The Candidate has engaged Chef Skills Victoria Pty Ltd (ACN 165 892 286) (the CSV)to provide the Services.By engaging CSV to provide the Services, continuing to instruct CSV or making payment towards the Services, you accept the terms and conditions of this Agreement.
The following words have these meanings in these Terms and Conditions unless the contrary intention appears:
Agreement means these Terms and Conditions, including any annexure, the Particulars of Agreement, and Candidate Information Sheet;
Business Day means any day excluding Saturday, Sunday, a public holiday in Victoria;
Candidate means the person described in the Candidate Information Sheet attached hereto;
Commencement Date means Item 1 of the Particulars of Agreement;
Confidential Information means any information that is:
(a) Information, ideas, forms, specifications, processes, statements, formulae, trade secrets, drawings and data (and copies and extracts made of or from that information and data) that is not in public domain is considered confidential information; and
(b) confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information;
Fee means the fees set out in the Particulars of Agreement;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by CSV in the provision of the Services;
Payment Method means the payment method specified in Item 2 of the Particulars of Agreement;
Services means the services specified in Item 3 of the Particulars of Agreement or as agreed between the Parties from time to time.
In this Agreement:
(a) references to a person include an individual, form or a body, whether incorporated or unincorporated;
(b) clause headings are for references only and shall not form part of this Agreement nor used in the interpretation of this Agreement;
(c) if the time of doing an act or thing under this Agreement falls on a day which is not a Business Day, then the time of doing that act or thing shall be deemed to be the next Business Day;
(d) words in the singular include the plural and vice versa in accordance with the context of which that word is used;
(e) words importing a gender include other genders;
(f) a reference to a clause is a reference to a clause in this Agreement;
(g) a reference to any of the words ‘include’, ‘includes’ and ‘including’ is to be read as if followed by the words “without limitation”;
(h) a reference to a statute, ordinance, code or law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;
(i) a reference to any party includes thatparty’s executors, administrators, substitutes, successors and permitted assigns; and
(j) each party has participated in the negotiating and drafting of this document and in the event of ambiguity or a question of interpretation arising, this Agreement is to be construed as if the Agreement was drafted jointly.
2.1. Commencing the Services
(a) CSV will commence the Services on the Commencement Date or as agreed by the parties from time to time.
The Candidate agrees to pay the Fee in accordance with the Payment Method.
3.2. Payment Plan
Where CSV has offered the Candidate a payment plan, and the Candidate has accepted the payment plan, the Candidateagrees to sign all documents and do all things necessary at the request of CSV for CSV to secure the Fee. This includes the Candidate agreeing to any Third party merchant banking facility, direct debit facility and/or any other service provided (the Third Party Gateway).
Where CSV uses a Third Party Gateway to facilitate the payment plan, the Candidate agrees to the terms and conditions of the Third Party Gateway.
3.3. Goods and Services Tax
Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with this Agreement and/or the Particulars of Agreement, are listed in Australian Dollars (AUD) and are GST inclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts. Where the services are provided outside Australia, GST is inapplicable.
4.1. Provision of Information
CSV will from time to time request information from you. Upon request for information, you will use reasonable endeavours to provide that information within 7 days or as stated by CSV. In the event you fail, refuse or neglect to provide the requesting information to CSV within 7 days or the period of time greater than 7 days nominated by CSV, CSV may terminate this Agreement on grounds of your breach of this clause and render its tax invoice for the entire Stage Service. If a tax invoice is issued pursuant to this clause, that tax invoice and due and payable within 7 days.
4.2. Overdue accounts
Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% per annum.
The Candidate agrees to pay all costs and expenses (including legal costs, commissions paid by CSV to any commercial or mercantile agent and dishonor fees) incurred by CSV in connection with the recovery of overdue amounts.
4.3. Credit Reporting
If the Candidate does not pay for the Services in accordance with this Agreement, CSVmay proceed to recover the debt from the Candidate without further notice and report the debt to a credit reporting agency.
If CSVinitiates debt recovery action against the Candidate, the Candidate agrees to be liable for all debt collection costs which includes any legal costs (on an indemnity basis), collection agency costs and any other expenses or disbursements, including but not limited to, Land and Property Information searches, Australian Securities and Investment Commission searches, process server fees, Expert Reports and court/tribunal fees. You will also be liable to pay Interest on the outstanding debt.
4.4. Credit Check
By accepting this Agreement, the Candidate warrants that the Candidate has a positive credit history and the Candidate acknowledges and agrees that CSV may, at their sole discretion, undertake a credit check on the Candidate to confirm this. In the event that it is found that the Candidate has breached the above warranty contained in the above clause, this will be regarded as a breach of this Agreement and will provide cause for immediate termination of this Agreement by CSV.
5.1. Intellectual Property Rights
(a) The Candidaterecognises that all Intellectual Property is the property of CSV and the Candidate will take all such steps as practicable to ensure that the Intellectual Property will vest in and remain vested in CSV.
