THE PARTIES AGREE as follows:
- Definitions and Interpretation
In this Agreement, unless the contrary intention appears:
“Agreement” means this Services Agreement.
“Authorised Person” means in relation to a party:
(a) the directors, secretary and any other person appointed to act as an authorised officer of that party;
(b) the employees of that party;
(c) the legal, financial and other advisers of that party; and
(d) the respective officers and employees of those legal, financial and other advisers.
“Charges” means the amounts specified in the Order payable by the Customer to Vision Trak Rentals for the provision of the Services.
“Commencement Date” means the date specified at the commencement of this Services Agreement.
“Confidential Information” means all Information designated as confidential by the Disclosing Party which is disclosed to or acquired by the Receiving Party or the Receiving Party’s Authorised Persons before or after the date of this agreement, whether orally, in writing or in electronic or machine readable form but does not include Information that:
(a) the Receiving Party can prove by contemporaneous written documentation was in the lawful possession of the Receiving Party before the Disclosing Party had any dealings with the Receiving Party or was independently generated by the Receiving Party or on its behalf;
(b) is in the public domain otherwise than as a result of a breach of this agreement or any other obligation of confidentiality owed to the Disclosing Party; or
(c) was legally and properly obtained by the Receiving Party from any other source without restriction on further disclosure.
“Content” means the content of the Website through which part of the Services are supplied including vehicle tracking history, tracking reports, locations of vehicles and as otherwise specified on the Website.
“Customer” means the customer specified in the Order.
“Customer Representative” has the same meaning as in clause 4.1.
“Deposit” means the deposit (if any) paid pursuant to the Order.
“Disclosing Party” means a party who discloses its Confidential Information to the Receiving Party.
“Documentation means any documentation for the Services provided to the Customer by Vision Trak Rentals from time to time.
“GPS” has the same meaning as in clause 4.9.
“Independent Service Providers” has the same meaning as in clause 12.3.
“Insolvency Event” means in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors, or in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or, in relation to a body corporate or an individual, the occurrence of any event that has a substantially similar effect to any of the above events.
“Interest” means the rate of 2% per annum above the base lending rate of the National Australia Bank.
“Order” means the Sales Order Form signed by Customer which incorporates the terms and conditions of this Agreement.
“Personal Information” means personal information (as defined in section 6 of the Privacy Act 1988 (Cth)) which is collected, stored or handled by or on behalf of either party pursuant to this Agreement.
“Privacy Laws” means the Privacy Act 1988 (Cth), including any amendments, and the Australian Privacy Principles.
“Receiving Party” means a party who receives the Confidential Information from or on behalf of the Disclosing Party.
“Renewal Term” or “Renewal Terms” has the same meaning as in clause 2.6.
“Service Plan” means the service plan, if any, specified in an Order.
“Services” means the Vision Trak Rentals services specified in the Order.
“Suspension Notice” means a written notice from Vision Trak Rentals to the Customer which sets out any outstanding amounts payable to Vision Trak Rentals under an Agreement and that Vision Trak Rentals will have the right to suspend its provision of Services if the outstanding amounts specified in the Suspension Notice are not paid in full within five Business Days of the date of the Suspension Notice.
“Term” means the term of this Agreement stated in clause 2.4.
“Termination Date” means the date an agreement under clause 2.2 is terminated or expires.
“Third Parties” has the same meaning as in clause 20.1.
“Website” means the Vision Trak Rentals website located at www.visiontrakrentals.com.au.”
In this agreement, headings are inserted for convenience only and do not affect the interpretation of this agreement, and unless the context otherwise requires:
- words importing the singular include the plural and vice versa;
- words importing a gender include the other genders;
- if words or phrases are defined, their other grammatical forms have a corresponding meaning;
- a reference to:
- a person includes an individual, a partnership, a body corporate, a joint venture, an association (whether incorporated or not), a government and a government authority or agency;
- a party includes the party’s executors, legal personal representatives, successors, transferees and assigns;
- this agreement includes the recitals and any schedules, annexures, exhibits or attachments to this agreement;
- unless indicated otherwise, “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars;
- legislation includes any statutory modification or replacement and any subordinate or delegated legislation issued under that legislation; and
- a law includes any statute, regulation, by-law, scheme, determination, ordinance, rule or other statutory provision (whether Commonwealth, State or municipal);
- if the day on or by which something must be done is not a Business Day, that thing must be done on the next Business Day.
