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Terms and Conditions – HR

Terms and Conditions – HR 

  1. PARTIES
  • Employee Matters Pty Ltd (ACN 46 154 568 297)

PO Box 43, Belrose West, NSW 2085

(Employee Matters)

  • (Client)

2. DEFINED TERMS

This clause 2 defines terms used in this agreement. Other terms are defined elsewhere in this agreement.

  • Business Day means a week day on which banks are open for business in NSW.
  • Client excludes Related Bodies Corporate of Client unless and to the extent otherwise agreed in writing by the parties.
  • Client Materials means all subject-matter authored, created, produced or supplied by Client in or to which Intellectual Property or other rights subsist or relate.
  • Confidential Information means any discovery, fact, data, idea, plan, strategy, method, principle, technique, routine, practice, knowledge, design, trade secret, know-how, information about the business, employment and HR affairs of Client, product specification, business proposal or marketing plan, that is not presently widely known or available to the public and that is held by Employee Matters or Client or generated by Employee Matters or Client in the course of the performance of this agreement.
  • Expenses means charges, certain professional fees and other reasonable expenses (such as travel expenses) that Employee Matters incurs specifically in order to perform its obligations under this agreement.
  • Employee Matters Materials means all subject-matter authored, created, produced or licensed by Employee Matters, including as instructed by or with input from Client, in or to which Intellectual Property or other rights subsist or relate.
  • Insolvency Event means the happening of any of the following:
    1. an application is made to a court for a party be wound up or liquidator be appointed;
    2. a party appoints an administrator, liquidator or receiver;
    3. a party becomes insolvent; or
    4. anything having a substantially similar effect to any of the above occurs in relation to a party.
  • Intellectual Property means existing and future copyright, trade marks, designs, patents or circuit layouts, whether registered or not.
  • Loss includes any general, direct loss, damage, cost, expense or liability, including legal costs, but excludes special (indirect, incidental) loss.
  • Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth).
  • Schedule means the schedule the document referred to as such in relation clause 3 (Service Packages).
  • Service Package means a package of services and deliverables for supply to Client as and on the terms specified in the Service Package.
  • Third-Party Materials means materials provided to Client by Employee Matters, where that material has been authored, developed, produced or licensed to Employee Matters by a third party, being a third party who is not a sub-contractor of Employee Matters.

3. SERVICE PACKAGES

 

3.1. Employee Matters may publish or communicate to Client the terms of service packages. A service package becomes a Service Package (capitalised, as defined) only once Client engages Employee Matters (in accordance with this agreement) to supply the particular service package.

3.2. Client may engage Employee Matters to deliver multiple Service Packages, and more than one Service Package at any one time. Employee Matters may decline to accept any particular engagement for a service package proposed or requested by Client.

3.3. When Employee Matters is engaged to deliver a Service Package, that fact is recorded in the Schedule. When a Service Package is accepted (see clause 15.1(c)), the Schedule is automatically amended, or deemed to be amended, to include the Service Package (including its terms). This is regardless of whether the Schedule is physically (including electronically) amended to include the Service Package.

4. SERVICE PACKAGES

 

4.1 Employee Matters

 

  1. Employee Matters must supply the Service Packages and must do so with due care and skill and in a professional, workmanlike and timely manner.
  2. Where a Service Package entitles Client to receive up to a certain volume of services during a period of time, including without a right to roll-over unused services to a subsequent period of time (sometimes known as ‘use it or lose it’):
    1. Employee Matters’ obligation to supply the services and deliverables in any particular volume at any particular time is on a best endeavours basis only;
    2. Client acknowledges that Employee Matters services many clients and does not have unlimited resources available to service Client at any particular time; and
    3. Client acknowledges that, while Employee Matters may choose to do so from time to time, Employee Matters is under no obligation, at any time during a period for use of services, to warn Client that it risks being unable to use all services and deliverables to which it is otherwise entitled during that period unless it gives any particular instructions to Employee Matters at any particular time.

4.2. Client

 

  1. Client must provide such reasonable co-operation as required to enable Employee Matters to supply the Service Packages in accordance with this agreement, including:
    1. providing accurate instructions and feedback to Employee Matters when requested or required, and in a timely manner (which includes providing Employee Matters with reasonable notice of new, unusual or onerous instructions); and
    2. notifying Employee Matters of any material changes in Client’s circumstances.
  2. Client warrants that all Client Materials and other things provided to Employee Matters by Client in the course of the performance of this agreement are accurate and complete.

