Please read these terms and conditions (and all our policies, including our Privacy policy) carefully before using the services offered on the GreenSocks site. Please contact us if you have questions.
Use of the GreenSocks site confirms that you agree to be bound by this Agreement.
User Agreement: GreenSocks.com.au
Introduction
1.1 GreenSocks Pty Ltd ACN 604 738 472 (GreenSocks) provides an online platform through GreenSocks’ website at https://GreenSocks.com.au allowing customers who require lawn care and gardening services to place requests for a booking of such services. GreenSocks then matches lawn care and gardening providers to fulfil such requests for a booking of the requested services.
Important Terms
A KEY DEFINITIONS
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
(a) Agreement means these Terms of Service.
(b) Arrangement Fee means the agreed fee payable to GreenSocks for arranging a Booking, the amount of which is agreed from time to time in writing between GreenSocks and a Provider.
(c) Australian Consumer Law means Competition and Consumer Act 2010 (Cth), it’s schedules and any consumer law that may apply in the State of Queensland.
(d) Booking means a booking placed between a Customer and a Provider through GreenSocks for the Provider Services.
(e) Booking Terms and Conditions means the terms and conditions set out in clause G below, which shall be the terms and conditions that apply to a Booking.
(f) Customer means any person who uses GreenSocks who is not a Provider.
(g) Customer Fee means the fee payable by the Customer for the Provider Services.
(h) Company means GreenSocks Pty Ltd ACN 604 738 472.
(i) GreenSocks means the GreenSocks:
i Web site accessible from https://GreenSocks.com.au or other domains associated with the Company from time-to-time; and/or
ii Mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces (when available).
(j) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found on the GreenSocks website and mobile application at https://GreenSocks.com.au/privacy
(k) Provider means a person capable of carrying out the Services.
(l) Provider Fee means the balance of the Customer Fee paid to the Provider once the Arrangement fee has been deducted.
(m) Provider Services means lawn care and gardening services.
(n) User means a Customer or Provider.
B AGREEMENT
B.1 This Agreement governs the use of GreenSocks by any User and limits the liability of the Company to any Provider. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:
(a) Customers in item E;
(b) Providers in item F; and
(c) Booking Terms and Conditions in item G.
B.2 In addition to any other express or implied consents, by using GreenSocks the User accepts and agrees to the terms of:
(a) This Agreement, and
(b) The Privacy Policy.
B.3 If required by GreenSocks, the User must register an account with the Company to use GreenSocks. The Company may set any registration requirements in its absolute discretion.
C GREENSOCKS
C.1 GreenSocks facilitates Bookings between Customers and Providers for the provision of the Provider Services.
C.2 In addition to any agreement that the Customer and Provider may agree between themselves, the Booking Terms and Conditions shall form the minimum agreement between the Provider and the Customer for the Provider Services. Such agreement is only between the Customer and the Provider. GreenSocks is not a party to the agreement between the Customer and the Provider and shall have no liability in respect of such agreement.
C.3 GreenSocks’ involvement in any Booking and Inspection will be limited to:
(a) Enabling a Customer and a Provider to make a Booking;
(b) Collecting the Customer Fee;
(c) Forwarding the Provider Fee to the Provider.
D BOOKINGS
D.1 A Customer requests a Booking by completing the GreenSocks booking request form or completing a booking request via telephone or text with the Company. GreenSocks will then contact a Provider to confirm whether they are available to fulfil the Booking. This may require a Provider to visit the Customer’s premises in order to assess the premises for the purpose of providing a quote for the Booking.
D.2 A Provider confirms their availability for a Booking by:
(a) Confirming the details of the Nominated Individual; and
(b) Accepting the GreenSocks recommended pricing for the quote; or
(c) Providing a new quote for the Provider Services (which may require an on-site inspection of the Customer’s property by the Provider).
D.3 GreenSocks will notify the Customer with details of the proposed Provider and the Nominated Individual, and request the Customer to confirm the Booking.
D.4 If the Customer wishes to proceed, the Customer must confirm the Booking by credit card (or via another form of confirmation accepted by GreenSocks).
