SureComply Terms and Conditions Advisory Services

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Table of Contents

1 DEFINITIONS
2 TERMS

2.1 Term

2.2 Termination by Notice

2.3 Not Affect Rights

3 APPOINTMENT OF CONSULTANTS

3.1 Request for Recommendation

3.2 Action on Receipt of a Request

3.3 Request to Proceed

3.4 Confirmation of Appointment

3.5 Contract Formed

3.6 Comply

3.7 Changes to Key Terms Schedule and Standard Terms and Conditions

3.8 No Separate Appointment

3.9 Clarifications

4 SURECOMPLY TECHNOLOGIES P/L ROLE AND WARRANTIES

4.1 Agent of Consultant

4.2 Invoicing

4.3 Indemnity

4.4 Acknowledgement of Benefits

5 SURECOMPLY TECHNOLOGIES P/L WARRANTIES AND LIMITATIONS

5.1 Warranties

5.2 Surecomply Technologies P/L not liable

5.3 No Merger

6 CONFIDENTIAL INFORMATION AND PRIVACY
6.1 Definitions
6.2 Surecomply Technologies P/L’s obligations
6.3 Exceptions
6.4 Personal and Health Information
6.5 Data Breach
6.6 Public Statements
6.7 Survival
7 NOTICE
7.1 Method
7.2 Receipt
7.3 Address of parties
8 GST
8.1 GST Definitions 12
8.2 Amounts otherwise payable do not include GST
8.3 Liability to pay GST
8.4 Tax Invoice
8.5 No Merger
9 OTHER PROVISIONS
9.1 Counterparts
9.2 Relationship of Parties
9.3 Subcontracting and Assignment
9.4 Variation
9.5 Severability
9.6 Waiver
9.7 Costs
9.8 Further Action
9.9 Entire Agreement
9.10 Consideration
9.11 Governing Law and Jurisdiction
9.12 Interpretation

Date of Agreement :

BETWEEN SURECOMPLY TECHNOLOGIES PTY. LTD (trading as OnePassport) of 215A Swan Street, Richmond, Victoria 3121
AND Organisation named in Service Order details
RECITALS  
A. Surecomply Technologies P/L has been appointed as the agent of certain consultants with experience and expertise relevant to the aged care sector. 
B. Organisation named in Service Order wishes to engage one or more consultants to provide services to Organisation named in Service Order.
C. Surecomply Technologies P/L and Organisation named in Service Order have agreed that Surecomply Technologies P/L will facilitate the contracting of consultants by Organisation named in Service Order and wish to set out processes for the establishment of such contracts and the terms and conditions that will apply to such contracts.

AGREEMENT

1. DEFINITIONS
In this Agreement (but, save as expressed to the contrary herein, excluding the schedules) the following words have the following meanings:
“Agreement” means this Master Agency Services Agreement between Surecomply Technologies P/L and Organisation named in Service Order;
“Claim” means a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement;
“Consultant” means a third party that has entered into an agreement with Surecomply Technologies P/L pursuant to which that third party appoints Surecomply Technologies P/L as its agent, including for any of the purposes referred to in clause 4.1;
“Commencement Date” means the date of this Agreement;
“Insolvent” means, in respect of a party:
 

 

 

(a)   the party is unable to pay its debts as and when they fall due;

(b)   the party proposes to compromise its debts with some or all its creditors;

(c)   a liquidator or administrator being appointed to the party

(d)   a receiver, receiver and manager or controller being appointed to the party or any of its assets;

(e)    the party entering into a deed of company arrangement;

(f)    the party proposing a scheme of arrangement with some or all of its creditors or members; or

(g)    the party becoming bankrupt or proposing to enter into a debt agreement or personal insolvency agreement in accordance with the provisions of the Bankruptcy Act 1966 (Cth);

“Key Terms Schedule” means a schedule in the form contained in Schedule 1 as amended from time to time in accordance with clause 3.7;
“Services Contract” means a contract between Organisation named in Service Order and a Consultant formed in the manner described in clause 3.5;
“Standard Terms and Conditions” means the terms and conditions detailed in Schedule 2 as amended from time to time in accordance with clause 3.7; and
“Term” means the term of this Agreement determined in accordance with clause 2.
2. TERM
1.1 Term
This Agreement shall commence on the Commencement Date and shall terminate on the fifth anniversary of the Commencement Date or such other date as the parties agree in writing.
1.2 Termination by Notice
Either party may terminate this Agreement:

 

 

 

(h)   without cause by giving no less than 90 days’ written notice of termination to the other party;

(i)     by notice in writing to the other party if the other party is or becomes Insolvent; or

(j)     by notice in writing to the other party if the other party commits a material breach of this Agreement and

(i)  the breach is not capable of being cured; or

(ii)  the breach is capable of being cured but is not cured within 30 days of receiving the notice of breach.

