Desert Romance Picnics

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Terms of Service - Desert Romance Picnics
The following Terms of Service (Terms) govern the terms on which Desert Romance Picnics ABN
73 432 403 592 (the Service Provider) agrees to provide the Services (as defined below) to you
(the Client). If you are agreeing to these Terms on behalf of someone or entity you represent and
warrant that that you have the irrevocable authority and agreement of that person or entity to be
bound by these Terms.
By using this website desertromancepicnics.com.au (Website) or by placing a booking request or
by giving your acceptance to these Terms you agree to be bound by these Terms. If you don’t agree
to be bound by these Terms you must not use the Website or Services.
These Terms may be updated by the Service Provider from time to time. Each booking request
placed on the Website will be a separate contract and the Terms that apply to a booking will be the
version of the Terms that is on the Website at the time you place your booking request. Each time
you use the Website you should revisit these Terms.
These Terms and each accepted booking request together with any other terms we provide to you
set out the terms of our offer to provide Services to you and constitutes our agreement.
1. DEFINITIONS
1.1 In these Terms unless inconsistent with the context or subject matter:
(a) ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition
and Consumer Act 2010 (Cth)).
(b) Address for Service: a party’s email address or such other address for service advised
by the party to the other party in writing from time to time.
(c) Applicable Laws: any laws governing or affecting the arrangements contemplated by
these Terms.
(d) Corporations Act: the Corporations Act 2001 (Cth).
(e) Fees: any fees payable by the Client to the Service Provider under these Terms.
(f) Force Majeure Event: events circumstances or causes beyond a party’s reasonable
control including (but not limited to):
i) strikes lock-outs or other industrial action;
ii) civil commotion riot invasion cyber-attack terrorist attack or threat of terrorist
attack war (whether declared or not) or threat or preparation for war;
iii) fire explosion storm flood earthquake subsidence epidemic pandemic health
emergencies disease or other natural disaster;
iv) impossibility of the use of railways shipping aircraft motor transport or other means
of public or private transport;
v) interruption or failure of utility services (including the inability to use public or private
telecommunications networks); and
vi) the acts decrees legislation regulations or restrictions of any government agency
however does not include a lack of funds.
(g) Government Agency: any government or governmental administrative monetary
fiscal or judicial body department commission authority tribunal agency or entity in
any part of the world.
(h) GST: has the meaning given to it in the GST Law.
(i) GST Law: means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Insolvency Event:
i) a controller (as defined in section 9 of the Corporations Act) administrator or similar
officer is appointed in respect of a person or any asset of a person;
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ii) a liquidator or provisional liquidator is appointed in respect of a person;
iii) any application (that is not withdrawn or dismissed within seven days is made to a
court for an order or an order is made or a meeting is convened or a resolution is
passed for the purpose of (i) appointing a person referred to in paragraph (i) or (ii)
of this definition; (ii) winding up or deregistering a person; or (iii) proposing or
implementing a scheme of arrangement of a person other than with the prior
approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the
Corporations Act;
iv) any action proceedings procedure or step is taken for the purpose of implementing
or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other
composition compromise assignment or arrangement with any creditor or creditors
of a person; or (iii) any similar proceeding or arrangement by which the assets of a
person are subjected conditionally or unconditionally to the control of its creditors or
a trustee;
v) any event occurs in relation to a person in any jurisdiction that is analogous or has
a substantially similar effect to those set out in paragraphs (i) to (iv) of this definition
(inclusive); or
vi) a person is or admits in writing that it is or is declared to be or is taken under any
applicable law to be (for any purpose) insolvent or unable to pay its debts.
(k) Intellectual Property Rights: all intellectual property (IP) rights of any kind in any
jurisdiction subsisting now or in the future (including business company or trade
names domain names patents inventions copyright design rights know-how trade
marks the right to sue for passing off and rights to use and protect the confidentiality
of confidential information) whether registered or unregistered and including the rights
to apply for or renew the registration of any such rights and any rights the subject of
any lapsed application or registration.
(l) Loss: any loss liability cost charge expense tax duty or damage of any nature
whatsoever including special incidental or consequential damages losses or
expenses (howsoever arising or caused including without limitation negligence).
(m) Personnel: the directors officers employees contractors suppliers advisers or
agents of a party.
(n) Services: has the meaning given to it under clause 2.1.
(o) State: Northern Territory Australia.