D.5 Once the Customer confirms a Booking, GreenSocks will send the Customer a Booking confirmation, as well as confirm the booking with the agreed Provider.
E CUSTOMER TERMS
E.1 Customer Responsibilities
E.2 The Customer acknowledges and agrees:
(a) That it uses GreenSocks at its own risk.
(b) To only use GreenSocks for its intended purpose as set out in this Agreement;
(c) To pay for the Provider Services it makes a Booking for using GreenSocks; and
(d) That the Services will only be provided in accordance with the Booking Terms and Conditions, or on such other terms agreed between the Customer and the Provider.
E.3 Payment
(a) GreenSocks will process the Customer’s Fee on the earlier of either:
i The Customer confirming via GreenSocks that the Provider has completed the booked job; or
ii Twenty-four (24) hours after the Booking, if confirmation has not been received by the Customer.
E.4 If the Customer wishes to cancel payment of their fee then the Customer must notify the Company within twenty-four (24) hours of the Booking of its wish to cancel payment. Payment of a Fee will only be cancelled in the following circumstances:
i The Provider did not attend the Booking;
ii The Customer logs a complaint against a Provider for failing to meet its obligations under the Booking Terms and Conditions, or any other agreement between the Customer and Provider.
E.5 In order to facilitate the transfer and invoicing of the Provider Fee, the Customer authorises GreenSocks to provide its nominated bank account details to a third party payment services provider.
E.6 Refunds will not be processed except as required by law. Refunded payments will be made to the Customer’s original method of payment.
E.7 Cancelled Booking
(a) A Customer may only cancel a Booking by providing the Company with no less than twenty-four (24) hours notice prior to the time that the Booking is scheduled to take place.
(b) A cancellation made otherwise than in accordance with clause (a) will not be eligible for a refund.
F PROVIDER TERMS
F.1 The Provider agrees and accepts that the Provider shall:
(a) Follow the Company’s guidelines in the registration for and use of GreenSocks;
(b) Hold and maintain a valid ABN;
(c) Supply GreenSocks with its ABN and contact details;
(d) Supply GreenSocks with the name, contact details and a portrait photograph of each Nominated Individual;
(e) Provide the Customer with Provider Services on the terms set out in the Booking Terms and Conditions, or as otherwise agreed between the Provider and the Customer;
(f) Only use GreenSocks for its intended purpose as set out in this Agreement.
F.2 The Provider warrants and accepts that:
(a) The Provider uses GreenSocks at its own risk;
(b) The Provider and all its Nominated Individuals have the appropriate skills and expertise to provide the Services to the highest standards;
(c) The Provider indemnifies the Company for any claim by a Customer or third-party that results from the Provider Services;
(d) GreenSocks provides public liability insurance cover only for jobs booked via the GreenSocks platform and only to the extent outlined on the GreenSocks website at https://GreenSocks.com.au/insurance. The Provider and/or all its Nominated Individuals are responsible for carrying any other necessary insurances as are required by law or any relevant professional body, including without limitation in respect of personal accident or injury, public liability and products liability insurance in an amount that would be reasonably expected of a prudent provider of similar services.
F.3 Fees and Payment
(a) In consideration for providing the GreenSocks Platform, the Company will deduct and retain the Arrangement Fee from the Customer Fee, and forward the Provider Fee to the Provider within ten (10) business days of the completion of the Services.
(b) Notwithstanding any other provision of this Agreement, payment of the Provider Fee will only be made to the Provider if the Provider has fulfilled all of its obligations under these Terms and Conditions, otherwise the Provider Fee may be forfeited by the Provider.
(c) The Provider authorises GreenSocks to provide its nominated bank account details to a third party payment services provider, in order to facilitate the transfer and invoicing of the Provider Fee.
(d) The Company is under no obligation to pay a Provider Fee if it is not in receipt of the Customer Fee.
F.4 Cancelled Booking
(a) A Customer may cancel a Booking by providing GreenSocks with no less than twenty-four (24) hours notice prior to the scheduled time for the Booking.