- Appointment and Formation
2.1 From the Commencement Date and upon execution of an Order by the parties:
(a) Vision Trak Rentals will provide the applicable Services to the Customer on the terms and conditions of this Agreement and the applicable Order; and
(b) the Customer shall pay the Charges and meet all its other obligations to Vision Trak Rentals under this Agreement.
2.2 Each executed Order creates a separate agreement which incorporates the terms of this Agreement.
2.3 In providing an Order to the Customer, Vision Trak Rentals shall not be bound by any other terms or conditions which may be submitted by the Customer together with the Order.
2.4 Unless stated otherwise in an Order, the term of this Agreement is 36 months from the Commencement Date (the “Term”).
2.5 Upon expiry of the Term of this Agreement, this Agreement will continue for further terms of 36 months (“Renewal Terms”) unless either party notifies the other before the expiration of the Term (or any Renewal Term) that it wishes to terminate this Agreement.
2.6 If the Customer terminates this Agreement in accordance with clause 2.5, Vision Trak Rentals may in its sole discretion continue to provide the Services to the Customer on a month to month basis subject to payment of the Charges by the Customer and either party may terminate the provision of the Services at any time upon giving 30 days’ written notice to the other party.
- Provision of the Services
3.1 In consideration of the payment of the Charges, Vision Trak Rentals shall provide the Services from the date of the applicable Order.
3.2 Vision Trak Rentals grants the Customer a license to access the Website. The Customer will be strictly and solely responsible for any misuse of the Website (which includes, but shall not be limited to, the hacking of the Website, and damage caused to the Website either directly or indirectly by the Customer) and shall keep Vision Trak Sales indemnified in relation to any damage, misuse or unauthorised use of the Website.
3.3 Vision Trak Rentals retains title to any and all equipment supplied by Vision Trak Rentals to the Customer in supplying the Services until Vision Trak Rentals is paid the Charges specified in the applicable Order Forms to which the equipment and the Services relate.
- Customer’s Obligations and Acknowledgements
4.1 The Customer must appoint a suitably qualified and informed employee as its representative in relation to the provision of the Services (“Customer Representative”)
4.2 The Customer Representative:
(a) must be familiar with the Services intended to be provided and skilled and experienced in project management;
(b) will be responsible for liaising with Vision Trak Rentals’ personnel in relation to the provision of the Services and all other matters contemplated in this Agreement; and
(c) must be available during normal business hours and at other reasonable times for discussions with Vision Trak Rentals personnel concerning matters arising under this Agreement.
4.3 The Customer may change the identity of its Customer Representative by providing written notice of the change of details to Vision Trak Rentals provided that, in the reasonable opinion of Vision Trak Rentals, any replacement Customer Representative satisfies the requirements of clause 4.1.
4.4 The Customer must provide Vision Trak Rentals all information requested by Vision Trak Rentals in relation to the provision of the Services including, without limitation, all relevant information regarding the Customer equipment and the Customer’s computing infrastructure. The Customer must notify Vision Trak Rentals immediately if there is any change to such information.
4.5 The Customer must during the Term and at its own expense, obtain and maintain the appropriate insurance policies including public liability, vehicle insurance and business interruption insurance with a reputable insurer and provide to Vision Trak Rentals proof of such insurance policies within 10 Business Days of a written request.
4.6 The Customer must ensure full and safe access to its premises including providing Vision Trak Rentals with remote access at all times as required by Vision Trak Rentals.
4.7 The Customer must provide all the items requested by Vision Trak Rentals and other instructions provided by Vision Trak Rentals from time to time in relation to the supply of the Services.
4.8 The Customer must ensure that it complies with all laws in the State or Territory of Australia in the course of receiving the Services including, without limitation, any occupational health and safety laws and regulations in the applicable State or Territory of Australia.
4.9 The Customer acknowledges and agrees that the electronic maps or global positioning system (“GPS”) applications used in the provision of the Services may not always be accurate due to construction of new roads, road closures, or similar circumstances, and other conditions which are subject to change and may cause inaccuracies in such electronic maps and GPS which may generate incorrect position of a vehicle, create a correct route or display correct information.
