General Terms and Conditions
Recitals
- The Principal and the Contractor are parties to the Cachet Care Contract.
- The Principal has elected to join the Cachet Care Program to receive ongoing facilities management services provided by the Contractor.
- These Terms and Conditions must be read in conjunction with the Cachet Care Contract.
1. Definitions and Interpretation
- Under these Terms and Conditions and the Cachet Care Contract, defined terms have the following meaning:
Business Day means a day that is not a Saturday or Sunday, or a public holiday in the place where the Service is to be done.
Cachet Care Contract means the contract and associated schedule (Cachet Care Contract Schedule) entered into between the Principal and Contractor for the purpose of the commencement of the Cachet Care Program.
Cachet Care Program means the provisions of these Services as agreed to between the Principal and Contractor under the Cachet Care Contract.
Confidential Information means:
- the Intellectual Property;
- any and all information relating to any of a Party’s customers, including but not limited to contact details, organisational structure, or pricing details;
- all calculations, computer programs, designs, drawings, diagrams, flow charts, manuals, materials, notes, prototypes, specifications, know-how, or any other written or verbal information relating to a Party, or any of its goods, procedures, processes, or services;
- all business and financial information, business listings, customer and supplier listings, databases, marketing strategies, sales and supplier listings, and any other information relating to a Party, its customers, or suppliers;
- any other information that would at law be considered secret or confidential information of a Party, whether or not marked confidential, but does not include information which:
- at the time of first disclosure by a Party under these Terms and Conditions is already in the public domain; or
- after disclosure by a Party under these Terms and Conditions, becomes part of the public domain otherwise than by disclosure in breach of these Terms and Conditions; and
- a Party can prove that the information was in its possession before the time of first disclosure by the other Party under these Terms and Conditions.
Commencement Date means the date that the Parties have agreed to start the Services under the Cachet Care Contract Schedule.
Documents means any document governing the provision of the Services by the Contractor to the Principal, and includes:
- these Terms and Conditions;
- the Cachet Care Contract; and
- any other agreement, in writing, between the Contractor and the Principal.
Force Majeure Event means an event beyond the reasonable control of the Parties, including blockage, civil commotion, unavoidable accident, trade restriction, war, epidemic, pandemic, or any action or restriction imposed by any government or statutory body that delays or prevents a Party’s compliance with a relevant obligation.
GST means any tax imposed on the supply of goods or services, consumption or value-added tax, including without limitation any tax imposed in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (Australia) or the Goods and Services Tax Act 1985 (New Zealand) and any related legislation.
Initial Term means the period from the Commencement Date until the expiry of 24 calendar months.
Intellectual Property means:
- the Confidential Information;
- the Contractor’s designs, diagrams, directions, drawings, instructions, manuals, materials, prototypes, and specifications of any kind relating to the Cachet Care Program or any of its goods, procedures, processes, or services; and
- all copyright, design rights, know-how, patent rights, and trademark rights owned by or licensed to the Contractor as at the Commencement Date and in the future, and in any improvement, modification, or variation.
Liabilities means any action, claim, cost, damage, demand, expense, fee, liability, liquidated damages, loss, or penalty of any kind whatsoever.
Party means either the Contractor or the Principal.
Parties mean the Contractor and the Principal.
Principal means the Principal under the Cachet Care Contract Schedule.
Program Fees means the total fees for access to the Cachet Care Program as calculated under the Cachet Care Contract Schedule.
Representative means any employee, officer, agent, or contractor of the Contractor.
Services means the services provided as part of the Cachet Care Program as described under Schedule A of the Cachet Care Contract.
Site means any location, premises, or property at or on which the Contractor provides or is to provide the Services.
Term means the duration of the provision of services and includes the Initial Period (Schedule Item 5) or any subsequent term of 12 months.
General Terms and Conditions means these general terms and conditions.
- When interpreting these Terms and Conditions:
- Headings are for convenience only and do not affect the interpretation of these Terms and Conditions;
- The singular includes the plural and the plural includes the singular;
- Anything required to be done on a day that is not a Business Day may be done on the next Business Day;
- Reference to a person includes a natural person, corporation, partnership, association, or other legal entity;
- Reference to legislation includes that legislation as amended, modified, or re-enacted; and
- Reference to a provision or clause means a provision or clause in these Terms and Conditions
2. Application
- Unless otherwise agreed in writing, these Terms and Conditions cannot be varied or replaced by any other terms or conditions.