1.2 In these Terms the following rules of interpretation apply unless the contrary intention
appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation
of these Terms.
(b) References to clauses schedules annexures appendices attachments and exhibits
are references to the clauses of and the schedules annexures appendices
attachments and exhibits to these Terms.
(c) References to parties are references to the parties to these Terms.
(d) References to a party to any agreement or document include that party’s permitted
assignees and successors including executors and administrators and legal
representatives.
(e) Words denoting the singular include the plural and words denoting the plural include
the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual corporation or other body corporate
partnership joint venture trust association and any government agency.
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(h) A reference to a body (other than a party to these Terms) whether statutory or not that
ceases to exist or has its powers or functions transferred to another body is a reference
to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including these Terms) includes any
amendments to or replacements of that document.
(j) A reference to a law includes:
i) legislation regulations and other instruments made under legislation and any
consolidations amendments re-enactments or replacements of them;
ii) any constitutional provision treaty or decree;
iii) any judgment;
iv) any rule or principle of common law or equity
and is a reference to that law as amended consolidated re-enacted replaced or applied
to new or different facts.
(k) Any promise agreement representation or warranty given or entered into on the part
of two or more persons binds them jointly and each of them severally.
(l) Any promise agreement representation or warranty given or entered into on the part
of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of these Terms will be construed adversely to a party because that party
was responsible for the preparation of that provision or these Terms.
(n) If a period of time begins on a given day or the day of an act or event it is to be
calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight
and ending 24 hours later.
(r) If any act is required to be performed under these Terms by a party on or by a specified
day and the act is performed after 5.00 pm on that day the act is deemed to be
performed on the next day.
(s) If any act is required to be performed under these Terms on or by a specified day and
that day is not a business day the act must be performed on or by the next business
day.
(t) A reference to an amount of dollars Australian dollars $ or A$ is a reference to the
lawful currency of the Commonwealth of Australia unless the amount is specifically
denominated in another currency.
(u) Specifying anything in these Terms after the terms ‘include’ ‘including’ ‘includes’ ‘for
example’ ‘such as’ or any similar expression does not limit the sense of the words
description definition phrase or term preceding those terms unless there is express
wording to the contrary.
(v) Where these Terms is executed for a party by an attorney the attorney by executing it
declares that the attorney has no notice of revocation of the power of attorney.
(w) These Terms includes all schedules annexures appendices attachments and exhibits
to it.
(x) A reference to writing or written includes email.
(y) Where a word or phrase is defined other parts of speech and grammatical forms of
that word or phrase have corresponding meanings.
2. SERVICES AND BOOKINGS
2.1 The Service Provider offers picnic booking services (referred to as the Services) which the
Client is able to submit a booking request online through the Website. Booking requests may
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be placed online via the Website or by other means approved by the Service Provider from
time to time. Any references to Website in these Terms shall include references to such
other locations in which the Services are made available to be booked.
2.2 The information and details of the Services including any catering offered are as displayed
on the Website at the time the Client places their booking request and as confirmed by the
Service Provider.
2.3 The booking will run from the start time as specified in the request and will continue for the
duration of the booking as set out on the Website.
2.4 Any booking request placed through the Website is an offer by the Client to engage the
Service Provider to provide the Services. Booking requests will not be binding on the Service
Provider until such time as the Service Provider has indicated its acceptance.
2.5 Any Fees stated on the Website are provided on the basis of the information current to the
Service Provider at the date of the booking request. The Service Provider reserves the right
to increase the Fees set out in a booking request where applicable in accordance with these
Terms. Any accepted booking request will be governed by these Terms.
2.6 All bookings are subject to availability and any terms and conditions as stated on the Website
or otherwise notified by the Service Provider to the Client. If for any reason the Service
Provider is unable to proceed with the supply the Service Provider reserves the right to
cancel the Services (and issue a refund for the cancelled Services if applicable).
2.7 In the event that the Client books the Services on behalf of a third party the Client represents
and warrants that it has made that third party aware of these Terms and acknowledges and
agrees that actions of that third party shall also be attributed to the Client for the purposes
of these Terms.
2.8 The Client must be at least 18 years of age and capable of entering legally binding contracts
under Applicable Laws to book any Services.
3. PRICES & PAYMENT TERMS
3.1 Fees
(a) The Fees payable and payment terms for the Services are as set out on the Website
at the time the Client submits their booking request.