(b) The Fee for a cancelled Booking will be fully refunded to the Customer and the Provider will not be entitled to the Provider Fee or any other payment in respect of such cancelled Booking.
(c) A cancellation made otherwise than in accordance with clause (a) will not be eligible for a refund.
G BOOKING TERMS AND CONDITIONS
G.1 The following provisions comprise the Booking Terms and Conditions:
(a) The Provider will provide the Provider Services to the Customer for each confirmed Booking;
(b) The Provider will attend the Booking no later than the scheduled time for the Booking to take place;
(c) The Provider will provide the Provider Services to a satisfactory standard and will comply with the Australian Consumer Law in all respects;
(d) The Customer will pay for the Provider Services via GreenSocks in accordance with this Agreement;
(e) Any dispute that arises between the Customer and the Provider shall be dealt with between the Customer and Provider only. The Company accepts no responsibility for the Provider Services.
(f) In the event that the Customer complains about a Provider within twenty-four (24) hours of the scheduled time of a Booking, the Company will not process the Provider Fee until it has made a determination on the Complaint. The Company’s determination on a complaint shall be final, and shall be limited to one of the following two options:
i The Company rejects the Customers complaint: The Company shall process the Customer Fee via GreenSocks and pay the Provider the Provider Fee; or
ii The Company accepts the Customers complaint: The Company shall not process the Customer Fee and will not pay the Provider Fee.
(g) In the event that the Company accepts a Customer Complaint, the Provider shall have no right of review, and shall have no claim against the Company. Any claim the Provider may have for non-payment shall be against the Customer alone.
General Conditions
1 INTERPRETATION
1.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane, Queensland.
(d) Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v The party’s policies and procedures; and
vi All information contained in this document,
But excludes information that the other party can establish:
vii Is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii Is in the public domain other than by a breach of this document or any obligations of confidence.
(e) Corporations Act means the Corporations Act 2001 (Cth).
(f) User Content means data that is uploaded or input into GreenSocks by the Customer or that forms part of the Customer’s Intellectual Property.
(g) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic; and
iii Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(h) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(i) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(k) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(l) Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(m) Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(n) Privacy Act means the Privacy Act 1989 (Cth).
(o) Solution means the solution described in the Important Terms.
(p) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(q) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(r) User means a Customer or Provider.
1.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this Agreement.
(d) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
2 APPLICATION OF THIS AGREEMENT
2.1 This Agreement applies to use of and access to GreenSocks.
2.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using GreenSocks.
2.3 This Agreement may be updated by the Company at its absolute discretion from time to time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of GreenSocks at the User’s next login after the User receives notice of the update(s).
3 THE GREENSOCKS PLATFORM
3.1 GreenSocks is the product described in the Important Terms.
3.2 The User agrees and accepts that GreenSocks is:
(a) Accessed using the internet or other connection to the Company’s servers and shall only be maintained by the Company; and
(b) Managed and supported exclusively by the Company from the Company’s servers and that no ‘back-end’ access to GreenSocks is available to the User unless expressly agreed in writing.
3.3 The Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter GreenSocks.
3.4 The Company shall not exercise its rights under clause 3.3 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of GreenSocks to the User, other than in accordance with the terms of this Agreement.
4 TERM
4.1 The User’s license to access GreenSocks shall be ongoing until terminated by the Company in accordance with this Agreement.
5 LICENSE
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use GreenSocks for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may limit or restrict access to GreenSocks from time-to-time as it sees fit, including (but not limited to):
(a) Entities. The Company may restrict access only to registered entities and people; and
(b) Location. The Company may restrict access to GreenSocks to certain jurisdictions where it is able to offer GreenSocks.
5.3 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.4 The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6 USE
6.1 The User agrees that it shall only use GreenSocks for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way the Company in its discretion deems that unreasonable.
7 AUTHORISED USERS
7.1 The User may authorise other parties to access GreenSocks in its absolute discretion.
7.2 The Company accepts no liability for access to User Content by Third Parties authorised by the User.
7.3 The User is solely responsible for the security of any username and password for access to GreenSocks.
8 USER DATA
8.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for GreenSocks).