- These Terms and Conditions are to be read and construed in conjunction with the Cachet Care Contract.
- Where there is an inconsistency between any of the Documents, the terms set out in the Documents will prevail in the following order of priority:
- the Cachet Care Contract;
- any other agreement, in writing, between the Principal and the Contractor; and
- these Terms and Conditions.
- The Principal acknowledges and agrees that any departures from Schedule A (Services) may be necessary to accommodate unique circumstances or requests from the Principal. Such departures:
- must be documented in writing and signed by both Parties;
- may result in additional fees or adjusted timelines; and
- shall be communicated by the Contractor prior to implementation.
3. Term
- These Terms and Conditions will continue for the Term or until terminated in accordance with clause 12.
- At the end of the Term, these Terms and Conditions will automatically renew for an additional Term.
4. Engagement
- During the Term:
- the Principal is a member of the Cachet Care Program; and
- the Contractor agrees to provide the Services under the Cachet Care Program to the Principal.
- The Contractor agrees to provide reasonable notice to the Principal of any material change to the Cachet Care Program. Any other change to the Cachet Care Program will be notified to the Principal in accordance with these Terms and Conditions.
- The Principal must use its best endeavours to plan and notify the Contractor of any material additions or variations at the Site, to enable the Contractor to arrange the necessary resources for the provision of the Cachet Care Program. The Principal acknowledges that any failure to notify the Contractor of material additions, variations or changes at the Site that impact the Services may result in additional costs or delays.
5. Costs and Expenses
- The Contractor is entitled to recover all costs incurred on behalf of the Principal, when the Contractor determines in good faith, that a cost must be incurred immediately in order to:
- comply with applicable law;
- protect the Site or any portion thereof;
- avoid accident or injury to persons; or
- avoid default under a lease relating to the Site.
- The Contractor is required to advise the Principal within 48 hours of any cost incurred under clause 5.1.
6. Payment to the Contractor
- In consideration for the Contractor providing the Cachet Care Program to the Principal, the Principal must pay the Program Fees as provided in Cachet Care Contract Schedule to the Contractor upfront on the first day of every calendar month or as otherwise agreed between the parties.
- The parties agree that the Principal will be liable to pay 5% interest on any overdue payments, calculated from the due date until the date of payment.
7. Price Reviews
- In this clause “CPI” means the weighted average of the All Groups Price Index Numbers for the eight capital cities of the states and territories of Australia published from time to time by the Australian Bureau of Statistics or, if that index number is no longer published, its substitute as a cumulative indicator of the inflation rate of Australia.
- On the 1st day of January every year, the Contractor may increase the Program Fees (exclusive of GST) proportionately to the increase in CPI during the previous calendar year.
- The Contractor reserves the right to implement other reasonable fee adjustments where costs increase due to unforeseen events, regulatory changes, or any documented rise in the cost of material or labour. Such adjustments will be communicated with the Principal in writing at least 30 days in advance.
8. The Contractor’s Obligations
- The Contractor warrants to the Principal that:
- the Contractor; and
- any Representative, has the experience, expertise, and qualifications appropriate to provide the Services.
- During the Term the Contractor must, and must ensure that any Representative providing Services must:
- always act in the Principal’s best interests;
- provide the Services with due care and skill, and in a proper and workmanlike manner; and
- not make any false or misleading representations about the Services.
- In its occupation of any Site the Contractor must ensure that any Representative acting for or on its behalf must:
- not allow, authorise or enable access to any non-public areas of the Site to any unauthorised person;
- not prevent or restrict, for any substantial period, the use of the Site or any facilities on the Site by the owner or tenant of the Site; and
- comply with any lawful directions given by the Principal or the owner or tenant of the Site.
- The Contractor reserves in its absolute discretion to maintain its complement of Representatives and may make amendments to the Representatives at any time.
9. Relationship
- The Contractor is an independent contractor and no relationship of agency, employment or partnership exists or will exist between the Contractor and the Principal.
- The Principal and Contractor mutually agree that, during the term of these Terms and Conditions and for a period of 12 months following its termination or expiration, neither Party shall, directly or indirectly, solicit, recruit, hire or attempt to hire any employee, consultant, or contractor of the other Party without prior written consent.
- In addition to clause 9.2 above, the Principal specifically agrees not to:
- solicit, recruit, or engage any employees, consultants, or contractors of the Contractor for employment or engagement, whether directly or through a third party;
- induce or attempt to induce any employees, consultants, or contractors of the Contractor to terminate their engagement or cease providing services to the Contractor; and
- circumvent these Terms and Conditions by engaging contractors or employees of the Contractor through intermediaries or related entities.
