaina Stacey as at the date of termination.
• Failure to pay
  • If the Client does not make payment in accordance with the payment terms specified in the applicable schedules or as otherwise provided for in the Agreement, Zaina Stacey is entitled to do any or all of the following:
    • charge interest on the outstanding amount at the rate of 10% per year above the cash rate of the Reserve Bank of Australia, accruing daily;
    • require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been delivered;
    • suspend or cancel the supply of Services;
    • not deliver any further Services (or any part of the Services);
    • immediately terminate the Agreement; and
    • take out debt recovery action against the Client.
  • If the Customer defaults in payment of the Fees, the Client will be liable for all costs incurred by Zaina Stacey and will indemnify Zaina Stacey against any loss, liability, charge, expense, outgoing or payment which Zaina Stacey suffers, incurs or is liable for in respect of the recovery of monies owing by the Customer to Zaina Stacey.
• Security of Payment Legislation

Where the Services relate to or are in connection with “construction works” as defined under the Building and Construction Industry Security of Payment Act 2009(SA) (Security of Payment Legislation), all claims for payment made by Zaina Stacey are subject to the Security of Payment Legislation.

7. TAX
   • Prices and GST
     • Unless otherwise stated, all amounts payable under this Agreement are exclusive of GST.
     • If GST is payable on any supply made under this Agreement by one party (the Supplier) to the other party (the Recipient), the Recipient must pay to the Supplier an amount equal to the GST payable on the supply at the same time that the consideration for the supply is to be provided under this Agreement.
   • Tax Invoices

The Supplier must provide the Recipient with a valid tax invoice in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any relevant regulations.

• Adjustment Events

If an adjustment event occurs in relation to a taxable supply made under this Agreement, the Supplier must issue an adjustment note to the Recipient within 14 days of becoming aware of the adjustment event, and any necessary payments must be made to reflect the adjustment.

• Reimbursement of Expenses

Any reimbursement of expenses under this Agreement shall be exclusive of GST, and if GST is applicable to the expenses, it must be added to the reimbursement amount and paid by the Recipient.

8. DEFAULT

If the Client defaults on any of its obligations under the Agreement, in addition to any other rights at law Zaina Stacey may have, Zaina Stacey may take one or more of the following actions at its election:

• immediately cease the provision of the Services;
• treat the Agreement as repudiated and sue the Client for any loss and damage;
• require the immediate payment by the Client of all monies owing by the Client to Zaina Stacey under any account.

9. USE OF SUBCONTRACTORS

Zaina Stacey is permitted to use other persons to provide some or all of the Services. Zaina Stacey is responsible for the work of any of Zaina Stacey’s subcontractors.

10. INTELLECTUAL PROPERTY
    • Rights in IP

Subject to clauses 10.2(b) and 10.3, this Agreement does not confer on a Party any proprietary right or title to any IP of the other Party.

• Zaina Stacey’s IP
  • Zaina Stacey represents and warrants that it is the absolute legal and beneficial owner of, or that it holds a valid licence to use, Zaina Stacey’s IP.
  • The Client acknowledges and agrees that Zaina Stacey’s IP remains the property of Zaina Stacey.
  • Zaina Stacey grants to the Client a revocable, non-exclusive, non-transferable, royalty-free licence for the term of this Agreement to exercise all rights in Zaina Stacey’s IP as is necessary for the Client to enjoy the benefit of the Services.
• Developed IP

Zaina Stacey acknowledges and agrees that all IP created by Zaina Stacey in connection with the Services (Developed IP) will vest with Zaina Stacey upon creation. Upon payment of the Fees, Zaina Stacey will provide a non-exclusive, revocable, non-transferable, royalty-free licence to use the Developed IP for the purposes of the Client receiving the benefit of the Services.

• Client’s IP

The Client grants to Zaina Stacey a non-exclusive, non-transferable, royalty-free licence to use the Client’s IP as is necessary for Zaina Stacey to provide the Services.

• Moral Rights

Zaina Stacey must obtain from each of its Personnel and individuals who are involved in the performance of the Services, an express agreement not to enforce any Moral Rights they may have presently or in the future, in any work or material produced in the performance of the Services, including by executing any Moral Rights consents reasonably required by the Client.