1.3 Not Affect Rights
Termination of this Agreement will not affect:

(k)     the continued operation and application of this Agreement in respect of any Services Contract that remains in force and of effect;

(l)     any accrued rights or remedies of either party; and

(m)    the continued operation, enforceability and effect of any Services Contract.  For clarity, each Services Contract is a separate and distinct contract between the Organisation named in Service Order and each relevant Consultant the terms of which will be unaffected by any termination of this Agreement.

3. APPOINTMENT OF CONSULTANTS
1.4 Request for Recommendation
During the Term, Organisation named in Service Order may request (“Request”) that Surecomply Technologies P/L recommend a Consultant to provide services specified by Organisation named in Service Order in its request (“Specified Services”).
1.5 Action on Receipt of a Request
Upon receipt of a Request, Surecomply Technologies P/L will:
 

 

 

(n)     advise Organisation named in Service Order whether or not it is able to recommend a Consultant to provide the Specified Services; and

(o)     if Surecomply Technologies P/L is able to so recommend, provide to Organisation named in Service Order, a completed Key Terms Schedule including the details of a recommended Consultant.

1.6 Request to Proceed
If, upon receipt of a Key Terms Schedule in accordance with clause 3.2(b), Organisation named in Service Order wishes to appoint the Consultant referred to in the Key Terms Schedule, Organisation named in Service Order must execute and deliver the Key Terms Schedule to Surecomply Technologies P/L.  Such delivery represents an offer by the Organisation named in Service Order to enter into a Services Contract with the Consultant.
1.7 Confirmation of Appointment
If the Consultant is agreeable to accepting the appointment, the Consultant, or Surecomply Technologies P/L on behalf of the Consultant, will execute the Key Terms Schedule delivered in accordance with clause 3.3 and deliver the executed Key Terms Schedule to Organisation named in Service Order.
1.8 Contract Formed
  Organisation named in Service Order acknowledges and agrees that upon execution and delivery of the Key Terms Schedule by, or on behalf of, the Consultant in accordance with clause 3.4, a contract between Organisation named in Service Order and the Consultant will be formed comprising the Standard Terms and Conditions and the Key Terms Schedule.
1.9 Comply
  Organisation named in Service Order agrees with Surecomply Technologies P/L that it will comply with the terms and conditions of any Services Contract formed in accordance with clause 3.5.
1.10 Changes to Key Terms Schedule and Standard Terms and Conditions
  Surecomply Technologies P/L may from time to time deliver to Organisation named in Service Order:
  (p)     a replacement form of the Key Terms Schedule and, from the date of such delivery, that replacement form of the Key Terms Schedule shall be deemed to be the Key Terms Schedule for the purposes of this Agreement; or

(q)    a replacement form of the Standard Terms and Conditions and, from the date of such delivery, that replacement form of the Standard Terms and Conditions shall be deemed to be the Standard Terms and Conditions for the purposes of this Agreement,

provided that, and for clarity, the delivery of any such replacement form will not alter the Key Terms Schedule or Standard Terms and Conditions applicable to any Services Contract formed in accordance with clause 3.5 prior to the date of such delivery.

1.11 No Separate Appointment
  Save with the written agreement of Surecomply Technologies P/L, Organisation named in Service Order agrees that it will not enter into any contract, agreement (including an employment agreement) or other arrangement (“Arrangement”) with:
  (r)     a Consultant recommended to Organisation named in Service Order, including in the manner referred to in clause 3.2(b), by Surecomply Technologies P/L in the six months preceding the date of commencement of such Arrangement; or

(s)    a Consultant (or any employee or subcontractor of a Consultant) who is, or has in the six months preceding the date of commencement of such Arrangement, been a party to a Services Contract with Organisation named in Service Order,

other than a Services Contract.