10. Intellectual Property
- The Principal has no proprietary right or interest in the Intellectual Property, or any part of it, other than to the extent that may be granted to it by the Contractor under these Terms and Conditions or another agreement between the Parties.
- The Contractor agrees that it grants the Principal a royalty-free, non-exclusive, and non-transferable license to use any Intellectual Property owned or controlled by the Contractor, solely for the purpose of fulfilling the Principal’s obligations under this Agreement. Such license shall be limited to the duration of the Agreement and may be revoked by the Contractor at any time, subject to any applicable terms and conditions.
- Other than pursuant to these Terms and Conditions or another agreement between the Parties, the Principal must not at any time during the Term or after termination, use, deal with, commercialise, disclose, exploit, or take advantage of the Intellectual Property or any part of it.
11. Confidential Information
- Each Party must, unless otherwise agreed by the Parties in writing, in relation to the Confidential Information:
- use it only for the purposes of performing its obligations under these Terms and Conditions;
- keep it confidential, including after termination of these Terms and Conditions, unless disclosure is required by law;
- not disclose it to any other person other than those who have a need to know for the purposes of these Terms and Conditions (and only to the extent that each such person has a need to know), and who have first been directed, and agreed, to keep it confidential;
- not copy, document, photograph, record, retain or store it or any part of it that is in material form other than as strictly necessary for performance of their obligations under these Terms and Conditions;
- safeguard it against unauthorised copying, use or disclosure;
- on request from the other Party, immediately return it to the requesting Party (including all copies of it);
- notify the other Party immediately of any actual or suspected unauthorised disclosure or use; and
- comply with any reasonable direction issued by the other Party regarding any actual or suspected breach.
- An obligation of confidentiality under these Terms and Conditions does not apply to information that is required to be disclosed by law.
12. Termination
- The Contractor may terminate the Cachet Care Program by providing the Principal 1 months’ notice.
- The Principal may only exit the Cachet Care Program and terminate these Terms and Conditions at the end of the Term by providing the Contractor 3 months’ notice prior to end of the Term.
- Termination of the Cachet Care Program does not relieve a Party of a liability to the other Party in respect of the rights or remedies of the other Party which have accrued prior to termination.
- Notwithstanding clause 12.1 above, the Contractor retains the right to pause or suspend Services immediately if:
- the Principal fails to comply with any obligations, including the payment of the Program Fees; or
- the Contractor reasonably determines that the Principal’s actions or omissions are impairing its ability to deliver the Services effectively.
- The Principal recognises that:
- the Contractor has allocated resources for the Term; and
- allocates resources for subsequent Terms in advance, in order to provide the Services to the Principal, and it is for this reason that in the event where the Principal elects to terminate the Cachet Care Program without sufficient notice required under clause 12.2 of these Terms and Conditions, then the Principal shall pay a termination fee equivalent to the Program Fees for the remainder of the current Term, plus the Program Fee for the subsequent Term. This termination fee reflects the Contractor’s pre-allocation of resources and financial commitments made in reliance on the Principal’s participation in the Program.
13. Liabilities and Indemnities
- The Principal indemnifies and keeps the Contractor indemnified from and against any and all Liabilities arising from or in relation to any act or omission of the Contractor or the Contractor’s Representatives under these Terms and Conditions.
- To the maximum extent permitted at law, the Contractor is not liable to the Principal for any consequential or indirect damage or loss claimed by the Principal howsoever arising, including but not limited to liquidated damages of any kind, loss of business, loss of an opportunity or loss of profits.
- Nothing in these Terms and Conditions is to be interpreted as excluding, restricting or modifying, or having the effect of excluding, restricting or modifying, the application of any legislation applicable to the supply of the Cachet Care Program and related Services.
- To the maximum extent permitted at law, the Principal indemnifies the Contractor for any and all claims, damages or liabilities arising from the Site, including but not limited to those relating to compliance with the Work Health and Safety Act 2011 (Cth) (for Australian jurisdiction), Health and Safety at Work Act 2015 (for New Zealand jurisdiction), environmental hazards, structural integrity, or any third-party claims due to the Site conditions. The Principal shall remain solely responsible for ensuring the Site complies with applicable laws and safety standards.