4.10 The intellectual property rights in the Services and the Content, including but not limited to the intellectual property rights of electronic maps, moving images, music, data and information, are owned or are licensed by Vision Trak Rentals, its third party service providers and/or licensors and nothing in this Agreement shall create or transfer any intellectual property rights in the Services and the Content to the Customer.
4.11 The Services are intended for the Customer’s personal business use only. The Customer shall not resell or distribute the Vision Trak Rentals Services (including any equipment) in whatever form to any third party.
4.12 If any of the Customer’s equipment, hardware or software (including such equipment, hardware or software supplied by Vision Trak Rentals to the Customer pursuant to the supply of the Services) become obsolete, antiquated or are no longer compatible with the Services, such equipment, hardware or software must be replaced by the Customer at the Customer’s cost.
4.13 The Customer shall not assign, transfer or sub-license any all or any of its rights and obligations under this Agreement.
- Vision Trak Rental’s Obligations
5.1 Vision Trak Rentals will ensure that its personnel or contractors are suitably qualified for the provision of the Services.
5.2 Vision Trak Rentals may at its absolute discretion change any of its personnel used to supply the Services at its sole discretion.
5.3 Subject to clause 5.4 and clause 5.5, Vision Trak Rentals will perform the Services in accordance with the terms of an Order.
5.4 Where any delay in meeting an Order is caused by or contributed to by an act or omission of the Customer:
(a) Vision Trak Rentals will not be liable for any loss incurred by the Customer; and
(b) the relevant Order will be extended by the length of time caused by or contributed to by the Customer’s delay.
5.5 Where any delay in meeting an applicable Order is caused by or contributed to by an act or omission of Vision Trak Rentals, Vision Trak Rentals will not be liable to the Customer for its failure to meet that Order if Vision Trak Rentals completes the relevant Order within a reasonable timeframe.
- Charges, Billing and Payment
6.1 During the Term and any Renewal Term, the Customer will pay the Charges to Vision Trak Rentals in accordance with this Agreement and the applicable Order.
6.2 Unless specified otherwise in the relevant Order, Vision Trak Rentals is entitled to invoice the Customer for the Charges on a monthly basis.
6.3 The Customer must pay each invoice issued by Vision Trak Rentals pursuant to this agreement within 14 days of the date of the invoice.
6.4 During the Term and any Renewal Term, Vision Trak Rentals may increase the Charges, provided that Vision Trak Rentals must give the Customer no less than 30 days’ notice of the increase in the Charges and may only increase the Charges once annually during each year of the Term and any Renewal Term.
6.5 If the Customer does not pay any amounts due under this Agreement on time, the Customer is in default and Vision Trak Rentals may in its absolute discretion require that the Customer pay Interest on the overdue amounts on a daily basis from the original due date of the outstanding amount. Vision Trak Rental’s right to require payment of interest does not affect any other rights and remedies it may have regarding the default.
6.6 Without limiting clause 6.5, if the Customer fails to pay any amounts due to Vision Trak Rentals under this Agreement by the due date for payment, Vision Trak Rentals may issue the Customer with a Suspension Notice.
6.7 If (a) a period of five Business Days has elapsed from the date of the Suspension Notice and
(b) any of the amounts specified in a Suspension Notice remain unpaid, Vision Trak Rentals will have the right to suspend its provision of the Services, until such time as the relevant payment is made by the Customer in full.
6.8 Vision Trak Rental’s suspension of the Services pursuant to clause 6.7 will not affect any other rights and remedies it may have regarding the non-payment and Vision Trak Rentals will not be liable for any loss suffered by the Customer as a result of the suspension.
6.9 Vision Trak Rentals shall be entitled, in addition to its other rights and remedies hereunder, to exercise the right of set-off and to deduct from the deposits paid by the Customer, any outstanding sum due to Vision Trak Rentals at any time.
7.1 Words and expressions used in this clause 7 which are not defined in this agreement, but which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act), have the meaning given to them in the GST Act.
7.2 The consideration for any supply made under or in connection with this agreement does not include an amount for GST, unless it is expressly stated in this agreement or the Statement of Work to be inclusive of GST.
7.3 If GST is or becomes payable on any supply made under or in connection with this agreement (not being a supply for which the consideration is expressly stated in this agreement to be inclusive of GST), the party required to provide the consideration for the supply must pay, in addition to and at the same time as the consideration is provided, an amount equal to the amount of GST on the supply.