1.12 Clarifications
  The parties acknowledge and agree that:
  (t)    Surecomply Technologies P/L gives no warranties or guarantees as to whether a Consultant will agree to enter into a Services Contract with Organisation named in Service Order; and

(u)    documents may be executed, delivered and exchanged in accordance with this clause 3 by electronic means.

4. SURECOMPLY TECHNOLOGIES P/L ROLE AND WARRANTIES
1.13 Agent of Consultant
Surecomply Technologies P/L warrants to Organisation named in Service Order that in respect of each Consultant the subject of a Services Contract, that Consultant has appointed Surecomply Technologies P/L as its agent for the purposes of:
(v)    preparing any Key Terms Schedule on behalf of the Consultant;

(w)   executing any Key Terms Schedule on behalf of the Consultant;

(x)    entering into binding contracts on behalf of the Consultant in accordance with the Standard Terms and Conditions and any Key Terms Schedule;

(y)    invoicing the Organisation named in Service Order in respect of amounts payable to the Consultant pursuant to any Services Contract; and

(z)    receiving and receipting payments received from the Organisation named in Service Order pursuant to any Services Contract on behalf of the Consultant.

1.14 Invoicing
 

 

 

Surecomply Technologies P/L may render invoices to Organisation named in Service Order in respect of services provided by Consultants pursuant to Services Contracts.  Such invoices will:
(aa)    be in the name of Surecomply Technologies P/L and will bear Surecomply Technologies P/L’s Australian Business Number; and

(bb)    identify each Consultant to which the invoice relates and each amount payable in respect of that Consultant.

To the extent that any invoice identifies an amount payable to a Consultant, the invoice is, and will be deemed to be, delivered on behalf of the Consultant in respect of that amount. 

1.15 Indemnity
Where an invoice referred to in clause 4.2 has been paid in full by Organisation named in Service Order, Surecomply Technologies P/L will indemnify Organisation named in Service Order in respect of any Claim made against Organisation named in Service Order by a Consultant alleging a failure to pay the amount referred to in that invoice pursuant to the relevant Services Contract.
1.16 Acknowledgement of Benefits
Organisation named in Service Order acknowledges that Surecomply Technologies P/L will receive agency fees, management fees, service fees, commissions and/or other fees or payments from Consultants in respect of Surecomply Technologies P/L’s procurement of Services Contracts on behalf of the Consultant and in respect of other services provided by Surecomply Technologies P/L to, or on behalf of, Consultants.
5. SURECOMPLY TECHNOLOGIES P/L WARRANTIES AND LIMITATIONS
1.17 Warranties
Surecomply Technologies P/L warrants to Organisation named in Service Order that in respect of each Key Terms Schedule delivered by Surecomply Technologies P/L to Organisation named in Service Order in accordance with clause 3.4:

(cc)      where the Key Terms Schedule indicates that the relevant Consultant holds any qualification or registration required to perform the services referred to in that Key Terms Schedule, Surecomply Technologies P/L has taken reasonable steps to confirm that the Consultant holds that qualification or registration; and

(dd)      Surecomply Technologies P/L has sighted a Police Certificate that was issued not more than three years prior to the date of delivery of the Key Terms Schedule to the Organisation named in Service Order.

1.18 Surecomply Technologies P/L not liable
Organisation named in Service Order acknowledges and agrees that:

(ee)      any contract, agreement or arrangement (including any Services Contract) (“Contract”) formed with a Consultant in the manner contemplated by, or arising as a result of, this Agreement shall be a contract between Organisation named in Service Order and that Consultant and that Surecomply Technologies P/L shall not be, or be deemed to be, a party to that Contract;

(ff)      save as expressly set out in this Agreement, Surecomply Technologies P/L makes no representation and gives no warranties as to the likelihood or ability of any Consultant to comply with its obligations under any Contract;

(gg)      any act or omission of Surecomply Technologies P/L relating to any Contract will be deemed to be as agent of the relevant Consultant only; and

(hh)      Surecomply Technologies P/L shall not be responsible for the acts or omissions of any Consultant nor liable for any breach by a Consultant of any Contract and Organisation named in Service Order releases and forever discharges Surecomply Technologies P/L from all Claims arising therefrom.