(b) Unless otherwise specified on the Website the Client must pay all Fees upfront at the
time of booking.
(c) Prices and payment terms are subject to change in accordance with the other
provisions of these Terms.
(d) The Client must make payment via a method accepted by the Service Provider as set
out on the Website including credit card bank transfer or cash (as applicable).
(e) The Service Provider reserves the right to vary the fees payable even after the Client
has received a booking confirmation in the event of variations to the Services
requested by the Client.
3.2 Default in payment
In the event the Client fails to pay the Fees or other charges when due in full in cleared funds
in accordance with these Terms the Service Provider may at its discretion:
(a) require the Client to pay the Service Provider interest on all outstanding monies from
the due date until the date of payment at the rate of 12% per annum accruing daily;
(b) refuse to supply any further part of the Services to the Client until all outstanding
monies including any accrued interest is paid in full; or
(c) terminate these Terms whereupon the full price for the Services then supplied whether
or not the time for payment under these Terms has arrived will be immediately due and
payable.
3.3 General
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(a) The Service Provider’s payment provider may charge the Client a fee depending on the
payment method used by the Client (for example payments made by credit card may
attract a small surcharge). The Client agrees to pay such fees at the same time as
payment is made to the Service Provider even if such fees are not explicitly disclosed
on the Website.
(b) The Client acknowledges and agrees that they are solely responsible for ensuring that
it has read and understood any applicable third party terms and conditions when using
the Website. The Service Provider will not be liable for any loss or damage suffered by
the Client in connection with such third party terms regardless of whether the Service
Provider has brought them to the Client’s attention or not. The Client is solely
responsible for obtaining a copy of and reviewing such third party terms.
(c) The Service Provider is not a party to any transaction between the Client and a third
party. For example if the Client incurs a debt to a third party payment provider in
connection with a booking through the Website the Client is solely liable for that debt.
(d) The Client must make all payments without set-off or counterclaim. Payment of any
fees is not dependent on receipt of a tax invoice.
(e) Prices shown on the Website are in Australian Dollars (AUD) and include GST unless
otherwise stated.
(f) The Client will also pay to the Service Provider on demand on a full indemnity basis
all amounts that the Service Provider may at its absolute discretion expend or incur
(including legal costs on a solicitor and own client basis) as a result of the Client
defaulting on any of these Terms.
(g) It is the Client’s responsibility to obtain at its own cost an Uluru Kata Tjuta National Park
entry ticket for each person participating in the Services for the date of booking and
prior to the commencement of the Services. In the event that you are are unable or
unwilling to purchase National Park entry tickets then you will be unable to enter the
park and obtain the benefit of the Services. You are not entitled to any refund of the
fees paid to us in this case.
4. CANCELLATION AND CHANGES TO BOOKINGS
4.1 Once a booking for a Service has been placed or confirmed the following cancellation terms
apply:
(a) If the cancellation request is received by us in writing more than 30 days prior to the
booking date you will receive a full refund less a $100 administrative fee which we will
retain from the amount paid; and
(b) If the cancellation request is received by us 30 days or less prior to the booking date
no refund of any fees paid will be given.
4.2 If you arrive after the scheduled start time of your booking the Services will continue until
the allocated end time of your booking and the end time will not be extended.
4.3 There are no refunds (in part of whole) if you are unable to attend the Services or if you
arrive late and are unable to experience the benefit of your booking in whole (for example if
any food spoils). There are no refunds in the event that you do not enjoy the experience or
it does not go to plan (e.g. a proposal is not accepted).
4.4 The Service Provider reserves the right to make changes to the Services which are
necessary to comply with Applicable Laws government agency requests or safety
requirements.
4.5 The Service Provider reserves the right at any time prior to the start date/time of the booking
to cancel the booking where the Service Provider believes that there is an error in any
booking placed such as an error in the price or if the Services are not available. Where the
Service Provider cancels the booking under this clause then a full refund will be provided
to the Client for the fees paid for that booking. This is the sole remedy for the Client and the
Service Provider will not be liable for any Loss in this respect.
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5. CLIENT DUTIES AND RESPONSIBILITIES
5.1 General
(a) The Client must promptly provide all information and assistance reasonably required
by the Service Provider in order for the Service Provider to provide the Services as
soon as possible on being requested to do so. This includes without limitation being
available to answer questions the Service Provider may have during the booking.