7.4 If the amount for GST recovered by a party under clause 7.3 differs from the amount of GST payable by the party or its representative member on the supply, the amount of the difference must be paid to or refunded by the party (as the case requires).
7.5 If a party is required under this agreement to reimburse or indemnify another party for any amount incurred by the other party, the amount to be reimbursed or paid by the party will be the amount incurred reduced by an amount equal to any input tax credit that the other party or its representative member is entitled to claim for the amount incurred and increased by the amount of any GST payable in respect of the reimbursement or payment.
7.6 The rights and obligations of the parties under this clause 7 do not merge on completion or termination of this agreement.
7.7 If the Customer is required under any applicable law to deduct or withhold from any payment to Vision Trak Rentals an amount in respect of withholding or other simular taxes such that Vision Trak Rentals would not receive the full amount of the payment on the due date for payment, the Customer agrees to:
(a) deduct or withhold the amount for taxes from the Vision Trak Rentals payment; and
(b) pay to Vision Trak Rentals (at the same time and in the same manner as relevant Vision Trak Rentals payment) an amount of money equal to the amount deducted or withheld for taxes, so that the net amount received by Vision Trak Rentals is the amount Vision Trak Rentals would have received for that payment had no deduction or withholding been made.
- Change of Service Plan
8.1 Any change in Service Plan by the Customer is subject to the written agreement of Vision Trak Rentals and Vision Trak Rentals may impose such additional conditions for such change of Service Plan in its sole discretion.
8.2 The Customer acknowledges and agrees that upon cessation of its prior Services Plan any remaining Services benefits under a prior Services Plan cannot be carried forward to the new Service Plan.
8.3 The Customer shall ascertain the details in relation to the change of Service Plan from Vision Trak Rentals in advance.
- Vision Trak Rentals warrants to the Customer that:
- It has the right to provide the Services and subject to payment of the Charges, the Services are free from any charge or encumbrance;
- The Services will be provided with due care and skill and in a professional manner, using personnel with the appropriate skills and expertise;
- The Services will be carried out in accordance with the Order and the Documentation supplied, if any;
- The Services and their use do not, and will not, infringe the intellectual property rights or any other rights of third person; and
- The Services will comply in all materials respects with all applicable legislation, regulations and other governmental requirements in Australia.
9.2 Vision Trak Rentals warrants that the Services will, for a period of 90 days from their delivery materially comply with the relevant Documentation supplied, if any, to the Customer.
9.3 Vision Trak Rentals is not liable for any breaches of the above warranties to the extent that such breach is caused by:
- The use of the Services by the Customer and its authorised third parties in a manner that is expressly contrary to this Agreement (including any Documentation);
- The unauthorised modification of the Services; or
- The maintenance of the Services by a person who is not authorised by Vision Trak Rentals or the Customer.
- Suspension and Termination
10.1 Vision Trak Rentals may terminate an agreement referred to in clause 2.2 effective immediately upon providing written notice of termination to the Customer, if:
(a) Vision Trak Rentals issues more than two Suspension Notices under that agreement in any calendar year of the Term; or
(b) an Insolvency Event occurs in respect of the Customer.
10.2 Where the Customer reasonably believes that Vision Trak Rentals is in breach of any agreement formed under clause 2.2, it may provide Vision Trak Rentals with written notice setting out details of the breach and the steps it wishes Vision Trak Rentals to take to rectify the breach (“Breach Notice”)
10.3 Upon receipt of a Breach Notice, Vision Trak Rentals must take such steps reasonably necessary to rectify the breach specified in the Breach Notice.
10.4 The Customer may terminate any agreement formed under clause 2.2 effective immediately upon providing written notice of termination to Vision Trak Rentals if:
(a) Vision Trak Rentals fails to remedy a material breach within a reasonable time provision of a Breach Notice; or
(b) an Insolvency Event occurs in respect of Vision Trak Rentals.
10.5 Subject to clause 10.6, following the Termination Date:
(a) Vision Trak Rentals ceases to have any obligations to provide Services in respect of the terminated agreement (and the relevant Order) to the Customer; and
(b) the Customer must immediately pay to Vision Trak Rentals all amounts payable to Vision Trak Rentals pursuant to the terminated agreement (and the relevant Order) which are accrued or payable at the Termination Date.