1.19 No Merger
This clause shall not merge upon termination or expiry of this Agreement and shall continue in full force and effect thereafter.
6. CONFIDENTIAL INFORMATION AND PRIVACY
6.1 Definitions
In this clause 6, the following terms have the following meanings:
“Confidential Information” means information relating to the services, finances, staff and residents (including personal information) of Organisation named in Service Order and policies, regulatory reports and records and other information of, or relating to, Organisation named in Service Order, which by its nature, or by the circumstances of its disclosure to the holder of the information, is or could reasonably be expected to be regarded as confidential or private;
“Privacy Act” means the Privacy Act 1988 (Cth).
6.2 Surecomply Technologies P/L’s obligations
Surecomply Technologies P/L:
(a)    may use Confidential Information solely for the purpose of performing its duties and other actions contemplated by this Agreement;

(b)    save as provided in this clause 6:

       (i)     must keep Confidential Information confidential; and

       (ii)     may only disclose Confidential Information to persons who:

                (A)    have a need to know (and only to the extent that each has a need to know);

                (B)     are or may become a Consultant; or

                (C)    have been approved by Organisation named in Service Order.

6.3 Exceptions
Surecomply Technologies P/L’s obligations of confidentiality do not extend to information that:
(a)     is or becomes public knowledge (otherwise than as a result of a breach of this Agreement); or

(b)     is required by law to be disclosed.

6.4 Personal and Health Information
  Surecomply Technologies P/L agrees that in respect of “personal information”, including “health information” and “sensitive information” (as those terms are used in the Privacy Act) and other information relating to any resident or employee of Organisation named in Service Order (“Private Information”), it will, and will ensure that each of its employees does:
(a)     not disclose the Private Information to any third party other than as contemplated by clause 6.2;

(b)     comply with all requirements of the Privacy Act and any other laws pertaining to privacy in respect of the use and disclosure of Private Information; and

(c)     at all times treat Private Information as Confidential Information for the purposes of clause 6.2.

 6.5 Data Breach
  Without limiting clause 6.4, if in respect of any Private Information held by Surecomply Technologies P/L:
  (a)    there is unauthorised access to, or unauthorised disclosure of, the Private Information;

(b)    the Private Information is lost;

(c)    an “eligible data breach” occurs (as that term is used in the Privacy Act); or

(d)    any other event occurs involving the loss or unauthorised disclosure of, or unauthorised access to, the Private Information that a reasonable person would conclude would be likely to result in serious harm to any of the individuals to whom the Private Information relates,

          (each a “Data Breach”), Surecomply Technologies P/L must

          (i)     immediately advise Organisation named in Service Order, including reasonable details of the Data Breach and the Private Information involved;

          (ii)    co-operate with Organisation named in Service Order in relation to any notification or action required to comply with the requirements of the Privacy Act and otherwise to minimise the impact of the Data Breach; and

          (iii)   at its own cost, take all other actions, and follow all other directions, advised to it by Organisation named in Service Order.

6.6 Public Statements
  Surecomply Technologies P/L will not, without the prior written agreement of Organisation named in Service Order (which Organisation named in Service Order may in its absolute and unfettered discretion withhold) in any circumstances make any public statement or any statement to, or provide any information to, any form of media which may concern in any way Organisation named in Service Order, its staff or its residents.
6.7 Survival
  This clause 6 survives the expiry or termination of this Agreement.
7. NOTICE
7.1 Method
Any notice, consent, approval, demand, request, offer or other communication (each a “notice”) given by a party under this Agreement must be:
(a)    in writing;

(b)    directed to the recipient’s address (as specified in this clause or as varied by any notice); and

(c)    hand delivered, sent by prepaid mail or sent by email to that address.

7.2 Receipt
A notice given in accordance with this clause is taken as having been given and received:
A notice given in accordance with this clause is taken as having been given and received:
(a)    if hand delivered, on the day of delivery if a Business Day or otherwise on the next Business Day;

(b)    if sent by prepaid mail, on the fifth Business Day after the date of posting; and

(c)    if delivered by email, when the sender receives a delivery receipt confirming delivery to the recipient’s email system (but without requiring a “read receipt” confirming that the email has been read by the recipient),

provided that if the notice is received after 5.00pm or on a non-Business Day, the notice will be treated as having been delivered on the next Business Day.