(b) The Client must:
i) arrive at the schedule booking start time;
ii) ensure that any participants are suitably informed on the risks involved and are
aware of their obligations under these Terms;
iii) return any equipment hired out to the Client on the completion of the booking in good
working order; and
iv) return the picnic grounds where the Services have taken place in good condition as
at the start time of the booking.
(c) All baggage and personal belongings are solely at the Client’s risk. The Client is solely
responsible for the safe keeping and security of its personal belongings. The Service
Provider will not be liable to the Client for any Loss or damage to any of its personal
belongings.
(d) The Client assumed responsibility for the acts and omissions of any participants that
they invite to the Services.
5.2 Costs
The Client will be responsible for any costs incurred by the Service Provider in cleaning any
picnic grounds or for any fines penalties levies or charges payable as a result of any act
or omission of the Client (including the Client’s use).
5.3 Obligations during the picnic
(a) The Client must (and must ensure that the other participants of the Services):
i) dispose of waste property;
ii) respect wildlife and not interfere with any flora or fauna;
iii) be considerate to other visitors;
iv) not damage any third party property;
v) not behave in any manner which is unsafe or dangerous; and
vi) comply with any rules of the park at which the Services are to take place.
5.4 Picnic equipment
(a) The Service Provider will hire out the picnic equipment to the Client as required for the
booking for the duration of the booking period.
(b) The Client must take care of any picnic equipment and not cause any loss or damage
to such equipment. The Client will be responsible for the replacement costs of any
damage to any picnic equipment.
5.5 Compliance with Laws
The Client acknowledges and agrees that it will not by receiving or requesting the Services:
(a) breach any Applicable Laws rules and regulations (including any applicable privacy
laws); or
(b) infringe the rights of any third party or breach any duty of confidentiality.
6. RELATIONSHIP
6.1 The parties acknowledge that:
(a) the Service Provider is engaged by the Client as an independent contractor and nothing
in these Terms creates or constitutes a relationship of employer and employee trustee
and beneficiary or of partnership or joint venture between the parties; and
(b) the Service Provider is free to provide its services to third parties during the term of
these Terms.
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7. INSURANCE
7.1 The Client acknowledges that neither it nor any of its Personnel are entitled to the benefit of
any accident third party public liability or indemnity policies of insurance or any workers
compensation policies which may be in force for the benefit or protection of the Service
Provider’s employees.
8. REPRESENTATIONS AND WARRANTIES
8.1 Each party represents and warrants to the other that:
(a) it has full authority to enter into these Terms and is not bound by any agreement with
any third party that adversely affects these Terms; and
(b) it has and will maintain throughout the term of these Terms all necessary powers
authority and consents to enter into and fully perform its obligations under these Terms.
8.2 Each party will immediately notify the other party if any of the foregoing representations and
warranties cease to be true during the term of these Terms.
9. DELEGATION AND SUBCONTRACTING
9.1 The Service Provider may subcontract delegate and/or perform the Services through any
other party competent to perform that Service.
9.2 The Service Provider will use reasonable endeavours to ensure that such persons comply
with the provisions of these Terms however a breach by such persons of these Terms will
not be deemed a breach by the Service Provider.
10. DISCLAIMER
10.1 General
(a) The Service Provider provides the Services on an "as is" basis and without any
warranties representations or conditions of any kind whether express implied or
statutory to the extent permitted by law. The Client relies on the Services and any
information or guidance provided by the Service Provider to the Client throughout the
provision of the Services (Information) at its own risk.
(b) Without limiting clause 10.1 the Client acknowledges and agrees that:
i) although reasonable care has been taken to provide accurate Information the
Service Provider is unable to guarantee that any Information or content provided by
the Service Provider is accurate complete reliable current and/or error free. The
Client should verify the accuracy of any information provided before relying on it;
ii) all pictures and images of ingredients or menu items displayed on the Website are
for illustrative purposes only (portion sizing may differ); and/or
iii) the Service Provider does not provide any guarantee of results or any particular
outcome and does not guarantee that the result of the Services will be performed to
the Client’s satisfaction and/or taste preferences.
10.2 Allergies & Ingredients
(a) It is the Client’s sole responsibility to inform the Service Provider of any allergens it has.