• Further actions

Each Party must (at the request of the other party) execute all further documents and take such further action required to generally give effect to this clause 10including as required to obtain, perfect, enforce, assert or defend its interests in or rights to use the Intellectual Property Rights afforded under this clause 10.

11. CONFIDENTIALITY
    • Ownership of Confidential Information

Each Party (a Recipient) acknowledges that the other’s (Discloser’s) Confidential Information is, and remains, the property of the Discloser. This Agreement does not convey any proprietary or other interest in one Party’s Confidential Information to the other. The Recipient must keep the Discloser’s Confidential Information strictly confidential and not disclose it or allow it to become available to any third party, except as provided for in this Agreement. This obligation survives the termination of this Agreement and will continue until the information no longer constitutes Confidential Information of the Discloser.

• Authorised use and disclosure of Confidential Information
  • The Recipient may only access and use the Discloser’s Confidential Information to perform its obligations or exercise its rights under this Agreement, or with the Discloser’s prior consent. The Recipient must comply with any reasonable security and safety procedures stipulated by the Discloser.
  • The Recipient may disclose the Discloser’s Confidential Information to the extent required to comply with any law, regulation or stock exchange rule. However, the Recipient must (to the extent possible) minimise the extent of disclosure and give the Discloser prior notice with reasonable details of the proposed disclosure and the relevant Confidential Information to be disclosed.
• Unauthorised Disclosure or Use of Confidential Information

Each Party acknowledges that damages are unlikely to adequately redress its breach of this clause, so a Discloser may seek injunctive or other equitable/interlocutory relief to protect its Confidential Information against breach of this clause, without proof of actual damages.

• Return of Confidential Information

On termination of this Agreement, and on request of the Discloser, the Recipient must, subject to clause 11.5:

• deliver to Discloser any of the Discloser’s Confidential Information in the Recipient’s possession or control that is reasonably capable of being delivered; or
• irretrievably delete, erase or destroy all of the Discloser’s Confidential Information in the Recipient’s possession or control that is not capable of delivery to the Discloser,

and confirm in writing to the Discloser that it has done so.

• Retention of certain Confidential Information

Provided the Recipient continues to comply with this clause 11, the Recipient may retain any Confidential Information that:

• is included in any board papers of the Recipient, or in back up tapes made in the ordinary course of its business which are not capable of ready search and deletion;
• the Recipient is required by law or any regulatory requirement to retain, or needs to retain to defend itself in any proceeding being brought or threatened against it at the time the Confidential Information must be returned or destroyed;
• the Recipient is required to retain for its own reasonable internal credit, risk, insurance, taxation or record-keeping purposes; or
• is contained in any electronic record made in the ordinary course of the Recipient’s business which is captured by automated document retention procedures designed to allow the Recipient to comply with document retention laws.

12. PRIVACY
    • Each party must comply with the requirements of the Privacy Act 1988 (Cth), including the Australian Privacy Principles, any other applicable laws or codes governing Personal Information.
    • Zaina Stacey takes privacy seriously and any information disclosed by the Client to Zaina Stacey in accordance with this Agreement is subject to Zaina Stacey’s Privacy Policy, which is available on: https://www.zainastacey.com/privacy-policy/
    • The Privacy Policy is hereby incorporated into these Terms by reference. Notwithstanding the foregoing, the Privacy Policy may be amended from time to time without amending this Agreement.
    • To the extent that there is a conflict between the Privacy Policy and these Terms, the terms of the Privacy Policy shall prevail.
13. DATA

The Client grants Zaina Stacey a perpetual, non-exclusive, worldwide, royalty-free irrevocable licence to use, copy, print, display, reproduce, modify, publish, post, transmit, distribute, and preserve any Data provided by the Client through in accordance with this Agreement, provided that this clause does not extend to Confidential Information and/or Personal Information.

14. INSURANCES AND DUTY TO MITIGATE LOSS

Zaina Stacey shall take out and maintain all insurance from a reputable insurer that is adequate to cover all risks usually covered for the supply of the Services, or as otherwise required by law.