10.6 Vision Trak Rentals will provide the Customer with transition back assistance to assist the Customer in performing the Services without the involvement of Vision Trak Rentals for a maximum period of one month, or such other time period agreed between the parties provided that the Customer continues paying Vision Trak Rentals the Charges and otherwise complies with its obligations under that agreement.
10.7 Termination of an agreement formed under clause 2.2 for any reason will not extinguish or otherwise affect any rights of either party against the other which:
(a) accrued prior to the time of termination; or
(b) otherwise relate to or may arise at any future time from any breach or non-observance of obligations under that agreement which arose prior to the time of the termination, completion or expiry.
11.1 Save and except for the warranties expressly provided under this Agreement, Vision Trak Rentals provides no warranty (express or implied) as to the fitness for a particular purpose, conforming with description, merchantable quality and durability of the Vision Trak Rentals Services and any equipment, hardware or software provided to the Customer.
11.2 Vision Trak Rentals makes no warranty as to the quality and availability of any of the Services, and its network. Vision Trak Rentals accepts no responsibility and the Customer shall not hold Vision Trak Rentals liable for any failure, interruption, delay, suspension or error on the part of Vision Trak including without limitation, in relation to the Vision Trak Rentals Services, the Content, its network, customer service and after-sale service.
11.3 Vision Trak Rentals will use reasonable commercial endeavours to provide the Services to the Customer without abnormal interruption.
- Limitation of Liability
12.1 To the extent permitted by law, Vision Trak Rentals’ aggregate liability to the Customer shall in any event not exceed the total fees paid by the Customer to Vision Trak Rentals under the applicable Order to which the claim relates for the immediately preceding 12 months prior to any incident giving rise to such liability or claim.
12.2 Vision Trak Rentals expressly excludes all liability to the Customer for Consequential Loss arising out of or in connection with this agreement. Consequential Loss in this Agreement includes (without limitation):
(a) indirect loss;
(b) loss of revenues;
(c) loss of reputation;
(d) loss of profits;
(e) loss of actual or anticipated savings;
(f) loss of data;
(g) loss of bargain; or
(h) lost opportunities, including opportunities to enter into arrangements with third parties.
12.3 In the event that the provision of the Services is undertaken by sub-contractors or agents of Vision Trak Rentals (collectively referred to herein as “Independent Service Providers”), Vision Trak Rentals excludes all responsibility or liability arising from the acts, default, neglect, omissions and mistakes committed by the Independent Service Providers.
12.4 Without limitation to any other provision in this Agreement, Vision Trak Rentals expressly excludes any liability whatsoever arising directly or indirectly from Vision Trak Rentals exercising any of its rights under this Agreement.
12.5 Vision Trak Rentals shall not be liable for any loss or damage suffered by the Customer arising out of or in relation to loss or damage caused or contributed to by the Customer, its employees, third party contractors and agents to the equipment and the output of the Services.
- Privacy and Personal Information
13.1 The parties must at all times comply with the Privacy Laws subject to the terms of clauses 13.2 to 13.3.
13.2 The Customer must:
(a) take all necessary steps to maintain the security of any Personal Information it holds and only provide Vision Trak Rentals with access to Personal Information which Vision Trak Rentals reasonably requires in order to provide the Services.
(c) the Customer agrees and accepts that if Vision Trak Rentals complies with clause 13.2(b) above, then notwithstanding the Privacy Laws, Vision Trak Rentals has adequately discharged its obligations under this agreement.
13.3 The obligations under this clause 13 survive the termination or expiry of this Agreement.
14.1 The Receiving Party must:
(a) maintain the confidential nature of the Confidential Information;
(b) only disclose Confidential Information;
(i) to an Authorised Person where the Authorised Person has a need to know and after the Receiving Party has made the Authorised Person fully aware of the confidential nature of the Confidential Information;
(ii) with the prior written consent of the Disclosing Party; or
(iii) as required by law, provided that the Receiving Party must give the Disclosing Party reasonable prior notice of the proposed disclosure;
(c) only use the Confidential Information for the purposes of receiving or providing the Services (as the case may be) unless otherwise agreed in writing by the Disclosing Party; and
(d) not copy or duplicate or allow the copying or duplication of any Confidential Information.
14.2 The Receiving Party must:
(a) take all reasonable proper and effective precautions to maintain the confidential nature of the Confidential Information; and
(b) immediately notify the Disclosing Party of any potential, suspected or actual unauthorised access, disclosure, copying or use or breach of this clause 14.