No allergen or nutritional information provided by the Service Provider or stated on the
Website should ever be considered a guarantee but simply a good faith effort to serve
the Service Provider’s customers. The Service Provider will not be liable for adverse
reactions to food consumed or other items an individual may come into contact with
whilst eating any of the items prepared by the Service Provider.
(b) With respect to menu items and ingredients the Client acknowledges and agrees that:
i) ingredients are supplied and manufactured by third parties unrelated to the Service
Provider the Service Provider does not manage or control those third party suppliers
or their ingredients and are not responsible for their marketing labels packaging or
otherwise;
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ii) information about menu items and ingredients is provided to the Service Provider by
third party suppliers and the Service Provider cannot and does not guarantee the
completeness accuracy currency or reliability of such information;
iii) no allergen or nutritional information provided by the Service Provider or a third party
should ever be considered a guarantee and the Service Provider will not be liable
for any Loss arising in connection with adverse reactions to food or drink consumed
or other items the Client may come into contact with in connection with the Services.
For the avoidance of doubt the Service Provider does not guarantee that the menu
items will not cause adverse food reactions when consumed;
iv) any nutrient information labelled on the items or otherwise displayed by the Service
Provider on the Website are provided by a third party and the Service Provider is not
liable for such;
v) although the Service Provider takes reasonably commercial attempts to identify the
ingredients that may cause allergic reactions or adverse effects:
A. allergen information provided is based entirely on information provided by
third party suppliers and as such there is a risk that their information in
incorrect or they change the formulation without notice;
B. some items may contain soy milk eggs nuts and cereals containing gluten
present in the manufacturing environment and there may be cross contact
with products because of shared cooking and food preparation equipment.
Given that this information as well as the items are provided by third party
suppliers the Service Provider does not and cannot guarantee that any of the
menu items are safe to consume for people with soy milk egg nut or gluten
allergies. Clients with food allergies must be aware of this risk. Clients who
have any form of medical condition food intolerances or food allergies should
consult with a medical professional before consuming any of the ingredients;
vi) given the nature of the ingredients being provided by third parties the Service
Provider does not and is unable to guarantee that any food or drink is safe to
consume and the Client consumes such at its own risk. The Service Provider
accepts no responsibility in this respect.
10.3 Survival
This disclaimer applies to the fullest extent permitted by law and shall survive any
termination or expiration of these Terms.
11. INDEMNITY
11.1 Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against
and holds the Indemnified Party harmless from any Losses (including any direct indirect
special or consequential Losses) and all interest penalties and legal costs (calculated on a
full indemnity basis) and all other professional costs and expenses suffered or incurred by
the Indemnified Party arising out of or in connection with:
(a) the Indemnifying Party’s breach or negligent performance or non-performance of these
Terms;
(b) any illegal practices that the Indemnifying Party or the Indemnifying Party’s Personnel
performs or engages;
(c) the enforcement of these Terms against the Indemnifying Party; and
(d) any act omission or wilful misconduct of the Indemnifying Party or the Indemnifying
Party’s Personnel (including any negligent act or omission).
12. THIRD PARTY SERVICES
12.1 Notwithstanding any other clause in these Terms the Service Provider will only be
responsible for defects in the Services that the Service Provider supplies. To the extent
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permitted by law the Service Provider will not be liable for or required to provide any remedy
for any services carried out by third parties.
13. LIMITATION OF LIABILITY
13.1 Subject to the other terms of this clause each party’s maximum aggregate liability to the
other party for any Loss or damage or injury arising out of or in connection with these Terms
including any breach by that party of these Terms however arising under any indemnity in
tort (including negligence) under any statute custom law or on any other basis is limited
to the total Fees and other charges paid or payable by the Client to the Service Provider
under these Terms.
13.2 Nothing in these Terms are intended to have the effect of excluding restricting or modifying
the application of all or any of the provisions of Part 5-4 of the ACL or the exercise of a right
conferred by such a provision or any liability of the Service Provider in relation to a failure
to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply
of goods or services.
13.3 If the Service Provider is liable to the Client in relation to a failure to comply with a guarantee
that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded the Service
Provider’s total liability to the Client for that failure is limited to at the option of the Service
Provider the resupply of the Services or the payment of the cost of resupply.
13.4 Without limitation to the other terms of this clause each party excludes any liability to the
other whether in contract tort (including negligence) or otherwise for any special indirect
or consequential loss arising under or in connection with these Terms.