15. WARRANTIES AND EXCLUSIONS
    • Warranties in relation to Services

Zaina Stacey warrants that it will use reasonable care and skill in supplying the Services, under this Agreement.

• No reliance

Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement.

• Delays

The performance of Services under this Agreement may be subject to delays caused by third parties, including but not limited to, government agencies (e.g. Land Titles Office), contractors, suppliers, and other external entities. Zaina Stacey shall not be held liable for any delays or failures in performance to the extent that such delays or failures are caused by factors beyond its reasonable control, including actions or inactions of third parties. The Service Provider agrees to promptly notify the Client of any anticipated delays and to use commercially reasonable efforts to minimize any such delays.

• Exclusions
  • To the maximum extent permitted by law, other than the warranties expressly stated in this Agreement (or any applicable Estimate), Zaina Stacey gives no warranties regarding the provision of the Services and all implied or imposed conditions, warranties and rights are hereby excluded, including (without limitation) warranties in relation to fitness for purpose, merchantability, and/or the Services being provided error free and/or in a timely manner.
  • Where any condition, warranty or right is implied or imposed by law and cannot be excluded, the sole liability of Zaina Stacey for loss or damage incurred in respect of goods and/or services supplied (or agreed to be supplied) shall be limited to:
    • in the case of goods, at Zaina Stacey’s option:
      • the replacement of the goods or the supply of equivalent goods;
      • the repair of the goods;
      • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • the payment of the cost of having the goods repaired; and
    • in the case of services, at Zaina Stacey’s option:
      • supplying the services again; or
      • paying the cost of having the services supplied again.

16. INDEMNITIES
    • Indemnity by Zaina Stacey
      • Zaina Stacey must reimburse the Client for, and indemnify and hold them harmless against, all Claims suffered or incurred by the Client arising in connection with:
        • fraud, or fraudulent misrepresentation, gross negligence, or wilful misconduct of this Agreement by Zaina Stacey or its Personnel; and/or
        • infringement of a third party’s Intellectual Property Rights arising out of any act or omission of Zaina Stacey or its Personnel.
      • Zaina Stacey will not be liable to the Client (including under this clause 1) to the extent that the Client’s acts or omissions have contributed to the Claim and/or liability. For the avoidance of doubt, the Client has a duty to mitigate any losses arising from an act or omission of Zaina Stacey.
    • Indemnity by the Client
      • The Client must reimburse Zaina Stacey for, and indemnify and hold them harmless against, all Claims suffered or incurred by Zaina Stacey in connection with or arising out of:
        • fraud, or fraudulent misrepresentation, repudiation, gross negligence or wilful misconduct of this Agreement by the Client or its Personnel;
        • breach of the terms of the Agreement; and/or
        • use of the Services in a manner that is not in accordance with this Agreement.
      • The Client will not be liable to Zaina Stacey (including under this clause 2) to the extent that Zaina Stacey’s acts or omissions have contributed to the Claim and/or liability. For the avoidance of doubt, Zaina Stacey has a duty to mitigate any losses arising from an act or omission of the Client.

17. LIABILITY
    • Limitation on liability

The liability of Zaina Stacey in connection to any Claim made pursuant to the supply of Services under this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise will not exceed the Fees (as applicable) paid by the Client to Zaina Stacey under the applicable Estimate.

• Indirect or Consequential Loss

Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature (including any loss of business, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data).

• Duty to mitigate loss

Notwithstanding any other provision of this Agreement, the Client acknowledges and agrees that the use of the Services may result in the Client or (or the Client’s employee(s), agents, contractors, etc) suffering loss, damage, costs or expenses. The Client acknowledges and agrees that to at all times maintain appropriate insurance and undertake any other actions necessary to mitigate such loss, damage, costs or expenses.

• Survival of obligations

The obligations accepted by Zaina Stacey and the Client under this clause 17 survive termination or expiry of this Agreement.