4.3. Special acknowledgement

Client acknowledges that a failure by Client to comply with obligations under industrial relations and employment laws may expose Client, its directors and Employee Matters to serious penalties.

5. FEES & EXPENSES

 

5.1. Fees

 

  1. Employee Matters may charge, and Client must pay, the fees as specified in each Service Package (Fees).
  2. Unless the Service Package specifies otherwise, all work undertaken will be charged on a time-taken basis according to the actual time expended rounded to the nearest minute.
  3. Where a Service Package includes services or deliverables on a ‘use it or lose it’ basis, Client is not entitled to any refund for services or deliverables that have been paid for but were unused by Client during the period for use of the services or deliverables.

5.2. Expenses

 

  1. Subject to this clause 5.2, Employee Matters may charge Expenses to Client, provided that Employee Matters must not incur any Expense exceeding $500 without Client’s prior approval in writing.
  2. Employee Matters represents that the Fees already make provision for routine and reasonable travel expenses as determined by Employee Matters, acting reasonably. Employee Matters may charge any other travel expenses as Expenses, including:
    1. at cost – charges for flights, accommodation, meals etc; and
    2. $125 per hour – professional time for travel, including downtime on site where work for other clients cannot reasonably be undertaken.

5.3. Payment

 

  1. Client must pay to Employee Matters all Fees and Expenses charged or payable under this agreement.
  2. Unless a Service Package specifies otherwise, all stated amounts of Fees and Expenses are stated exclusive of GST. Client must also pay to Employee Matters all GST required to be paid under Australian GST law.
  3. All payments must be in full and without any set-off.

5.4. Time

 

  1. Client must pay to Employee Matters all invoiced amounts within the time for payment specified on the invoice or, if no time is specified on the invoice, the time specified in the Service Package. If no time for payment is specified in the Service Package or on an invoice, then the time for payment is monthly in advance for recurring Service Packages, and within 7 days of invoice for all other Service Packages.
  2. Notwithstanding anything else in this agreement, if Client requests that Employee Matters commence its supply of a Service Package before a first invoice has been issued or has become due and owing, Employee Matters is not obliged to commence that supply until the amounts that are to be charged under the first invoice or that will become due and owing under the invoice, have been paid to Employee Matters.
  3. Notwithstanding anything else in this agreement, Employee Matters may postpone, attenuate, limit or suspend its supply of any Service Package until all amounts due and owing have been paid.

5.5. Method

Client must pay all amounts in accordance with the payment method set out in each invoice.

5.6. Late payment

  1. Employee Matters may charge simple interest on unpaid invoices at 2% per annum above the National Australia Bank’s prevailing commercial loan rate. Employee Matters may charge the interest on a daily basis from the date an invoice becomes overdue.
  2. Client must pay to Employee Matters all interest charged pursuant to paragraph 6.6(a) as though the interest had been invoiced on the day the payment of the unpaid invoice is paid.

5.7. Debt Recovery

If Client defaults in payment of any invoice, Client will pay Employee Matter’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis.

6. RELATIONSHIPS

 

6.1. Non-exclusive

Client’s engagement of Employee Matters under this agreement is non-exclusive. Nothing in this agreement prohibits or limits Employee Matters from providing services to any other person.

6.2. Sub-contractors

  1. Employee Matters may perform its obligations under this agreement by engaging sub-contractors. If Employee Matters engages sub-contractors, it must engage suitably skilled and experienced sub-contractors.
  2. Employee Matters’ liability for the performance of its obligations under this agreement is unaffected by its engagement of sub-contractors. To be clear, as against Client, Employee Matters remains the primary contractor.
  3. This clause operates notwithstanding clause 15.7 (assignment and novation).

6.3. Between the parties

Nothing in this agreement creates a relationship of agency, joint venture, partnership, employment or fiduciary relationship between the parties.

6.4. Publicity

Employee Matters must not make any public announcements about the fact of Client’s engagement of Employee Matters without Client’s prior approval in writing.