7.3 Address of parties
Unless varied by notice in accordance with this clause, the parties’ addresses and facsimile numbers are:
Party:      Surecomply Technologies P/L

Attention:       Michael Maher

Address:       215A Church St, Richmond, Victoria 3121

Email:      [email protected]

Party:      Organisation Named in Service Order

7.4 GST Definitions
  For the purpose of this clause 8:
(a)    “GST” means GST within the meaning of the GST Act;

(b)    “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth); and

(c)    expressions set out in italics in this clause 8 bear the same meaning as those expressions in the GST Act.

 7.5 Amounts otherwise payable do not include GST
  To the extent that a party makes a taxable supply in connection with this Agreement, except where express provision is made to the contrary, and subject to this clause, the consideration payable by a party under this Agreement represents the value of the taxable supply for which payment is to be made.
7.6 Liability to pay GST
Subject to the delivery of a tax invoice, if a party makes a taxable supply in connection with this Agreement for a consideration which, under clause 8.2 represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
7.7 Tax Invoice
A party’s right to payment under clause 8.3 is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
7.8 No Merger
  This clause 8 will survive termination of this Agreement and will continue to bind the parties notwithstanding any such termination.
8. OTHER PROVISIONS
8.1 Counterparts
This Agreement may be executed in any number of counterparts and all such counterparts taken together will constitute one instrument.  Counterparts may be executed and exchanged electronically.
8.2 Relationship of Parties
This Agreement does not create a relationship of employment, agency or partnership between the parties or between Organisation named in Service Order and any Consultant. 
8.3 Subcontracting and Assignment
No party (“contracting party”) may assign, transfer or subcontract any of its rights or obligations under this Agreement without the prior written consent of the other party (which the other party must not unreasonably withhold). 
8.4 Variation
This Agreement may only be altered or modified in writing signed by all parties.
8.5 Severability
Part or all of any clause of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
8.6 Waiver
  Waiver of any power or right under this Agreement:
(a)     must be in writing signed by the party entitled to the benefit of that power or right; and

(b)     is effective only to the extent set out in that written waiver.

 8.7 Costs
  Each party must bear its own legal and other costs for the preparation and execution of this Agreement.
8.8 Further Action
Each party must do or cause to be done all such things necessary or desirable to give full effect to the Agreement.
8.9 Entire Agreement
This Agreement:

(a)    constitutes the entire agreement between the parties in relation to any matter dealt with in the Agreement; and

(b)     supersedes any earlier agreement or understanding between the parties and any earlier condition, warranty, indemnity or representation imposed, given or made by a party, in relation to that subject matter.

8.10 Consideration
  The parties acknowledge and agree that the mutual rights and obligations of the parties created by this Agreement, and the intended or potential benefits to each of the parties of the transactions contemplated by it, constitute good and sufficient consideration for the formation of a contract between them.
8.11 Governing Law and Jurisdiction
  This Agreement will be governed by and construed in accordance with the laws in force in the State of Victoria and the parties submit to the exclusive jurisdiction of the courts of Victoria.
8.12 Interpretation
  In this Agreement, unless the context requires otherwise:

(a)     headings are for convenience and do not affect interpretation;

(b)     the singular includes the plural and vice versa;

(c)     words denoting any gender include all genders;

(d)     where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(e)     a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure of this Agreement;

(f)     a reference to any document or agreement includes reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;

(g)     a reference to “$”, “$A” or “dollar” is a reference to Australian currency;

(h)     a reference to a time or date in connection with the performance of an obligation is a reference to the time or date in the State, Territory or other place where that obligation is to be performed;

(i)     no rules of construction apply to the disadvantage of a party because that party was responsible for the preparation of this Agreement or of a part of this Agreement;

(j)     a reference to a party includes its executors, administrators, successors and permitted assigns;

(k)     “include”, “includes” and “including” are not words of limitation;

(l)     words and expressions denoting natural persons include bodies corporate, partnerships, associations, governments and governmental authorities and agencies and vice versa; and

(m)     a reference to any legislation, statutory instrument or regulation shall be a reference to such legislation, statutory instrument or regulation as amended or replaced from time to time and must be construed in accordance with the Acts Interpretation Act 1901 (Cth) (or the equivalent State legislation, as applicable).