9 PRIVACY
9.1 The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other users.
9.2 The Privacy Policy does not apply to how the User handles personal information. It is the User’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with the law.
9.3 The Company makes no warranty as to the suitability of GreenSocks in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether GreenSocks is appropriate for the User’s circumstances.
9.4 The GreenSocks website may use cookies (a small tracking code in your browser) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
10 DATA
10.1 Security. The Company takes the security of GreenSocks and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
10.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
10.3 Storage. The Company may limit the amount of data that the User stores in GreenSocks, and shall advise the User of such. Data that is stored with GreenSocks shall be stored according to accepted industry standards.
10.4 Backup. The Company shall perform backups of GreenSocks in a manner and at such times and intervals it deems reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
11 ACCESS
11.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to GreenSocks to the best of its abilities, however:
(a) Access to GreenSocks may be prevented by issues outside of its control; and
(b) It accepts no responsibility for ongoing access to GreenSocks.
12 INTELLECTUAL PROPERTY
12.1 Trademarks. The Company has moral and registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
12.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of GreenSocks.
12.3 The GreenSocks Application. The User agrees and accepts that GreenSocks is the Intellectual Property of the Company and the User further warrants that by using GreenSocks the User will not:
(a) Copy GreenSocks or the services that it provides for the User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in GreenSocks or any documentation associated with it.
12.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to GreenSocks.
13 CONFIDENTIALITY
13.1 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
13.2 Each party acknowledges and agrees that:
(a) The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
(b) It owes an obligation of confidence to the Discloser concerning the Confidential Information;
(c) It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
(d) All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
(e) Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
13.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
(a) Any actual, suspected, likely or threatened breach by it of clause 13.1;
(b) Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
(c) Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
13.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
(a) Any actual, suspected, likely or threatened breach of a term of this Agreement; or
(b) Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
14 LIABILITY & INDEMNITY
14.1 The User agrees that it uses GreenSocks at its own risk. All content provided on GreenSocks is general advice only and GreenSocks makes no warranty as to completeness or accuracy.
14.2 The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances. In particular:
(a) Users acknowledge that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances; and
(b) Providers acknowledge that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstance.
14.3 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with GreenSocks, including any breach by the User of these Terms.
14.4 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use GreenSocks or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
14.5 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
15 BREACH
15.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) to the party in breach that must set out:
(a) The nature of the breach;
(b) The provisions of the Agreement that are alleged to have been breached;
(c) A reasonable timeframe to remedy the breach; and
(d) The action required to remedy the breach.
15.2 Where a party issues a compliant Breach Notice in accordance with clause 15.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
(a) The steps taken to remedy the breach; or
(b) Why the party believes it is not in breach as put forward in the Breach Notice,
(c) Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
15.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
16 TERMINATION
16.1 Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective five (5) Business Days after the date of the notice.
16.2 Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
(a) Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(b) Is insolvent within the meaning of section 95A of the Corporations Act;
(c) Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
i The debt to which the statutory demand relates is discharged within fifteen (15) Business Days of the date of the failure; or
ii The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
(d) Has an administrator appointed in respect of it;
(e) Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within fifteen (15) Business Days of the appointment;
(f) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(g) Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
(h) Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
16.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
16.4 The rights and obligations under the relevant provisions of clauses 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 19.6 survive termination of this Agreement.
17 DISPUTES
17.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
17.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within five (5) Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five (5) Business Days of notification of the dispute under Clause 17.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
18 FORCE MAJEURE
18.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
18.2 Following a notice of Force Majeure in accordance with clause 18.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
18.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
18.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
18.5 The term of this Agreement will not be extended by the period of Force Majeure.
19 ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
19.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
19.2 The User can direct notices, enquiries, and complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
19.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
19.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required by law to be physically delivered.
19.5 Notices must be sent to the parties’ most recent known contact details.
19.6 The User may not assign or otherwise create an interest in this Agreement.
19.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
20 GENERAL
20.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
20.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
20.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
20.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
20.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
20.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
20.7 Governing Law. The laws of Queensland govern this Agreement. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction in Queensland.
20.8 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END