7. INTELLECTUAL PROPERTY

 

7.1. Ownership

  1. Except as expressly provided in this agreement, Employee Matters acknowledges that, as between it and Client, Employee Matters does not own any Intellectual Property or any other rights in Client Materials.
  2. As between Client and Employee Matters and in relation to Employee Matters Materials, Client gives the same acknowledgement as Employee Matters gives to Client in paragraph (a).
  3. Nothing in this agreement affects the ownership of any Intellectual Property or any other rights in Third-Party Materials.

7.2. Licences

  1. Employee Matters hereby grants Client a licence to use Employee Matters Materials (including making copies) supplied under this agreement, only as necessary for Client to acquire the Services. The licence is:
    1. for the term of this agreement;
    2. revocable, but only in circumstances where Client has not paid for the relevant materials or breaches clause 7.3(a) (infringement);
    3. non-exclusive;
    4. royalty free; and
    5. non-transferable and non-sublicensable, other than to Client’s Related Bodies Corporate.

b. Each licence to be granted to Client for Third-Party Materials will be granted by the third party directly to Client on terms determined by the third party, or by sub-licence from Employee Matters to Client on the same terms as the licence Employee Matters grants in the preceding paragraph, subject to any further limitations as imposed on Employee Matters by the third party and otherwise by Employee Matters in its discretion.

c. Client hereby grants Employee Matters a licence to use Client Materials provided under this agreement, only as necessary for Employee Matters to supply the Services. The licence is:

    1. for the term of this agreement;
    2. non-exclusive;
    3. confined to the territories in which Employee Matters, its Related Bodies Corporate and sub-contractors operate;
    4. royalty free; and
    5. non-transferable and non-sublicensable other than to Employee Matters’ Related Bodies Corporate and sub-contractors.

d. Notwithstanding paragraph (c), Employee Matters may use data collected from Client in the course of performing this agreement in de-identified, anonymous and aggregated form to identify, analyse and comment on trends within the field of employment and industrial relations.

7.3. Infringement

  1. Employee Matters warrants that Client’s use of Employee Matters Materials in accordance with this agreement will not infringe the Intellectual Property or other rights of any third party. Subject to that warranty, Client must not do any act that infringes Intellectual Property or other rights in Employee Matters Materials or in Third-Party Materials, including breaching any restriction displayed on the face of the material regarding making or distributing copies of those materials. Without limiting anything in this clause 7, Client must not alter or remove any copyright notice displayed on any Employee Matters Materials, or works derivative of those materials.
  2. Client warrants that Employee Matters’ use of Client Materials and anything else provided to Employee Matters by Client as contemplated by this agreement will not infringe the Intellectual Property or other rights of any third party. Subject to that warranty, Employee Matters must not do any act that infringes Intellectual Property or other rights in Client Materials.

7.4. Moral rights

Each party warrants that all authors (including contractors) of subject-matter comprised in Client Materials and Employee Matters Materials, as the case may be, have waived or will waive all right, title and interest they may have in any right, action or remedy for infringement of any moral rights they may have in that subject-matter, and that they consent to infringement of those moral rights.

8. CONFIDENTIAL INFORMATION

 

  1. The parties acknowledge that, in the course of performing this agreement, one party (Discloser) may disclose Confidential Information to the other (Recipient).
  2. Subject to the express provisions of this agreement, a Recipient must not:
    1. disclose any of Discloser’s Confidential Information to any person; or
    2. use any of Discloser’s Confidential Information for any purpose other than in connection with exercising its rights or performing its obligations under this agreement, without Discloser’s express written authorisation.

c. Each Recipient may disclose Discloser’s Confidential Information to its directors, officers, employees, contractors, sub-contractors and agents as, and only as, reasonably necessary for the purposes of Recipient’s performance of this agreement.

d. Upon termination of this agreement, the parties must, on request in writing, return to each other all materials embodying the Confidential Information of the other party. If it is impracticable for a party to return the Confidential Information, that party must destroy or permanently disable access to all materials embodying the Confidential Information. Employee Matters may retain one securely-held copy of so much of Client’s Confidential Information as is reasonable in order to maintain proper records of the services and deliverables provided and for insurance purposes.