14. Dispute Resolution
- If a dispute or difference (together called a ‘dispute’) between the Parties arises in connection with the subject matter of the Cachet Care Program then either Party may give the other a written notice of dispute identifying and containing details of the dispute. Notwithstanding the existence of a dispute, the Parties will continue to perform the Cachet Care Program.
- Within 7 days after receiving a notice of dispute, the Parties must confer at least once to resolve the dispute or to agree other methods of doing so. If the dispute has not been resolved within 30 days of service of the notice of dispute, the parties may proceed to litigation.
- Nothing in this clause prejudices the right of a Party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.
15. Force Majeure
- Subject to this clause 15, neither the Consultant nor the Principal is liable to each other in any way relating to a delay or failure in performing an obligation under these Terms and Conditions to the extent it is prevented from acting by a Force Majeure Event.
- Nothing in this clause 15 operates to excuse a Party from an obligation to pay money.
- A Party seeking to rely on clause 15.1 must:
- as soon as reasonably practicable after that Force Majeure Event arises, notify the other Party of the Force Majeure Event and an estimate of its duration;
- ensure it has taken all proper precautions, due care and reasonable alternative measures to avoid the delay or failure and to carry out its obligation;
- use all reasonable endeavours to overcome the effects of the Force Majeure Event;
- unless otherwise agreed by the Parties in writing, comply with any affected obligation upon the earlier of the end of the Force Majeure Event or such other time as compliance with the obligation is possible; and
- outline the specific nature of the Force Majeure Event and, as far as possible, an estimate of its duration.
16. Assignment
- Neither Party may assign any obligations or rights under the Cachet Care Program including under these Terms and Conditions, the Cachet Care Contract, or any other written agreement relating to the Cachet Care Program without the prior, written consent of the other Party.
17. Parties Must Do What is Necessary
- Each Party must do whatever is necessary to give full effect to these Terms and Conditions including, where necessary, the carrying out of an act or the execution of a document.
- If a Party does not do whatever is necessary to give full effect to these Terms and Conditions after being requested to do so, that Party irrevocably appoints the other Party as its attorney and in its name to do all things necessary (including execution of documents) to give full effect to these Terms and Conditions.
18. Costs
- Each Party bears its own costs, including but not limited to accounting and legal costs, associated with or incurred in respect of the negotiation, preparation and execution of these Terms and Conditions.
19. Severability
- If a provision (or part of it) of these Terms and Conditions is held to be unenforceable or invalid, then it must be interpreted as narrowly as necessary to allow it to be enforceable or valid.
- If a provision (or part of it) of these Terms and Conditions is held to be unenforceable or invalid and cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and Conditions and the remaining provisions are (or remaining part of the provision is) valid and enforceable.
20. Governing Law and Jurisdiction
- If the Services are performed within Australia, all references to legislation, regulations and standards shall be interpreted according to the law governing Australia, including any relevant state and territory legislation and any other applicable Australian laws.
- If the Services are performed within New Zealand, all references to legislation, regulations and standards shall be interpreted according to the law governing New Zealand, including any relevant state legislation and other applicable New Zealand laws.
- In the event that any aspect of these Terms and Conditions conflicts with the applicable legislation in either Australia or New Zealand, the relevant legislation shall take precedence to the extent of the inconsistency, and the Contractor shall not be deemed in breach of these Terms and Conditions for adhering to such legislation.
21. Amending These Terms and Conditions
- To the extent the law allows, the Contractor may amend the Terms and Conditions from time to time by way of written notice to the Principal. Amendments will take effect 14 days after the notice unless the Principal raises a valid objection in writing within this period. Continued use of the Services beyond this period constitutes acceptance of the amended Terms and Conditions.
22. Entire Agreement
- This is the entire agreement of the Parties concerning the subject matter of these Terms and Conditions.
23. Waiver
- A Party may exercise its rights at any time, and does not waive those rights even if that Party:
- previously waived a breach or default of all or part of the same or other provision of these Terms and Conditions; or
- delayed or omitted to exercise its rights.
- A waiver is only effective:
- if it is signed by the Party granting the waiver; and
- to the extent set out in the waiver.
24. Time
- Time is of the essence, and each Party must comply with and perform its obligations strictly on time.
25. Notices
- Any notice given by a Party to the other Party under the terms of these Terms and Conditions must be in writing, in English, and sent to the other Party by way of email or registered mail.
- The Contractor may also provide notices to the Principal of updates posted on its website, or available by email to the Principal at the email address provided to the Contractor from time to time.
- A notice given on a day which is not a Business Day is treated as given on the next Business Day.