14.3 If requested to do so by the Disclosing Party, the Receiving Party must immediately cease all use of the Confidential Information and must, at its own expense:
(a) return to the Disclosing Party or destroy, as the Disclosing Party directs, any documents in its possession, power or control containing the Confidential Information, with the exception of any Confidential Information the Receiving Party is required to retain copies of under any applicable law or permitted to retain under this agreement; and
(b) provide the Disclosing Party with reasonable evidence that it has complied with (a) above.
14.4 Return or destruction of the Confidential Information does not release the Receiving Party from its obligations of confidence under this clause 14.
14.5 The Customer agrees that, for the purposes of promoting and marketing Vision Trak Rentals, Vision Trak Rentals is entitled to notify others of Vision Trak Rental’s relationship with the Customer and Vision Trak Rental’s provision of the Services to the Customer.
14.6 The obligations under this clause 14 survive the termination or expiry of this agreement.
15 FORCE MAJEURE
15.1 If a Force Majeure Event occurs and a party is not able to partially or wholly perform its obligations (Affected Party) under this agreement, then, the Affected Party’s obligations under this agreement will be suspended to the extent that the Affected Party is prevented from performing its obligations by the Force Majeure Event, provided that a Force Majeure Event does not relieve or suspend any party’s obligation to pay money.
15.2 The Affected Party must notify the other party as soon as practicable after the Force Majeure Event arises of:
(a) the Force Majeure Event;
(b) the expected duration of the Force Majeure Event;
(c) the extent to which the Affected Party is or will be prevented from complying with its obligations as a result of the Force Majeure Event; and
(d) the steps the Affected Party will take to overcome the effects of the Force Majeure Event.
15.3 The Affected Party must use its reasonable efforts to take steps to overcome the effects of the Force Majeure Event and to resume its obligations under this agreement as soon as practicable.
15.4 Subject to clause 15.5, the Affected Party must notify the other party as soon as practicable after the end of the Force Majeure Event that the Force Majeure Event has been remedied or ceased to exist and that the Affected Party has resumed or is in a position to resume its obligations under this agreement.
15.5 If the Force Majeure Event continues for more than 90 days, either party may immediately terminate this agreement by written notice to the other party.
16 DISPUTE RESOLUTION
16.1 If a dispute arises out of or relates to this Agreement, except where the party seeks urgent interim, injunctive or interlocutory relief, a party may not commence any court, tribunal or other similar proceedings relating to the dispute unless it has complied with this clause.
16.2 If either party believes that a dispute has arisen it must provide a written notice to the other party setting out full details of the dispute (Dispute Notice).
16.3 There will be a period of 15 Business Days from the service of a Dispute Notice during which the parties must endeavour to resolve the dispute within 10 Business Days of the date of the Dispute Notice.
16.4 If, following the expiry of the period specified in clause 16.3, no written agreement has been reached regarding the matters set out in the Dispute Notice, either party may, by written notice to the other party, escalate the parties’ respective managers. If an escalation notice is provided under this clause 16.4, there will be a period of 15 Business Days from the service of the notice during which time the parties must participate in good faith negotiations to attempt to reach a written agreement regarding the dispute detailed in the Dispute Notice.
16.5 If, following the expiry of the period described in clause 16.4, no written agreement has been reached regarding the matters set out in the Dispute Notice, either party may submit the dispute for mediation pursuant to 16.6.
16.6 Any dispute submitted for mediation under this clause 16 will be conducted in accordance with the IAMA Mediation and Conciliation Rules. The terms of the IAMA Mediation and Conciliation Rules are incorporated into this agreement. The parties may agree on the identity of the mediator appointed to mediate a dispute, provided that where the parties are unable to agree on the identity of the mediator within five Business Days of the dispute being submitted for mediation, either party may request that the IAMA appoint a mediator.
16.7 If a dispute referred to mediation under clauses 15.6 or 16.6 is not resolved within 30 days after the mediator was appointed or any further time period agreed by the parties in writing, the dispute resolution process under this clause 15 will be terminated and either party may commence legal proceedings in respect of the dispute.
The Customer agrees and acknowledges that Vision Trak Rentals may subcontract any or all of the Services and anything related or incidental to the Services.