9. ADDITIONAL WARRANTIES

 

9.1. Additional warranties Client gives

 

  1. In addition to and without limiting any warranty Client gives elsewhere in this agreement, Client warrants that:
    1. it is compliant and will continue to comply with all applicable laws (including industrial relations and employment laws) and holds all necessary licences, insurances and authorisations required to perform this agreement, and Client indemnifies Employee Matters for any loss that Employee Matters suffers in relation to a breach of this warranty;
    2. its officers, employees and agents are trained and supervised sufficiently to enable Client to perform this agreement;
    3. Employee Matters’ performing this agreement will not cause Employee Matters to act unlawfully by reason merely of Employee Matters’ supply of the Service Packages in accordance with this agreement and otherwise following Client’s feedback and directions and relying on information supplied by Client to Employee Matters;
    4. Client does not rely on any representation from Employee Matters that is not expressly contained in this agreement; and
    5. any representative of Client who signs this agreement, purports to vary this agreement or provides directions to Employee Matters is authorised by Client to do so and to bind Client under this agreement.

9.2. Additional warranties Employee Matters gives

In addition to and without limiting any warranty Employee Matters gives elsewhere in this agreement, Employee Matters warrants that any representative of Employee Matters who signs or purports to vary this agreement is authorised by Employee Matters to do so and to bind Employee Matters under this agreement.

9.3. Additional warranties Employee Matters does not give

In addition to warranties expressly disclaimed elsewhere in this agreement, Employee Matters gives no warranty that the Service Packages will confer on Client any particular commercial objective, outcome or benefit, nor any warranty not expressly contained in this agreement.

9.4. Legal services disclaimer

Employee Matters is not a law firm nor engages in legal practice. It does not give legal advice nor provides legal services. Where Employee Matters considers that Client may require the services of a legal practitioner, Employee Matters may recommend a legal practitioner to Client. Employee Matters is not liable for any costs, loss or damage incurred or suffered by Client in engaging with that or any other legal practitioner.

10. RESTRAINT & RECRUITMENT

 

10.1. Non-solicitation / non-circumvention

 

  1. Client must not solicit or entice any employee or contractor of Employee Matters to leave their employment or engagement, or to work for or otherwise supply services directly to Client or its Related Bodies, during the term of this agreement and for:
    1. 12 months after the termination of this agreement; or, if a Court finds this time period to be unreasonable, then
    2. 6 months after the termination of this agreement; or, if a Court finds this time period to be unreasonable, then
    3. 3 months after the termination of this agreement.

b. Client acknowledges that the restraint in paragraph 10.1(a) is reasonably necessary to protect the business interests of Employee Matters.

10.2. Consequences of breach

 

a. If Client breaches clause 10.1 and the relevant employee or contractor leaves the employ or engagement of Employee Matters, or works for or otherwise supplies services to Client or its Related Bodies, Client becomes liable to pay Employee Matters an amount equivalent to:

    1. in the case of an employee leaving their employment, 50% of the current annual salary package of that employee; or
    2. in the case of a contractor leaving their engagement, 100% of the fees payable for most recent 6 months of engagement and, if the engagement has endured for less than 6 months, then a reasonable projection of the next 6 months of engagement.

b. The sum referred to in paragraph (a) becomes due and payable to Employee Matters on the day the relevant employee or contractor leaves their employment or engagement with Employee Matters, or commences working for or otherwise supplying services to Client or its Related Bodies Corporate.

c. This clause 10.2 is without prejudice to the Client’s other obligations under this agreement, or any other right, action or remedy that Employee Matters may have against Client for breach of this agreement.

d. Client agrees that the amounts referred to in this clause 10.2 are a genuine pre-estimate of the loss that Employee Matters would suffer in the event of Client’s breach of clause 10.1.

10.3. Recruitment

 

a. If:

    1. an employee or contractor of Employee Matters works with Client in connection with this agreement (EM Staff Member);
    2. the EM Staff Member leaves their employment or engagement with Employee Matters;
    3. within 3 months of leaving, the EM Staff Member becomes employed or engaged by, or otherwise works for or supplies services directly to, Client or its Related Bodies; and
    4. clause 10.1 does not apply in relation to those matters,

then Client acknowledges and agrees that Employee Matters has, and is to be taken to have, provided recruitment services to Client in respect of the employment, engagement or otherwise of that EM Staff Member.

b. Employee Matters may charge Client additional fees for those recruitment services, which are to be taken to be included in the definition of ‘Fees’ under this agreement.

c. The amount of the Fees that Employee Matters may charge Client for the recruitment services is up to the same amount as provided for under clause 10.2(a).