18. DISPUTE RESOLUTION
    • Handling of Disputes

Any dispute, difference or disagreement under this Agreement (Dispute) must be handled under this clause. However, nothing in this clause prevents a Party seeking urgent interim or interlocutory relief from a court of law to preserve property or prevent irreparable harm. Further, if a Party fails to comply with this clause, the other Party need not comply with it before commencing proceedings in any court or tribunal of competent jurisdiction. The Parties will continue to perform the Agreement despite any Dispute, provided that either Party may exercise any of its rights under this Agreement at any time.

• Initial negotiations between parties

A Party wishing to resolve a Dispute must notify the other Party describing the Dispute in sufficient detail for the other Party to adequately evaluate it (the Dispute Notice). The Parties must attempt to resolve any Dispute by agreement through the Client’s authorised representative and Zaina Stacey’s authorised representative as detailed in an Estimate.

Those discussions (and documentation tendered in connection with them) will be solely to resolve the Dispute on a “without prejudice” basis (whether or not expressly designated).

• Mediation

If those discussions fail to resolve the Dispute within thirty (30) days from receipt of the Dispute Notice, a mediator will be selected by agreement of the Parties, or failing agreement within 10 Business Days, by The Australian Commercial Disputes Centre (ACDC) under its “Guidelines for Commercial Mediation” (on the request of either Party). The Parties will then use their reasonable efforts to resolve the dispute by mediation under ACDC’s “Guidelines for Commercial Mediation”.

• Termination of mediation

Either Party may terminate the mediation at any time on notice to the other Party and the mediator.

• Costs

The Client must pay Zaina Stacey all costs and expenses incurred by Zaina Stacey in seeking to enforce and in enforcing Zaina Stacey’s rights under these Terms, including any legal expenses (on a full indemnity basis), debt recovery agents’ fees and commissions, process server fees, company and business search fees, any investigation fees and charges and the internal administration costs of Zaina Stacey.

19. NOTICE

A notice, request, demand, consent or approval (notice) from a Party to another (Recipient) must be in writing, addressed to Recipient and delivered by one of the following means (deemed delivery and receipt being as specified below for each method, provided that if the provisions below would deem a notice to be delivered / received on a non-Business Day or after 4pm on a Business Day, then the notice will be deemed to have been delivered / received on the next Business Day):

• delivered to Recipient’s address – deemed delivered/received at date and time of delivery;
• sent by registered mail to Recipient’s address – deemed delivered/received on the third Business Day after posting (within Australia) or on the tenth Business Day after posting (outside Australia);
• emailed to Recipient’s email address (deemed delivered/received when the sender gets a confirmation message from Recipient’s mail server indicating that the message was received by Recipient without error).

The address and email address of each Party is specified in the Estimate and is subject to any updates notified by either Party in writing.

20. FORCE MAJEURE
    • If a Force Majeure Event occurs and prevents a Party (Affected Party) performing its obligations, under this Agreement, that Party must promptly notify the other Party of the event, the time it started and likely duration, the extent that its obligations are affected and the measures proposed to remedy or mitigate its consequences. The Affected Party’s obligations are then suspected solely to the extent it is prevented from performing them by the Force Majeure Event.
    • The Affected Party must:
      • promptly take all necessary steps to remedy or mitigate the Force Majeure Event’s effects, so as to resume full performance of its obligations as soon as reasonably possible; and
      • take all action reasonably practicable to mitigate any loss suffered by the other Party as a result of its failure to carry out its obligations.
    • If the delay or failure exceeds 30 days, the other Party may immediately terminate this Agreement on notice to the Affected Party and Clause 4 will apply.
21. GENERAL
    • Entire agreement
      • This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
      • The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
    • Amendment

The Parties may amend the Terms of the Agreement by mutual agreement in writing.

• Assignment
  • Subject to clause 3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
  • A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
• Waiver

No failure or delay by Zaina Stacey in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

• Relationship
  • This Agreement will not constitute or imply any employment, partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
  • Unless expressly stated otherwise in this Agreement, neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
• Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

• Notices

A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by post to the address or email of the addressee as set out in this Agreement (or as otherwise notified in writing).

• Law and jurisdiction

This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in South Australia, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Adelaide, South Australia, Australia.