- Non-solicitation of Employees
18.1 During the Term and for a period of 12 months following the later to occur of termination of this agreement or termination of each applicable agreement formed under clause 2.2, the Customer must not:
(a) directly or indirectly solicit for employment, employ, engage the services or otherwise contract any of the Vision Trak Rentals personnel who have been engaged to provide such Services; or
(b) induce or encourage any of the Vision Trak Rentals personnel to end their employment contract, other contractual relationship or other similar relationship with Vision Trak Rentals.
18.2 In the event that the Customer breaches clause 18.1 the Customer shall be liable to Vision Trak Rentals for an amount equal to fifty precent (50%) of the annual base compensation of the Vision Trak Rentals personnel in his/her new position.
The Customer acknowledges and warrants that:
- to the extent that Vision Trak Rentals has provided to the Customer any representation, description, illustration, specification or judgment in writing, been provided with an opportunity to independently verify the accuracy of that written representation, description, illustration, specification or judgment; and
- it has satisfied itself of the suitability of the Services for the Customer’s purposes.
- Third Parties
20.1 If a Customer engages any third parties to provide services to the Customer independently of this Agreement including contractors, consultants or agents (“Third Parties), the Customer must notify Vision Trak Rentals of the name of such Third Parties and the scope of the services supplied to the Customer.
20.2 The Customer is responsible and liable for the acts or omissions of Third Parties including :
(a) Protecting Vision Trak Rental’s Confidential Information in the same manner as set out in clause 14 of this agreement;
(b) Protecting the intellectual property rights of Vision Trak Rentals and its third party licensors from unauthorised use of such intellectual property rights including use of such intellectual property rights for any purpose other than for the supply of services by Third Parties to the Customer, unauthorised copying and reverse engineering by Third Parties;
(c) Ensuring Third Parties and their personnel (including subcontractors) do not injure Vision Trak Rental’s employees or contractors or cause damage to tangible property of Vision Trak Rentals, its employees or contractors; and
(d) Ensuring that the Third Parties act reasonably and co-operate with Vision Trak Rentals at all times and not prevent or otherwise impede the supply of Services by Vision Trak Rentals to the Customer.
20.3 Vision Trak Rentals will at all times act reasonably and co-operate with such Third Parties to the extent required by Vision Trak Rentals in the supply the Services to the Customer provided that this does not require additional resources and time to be devoted by Vision Trak Rentals.
20.4 If additional resources and time is required for Vision Trak Rentals to co-operate with a Third Parties, Vision Trak Rentals may issue a variation request to the Customer, with the Customer’s agreement of such variation request to not be unreasonably withheld by the Customer.
Except as otherwise specified in this Agreement, all notices, requests, consents, approvals, agreements, authorizations, acknowledgements, waivers and other communications (Notice) required or permitted under this Agreement will be in writing and sent by facsimile.
- A Notice is deemed to be received:
- if sent by mail (postage prepaid), 2 Business Days after posting within Australia to an Australian address; and
- if sent by facsimile, at the time indicated on the sender’s transmission report unless the recipient promptly informs the sender that the Notice was incomplete or not properly received,
- provided that if a Notice is received after 5:00pm or on a day which is not a Business day, it will be deemed to have been received on the next Business Day.
22.1 This Agreement will be construed and interpreted in accordance with the laws of State of Victoria, Australia and each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the State of Victoria, Australia.
22.2 Neither party may transfer, assign, charge, mortgage or encumber any of its rights under this agreement without the prior written consent of the other party which must not be unreasonably withheld.
22.3 This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
22.4 If there is any inconsistency between the clauses of this Agreement, the Orders and any Schedules or attachments to this Agreement, they will be interpreted in the following order of priority:
(a) an Order;
(b) the clauses of this Agreement;
(c) the Schedules of this Agreement; and
(d) any attachments to this Agreement.
22.5 If any provision of this agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
22.6 No failure to exercise or delay in exercising any right given by or under this agreement to a party constitutes a waiver and the party may still exercise that right in the future.
22.7 Each party shall sign, execute, deliver and do and shall procure that each of its officers, employees and agents signs, executes, delivers and does, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this agreement and the rights and obligations of the parties under it.
22.8 The relationship between the parties is that of principal and independent contractor and no party is a representative or partner of any other party by virtue of this agreement.
22.9 No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this agreement or by express written agreement between the parties.
22.10 The Customer shall not assign the whole or any part of this Agreement and any Order without the consent in writing of Vision Trak Rentals.