11. LIMITATION OF LIABILITY

 

a. Without limiting the operation of clauses 9.4 and 10 or any other exclusion or limitation of liability or indemnity in this agreement:

    1. the liability of each party to the other is limited to the extent to which the other party caused the liability to arise by reason of its own negligence, breach of contract or other unlawful or illegal conduct;
    2. the liability of each party to the other is further limited to Loss; and
    3. Employee Matters’ liability to Client is further limited to supplying the relevant services and deliverables again or paying the cost of having the services and deliverables supplied again.

b. Paragraph (a) does not apply to the extent that the liability was caused by the fraud or wilful misrepresentation of the party seeking to limit its liability.

c. The paragraphs of this clause are to be read cumulatively to arrive at the lowest liability.

12. FORCE MAJEURE

 

  1. In the event that a party is prevented in fact or by law from performing any of its obligations under this agreement by reason of an event beyond its reasonable control, including by reason of or in connection with public health orders made in relation to a pandemic, then those obligations of that party are suspended for the period of time that the party remains so prevented.
  2. Paragraph (a) does not apply to an obligation to pay money nor to an event that was caused by an act of default by the party so prevented.

13. INSURANCE

Employee Matters must maintain appropriate levels of professional indemnity, public and product liability and workers’ compensation insurances, and provide reasonable evidence of its insurances at Client’s request.

14. TERM & TERMINATION

 

14.1. Term

 

  1. This agreement commences on the date that it is formed in accordance with clause 15.1 and continues until 12 consecutive months elapse with no Service Packages on foot, unless lawfully terminated earlier.
  2. Once accepted in accordance with clause 15.1(c), a Service Package commences on the commencement date specified in the Service Package or on any earlier or later date that the parties agree in writing (including by exchange of emails). Subject to paragraph (c), a Service Package continues until the earlier of:
    1. the end of the term or the termination date of the Service Package specified in the Service Package;
    2. if there is no term or termination date specified in the Service Package, 12 months from the date of commencement of the Service Package; or
    3. termination otherwise in accordance with this agreement.

c. If, such as by reason of inadvertence, the parties continue to perform a Service Package for a period of at least 14 days after it has terminated and in a manner consistent with ongoing performance rather than winding down, the Service Package is taken to have continued and to continue in force until that continued performance ceases or has ceased for a period of at least 7 days.

14.2. Termination for convenience

 

  1. Either party may terminate a Service Package or this agreement by giving the other party no less than 30 days’ notice in writing.
  2. If, within 6 months after the commencement of a Service Package or this agreement, Client has not instructed or engaged Employee Matters to supply any services or Service Package (as applicable), Employee Matters may terminate the Service Package or this agreement with immediate effect by giving Client notice in writing.

14.3. Termination for breach

Without prejudice to any other right, action or remedy, if a party (the first party) breaches this agreement and:

  1. the breach is reasonably capable of being remedied by the first party and the first party does not remedy the breach within 14 Business Days of the other party’s notifying the first party in writing about the breach; or
  2. the breach is serious and not reasonably capable of being remedied by the first party,

then the other party may terminate this agreement with immediate effect by giving the first party notice in writing.

14.4. Termination for other event

  1. Either party may terminate this agreement with immediate effect if an Insolvency Event occurs in relation to the other party.
  2. Either party may terminate this agreement with immediate effect if:
    1. a party has been relieved of any of its obligations pursuant to clause 12 (force majeure) for at least 6 consecutive months; and
    2. the obligations of which the party has been relieved are fundamental to that party’s performance under this agreement.

14.5. Consequences of termination

  1. Termination of a Service Package does not affect this agreement or any other Service Package on foot. Termination of this agreement terminates all Service Packages on foot.
  2. Upon termination of a Service Package, Employee Matters:
    1. will cease supplying the Service Package; and
    2. may issue an invoice for Fees and Expenses for any services supplied prior to termination but not yet invoiced. Client must pay the invoice within 7 days.
  3. If Employee Matters terminates this agreement pursuant to clause 14.2 or Client terminates this agreement pursuant to clauses 14.3 or 14.4, Employee Matters must refund to Client any portion of Fees and recoverable Expenses already paid and in respect of which services were not supplied prior to termination. Otherwise, and without limiting clause 5.1(c), Employee Matters is not obliged to refund any Fees.

14.6. Notice in advance

To be clear, any notice in writing given under this clause 14 is notice given in advance.