(b) CSV warrants that CSV owns the Intellectual Property Rights in the Intellectual Property delivered to the Candidate in the provision of the Services.
(c) CSV grants to the Candidate a non-exclusive licence to use the Intellectual Property solely for the purposes expressed in the Services and only subject to the Candidate making full payment of the Fees.
6.1. For the Candidate
(a) If the Candidate terminates this Agreement for reasons other than a breach of this Agreement by CSV, the Candidate will pay CSVthe full Fee for the Stage of Service for which the Candidate engaged CSV to perform, regardless whether all or part of the Stage Services were performed.
6.2. For CSV
(a) CSV may terminate this Agreement by providing 14 days written notice to the Candidate of CSV’s intent to terminate this Agreement. Upon issuance of this notice, CSV may suspend all Services effective immediately.
(b) CSV may terminate this Agreement for a breach by the Candidate of this Agreement by providing 14 days’ written notice of the breach to the Candidate. During the 14 day notice period, the Candidatehas the right to remedy the breach. If the Candidate remedies the breach which was the cause of the notice, this Agreement will not be terminated at the lapse of the 14 days on the notice’s basis.
7.1. General Disclaimer
(a) Nothing in this Agreement limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
(b) CSV limits all its direct and indirect liability (including in negligence) to the Candidate to the Consumer Guarantees under the Australian Consumer Law.
(c) Where there is a breach of the Consumer Guarantees, then to the maximum extent permitted by law, CSV’s liability to the Candidate is limited to resupply of the Services or refund of the most recent instalment payment paid by the Candidate to CSV, at CSV’s election.
(d) Subject to this clause and to the extent permitted by law:
(i) CSV excludes all representations, warranties or guarantees, whether express or implied, by statute, trade or otherwise;
(ii) CSV will not be liable for any claims, causes of action, damage or expenses arising out of or in connection with the Services (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, in equity, pursuant to statute, or otherwise;
(iii) CSV excludes any liability which touch or concern any representation that CSV has provided accounting, tax, legal, migration or recruitment services (the Professional Services) and under no circumstances does CSV represent that it provides the Professional Services, and if it is deemed that CSV has provided the Professional Services, then the Candidate warrants that it has not and will not rely upon those Professional Services.
7.2. Limitation of liability
(a) CSV’s total liability arising out of or in connection with the Services or this Agreement, however arising, including at law, in equity, under statute, or otherwise, will not exceed the resupply of the Service to the Candidate, or a refund of the last instalment payment made by the Candidate, at CSV’s election.
(b) The Candidate expressly understand and agree that CSV will not be liable to the Candidate for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Candidate, however caused and under any theory of liability.
(c) The Candidate expressly understand and agree that CSV will not be liable to the Candidate for the Candidate’s use of the information in the Services.
(a) The Candidate hereby indemnifies CSV from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with:
(i) inaccurate or misleading information provided by the Candidate or the Candidate’s agent;
(ii) a claim that the Services include any accounting, tax, legal or migration services including without limitation the Professional Services; or
(iii) any breach of this Agreement
(b) This indemnity will survive termination of the Agreement.
8.1. Disclosure and Use of Confidential Information
(a) All obligations of confidence set out in this Agreement continue in full force and effect after termination.
(b) CSVmay disclose any of the Candidate’s personal information to a third party in the provision of the Services without prior consent of the Candidate.
(c) Each party must keep confidential the terms of this Agreement. If a party becomes aware of a breach of this obligation, that party will immediately notify the other party.
(d) The Candidate must not use any Confidential Information without the prior consent of CSV.
8.2. No partnership or agency
Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
8.3. Governing Law & Jurisdiction
(a) This Agreement is governed by the laws of Victoria, Australia.
(b) In the event of any dispute arising out of or in relation to the Services, CSV agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in Melbourne, Victoria, Australia.
8.4. Dispute Resolution & Mediation
(a) If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) A party to this Agreement claiming a dispute (the ‘Dispute’) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the ‘Notice’).
(c) On receipt of the Notice by the other party, the parties to this Agreement (the ‘Parties’) must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(d) If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by an independent third party or his or her nominee and attend a mediation.
(e) It is agreed that mediation will be held in Melbourne, Victoria, Australia.
(f) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
(g) All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.
(h) If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
(i) In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
(a) The Candidate agrees that it willnot delegate, assign, novate any part or right or duty arising from the Agreement any person or entity without CSV’s written consent.
(b) CSV may delegate, assign, novate any part or right or duty arising from the Agreement any person or entity at any time, without notice or consent.
8.7.Entire Agreement and Modifications
(a) Both the Candidate and CSV confirm and acknowledge that:
(i) this Agreement shall constitute the entire agreement between CSV and the Candidate and shall supersede and override all previous communications, either oral or written, between the parties;
(ii) no agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
(iii) if for whatever reason there is inconsistency between this Agreement and any other agreement, this Agreement shall prevail.