15. THIS AGREEMENT

 

15.1. Formation

a. The communication of a copy of this agreement to Client, whether by email, internet link or otherwise, is the making of a contractual offer by Employee Matters to Client. Client may accept the offer in any of the following means:

  1. by internet link (where available) – using an online or email acceptance mechanism (eg tick box ‘I accept’);
  2. otherwise – signing this agreement;
  3. otherwise – paying any Fees; or
  4. otherwise – instructing Employee Matters to commence supplying a Service Package and Employee Matters accepts that instruction in writing.

To be clear, if more than one of those means of acceptance is exercised, acceptance occurs when the first of those means is exercised.

  1. By accepting Employee Matters’ offer, Client enters into an agreement with Employee Matters on the terms recorded in this agreement.
  2. Client may accept a proposed service package in the same manner as provided for in paragraph (a) as if each reference to an ‘offer’ or ‘this agreement’ is a reference to a proposed service package.

15.2. Terms

 

  1. This agreement includes the Schedule and any other schedules to this agreement. To the extent there is any irreconcilable inconsistency between the body of this agreement and the Schedule or any other schedule, the terms of the Schedule and other schedule prevail.
  2. Subject to paragraph (a) and clause 15.4, this agreement:
    1. as a document, embodies all the express terms of the agreement; and
    2. supersedes or excludes all other agreements, arrangements, quotes, proposals, understandings and representations, written or oral, in relation to Client’s engagement of Employee Matters to supply the Service Packages.

15.3. Principles of interpretation of agreement

 

a. In this agreement, unless expressly to the contrary and as appropriate in the context:

  1. an expression in the plural may be read in the singular, and vice versa;
  2. all references to currency or amounts of money are in Australian Dollars;
  3. in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation only survives to the extent that the condition remains satisfied during the term of this agreement;
  4. a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things;
  5. a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation;
  6. a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;
  7. a reference to one alternative does not, of itself, exclude any other alternative;
  8. an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party;
  9. an expression prohibiting the doing of an act includes the prohibiting of:
    1. offering, attempting or purporting to do the act; or
    2. aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act;

x. an inclusive expression is without limitation;

xi. a list of rights is not to be read as an exhaustive list of rights;

xii. an expression of ownership includes the legal or beneficial ownership;

xiii. a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer;

xiv. a reference to an indemnity is a reference to compensation for loss, not prevention of loss;

xv. a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;

xvi. a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and

xvii. a reference to a schedule, provision, clause or paragraph is a reference to a schedule, provision, clause or paragraph of this agreement.

15.4. Variation

The parties may vary this agreement only by agreement in writing.

15.5. Waiver

Subject to this agreement, no waiver of rights, actions or remedies is effective unless in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not constitute a waiver of the relevant right, action or remedy.

15.6. Consumer rights & severability

 

a. Employee Matters acknowledges that:

    1. there may be a guarantee that the Service Packages will be supplied with due care and skill and that by operation of law there exist, or certain agreements may contain, certain terms, conditions, guarantees, warranties or liabilities whether by implication or otherwise (Consumer Rights);
    2. by operation of law, Consumer Rights cannot or must not be excluded, modified or limited; and
    3. to the extent that an agreement includes provisions that exclude, modify or limit Consumer Rights, or purports to do so, then by operation of law (including the Australia Consumer Law 2010 (Cth)) those provisions may be unlawful, unenforceable or void.

b. Subject to clause 11(a), but otherwise notwithstanding anything else in this agreement, this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.

c. To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including by reason of the matters acknowledged in clause paragraph (a) above), the other provisions of this agreement are valid and enforceable.

15.7. Assignment & novation

Neither party may assign its rights or novate its rights and obligations under this agreement without the other party’s written consent, which consent must not be unreasonably refused.

15.8. Survival

The following matters survive the termination of this agreement:

  1. clauses 4.3, 5.1(c), 5.6, 6.4, 7, 8, 9.3, 9.4, 10, 11, 14.5 and 15.8;
  2. all accrued obligations, including an obligation to pay fees and charges; and
  3. all terms necessary to construe and give effect to the foregoing matters.

15.9. Governing law & jurisdiction

The laws of the state of New South Wales, Australia, govern this agreement. The parties acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes arising under or in relation to this agreement. To the extent they come before any court, all disputes arising under or in relation to this agreement will be determined in the courts of NSW.