13.5 Notwithstanding anything else in this clause each party’s liability will be reduced to the
extent the loss or damage is caused by or contributed to by the other party or their Personnel.
14. TERMINATION
14.1 Termination with cause
In addition to such rights set out under these Terms either party (the non-defaulting party)
may terminate these Terms with immediate effect by giving written notice to the other party
if:
(a) the other party suffers an Insolvency Event; or
(b) the other party commits a breach of any term of these Terms and either:
i) the breach is irremediable; or
ii) the breach is remediable and the other party fails to remedy that breach within a
period of 30 days after the other party has or is deemed to have received written
notice requesting it to do so.
15. CONSEQUENCES OF TERMINATION
15.1 On termination or expiry of these Terms:
(a) each party must promptly deliver to the other all property belonging to the other that is
in its possession or control including any intellectual property;
(b) the Client must immediately pay to the Service Provider all amounts payable to the
Service Provider (including amounts that are payable but not due) and the Service
Provider may invoice the Client with respect to the Services performed up to the date
of termination but not yet invoiced and such invoice shall be payable immediately on
receipt; and
(c) no refunds of amounts paid in respect of the period post termination or expiry will be
provided.
15.2 Termination or expiry of these Terms does not affect any rights remedies obligations or
liabilities of the parties that have accrued up to the date of termination or expiry including
the right to claim damages in respect of any breach of these Terms which existed at or
before the date of termination or expiry.
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16. INTELLECTUAL PROPERTY
16.1 Materials
(a) The Client acknowledges that the Service Provider will retain all rights title and interest
(including all Intellectual Property Rights) which subsist in or which may be obtained
from:
i) the Website;
ii) the Services including any recipes methods and other documentations or materials
provided during the provision of the Services; and
iii) any additional or further intellectual property created formulated or discovered by
either party in connection with the Services (including any developments
improvements revisions and updates to the Services) whether or not the Service
Provider and/or Client contributed to them and whether or not the addition was at
the direction or suggestion of the Client (for example if the Client suggests adding
an ingredient to a recipe)
(collectively referred to as the Materials)
(b) Subject to the payment of the fees and to the extent that the Service Provider owns the
Materials the Service Provider grants to the Client a limited non-exclusive revocable
non-transferable non-sublicensable nor assignable licence to use the Intellectual
Property Rights in such Materials solely to the extent required to benefit from the
Services.
16.2 Survival
This clause survives termination of these Terms.
17. REVIEWS AND OTHER SUBMISSIONS
17.1 If the Client submits a review or other material to the Service Provider the Client grants the
Service Provider a non-exclusive royalty-free perpetual irrevocable and fully sublicensable right to use reproduce modify adapt publish translate and create derivative
works from distribute and display such content throughout the world in any media.
17.2 The Client represents and warrants that it owns or otherwise controls all the rights to that
material and that at the date of submissions:
(a) the material is accurate; and
(b) the material does not breach any Applicable Laws.
18. FORCE MAJEURE
18.1 The Service Provider will not be in breach of these Terms or liable to the Client for any Loss
incurred by the Client as a direct result of the Service Provider failing or being prevented
hindered or delayed in the performance of its obligations under these Terms where such
prevention hindrance or delay results from a Force Majeure Event.
18.2 If a Force Majeure Event occurs the Service Provider must notify the Client in writing as
soon as practicable and that notice must state the particulars of the Force Majeure Event
and the anticipated delay.
18.3 On providing the notice above the Service Provider will have the time for performance of
the affected obligations extended for a period equivalent to the period during which
performance has been delayed hindered or prevented however the Service Provider must
continue to use all reasonable endeavours to perform those obligations.
18.4 Subject to the other terms of this clause the performance of the affected obligations must
be resumed as soon as practicable after such Force Majeure Event is removed or has
ceased.
19. NON-DISPARAGEMENT
19.1 Each party (and its Personnel) must not by any method including on social media anywhere
in the world:
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(a) make any public or private statement public or comment whether oral or in writing
which in the reasonable opinion of the other party is adverse to the interest reputation
or commercial standing of or is in any respect a disparaging remark or representation
about the other party (and its Personnel); or
(b) make any public or private statement that is false and does or has the tendency to
damage the reputation of the other party (and its Personnel).
20. NOTICES
20.1 All notices authorised or required under these Terms to be given by a party to the other shall
be in writing sent by email or delivered personally or sent by pre-paid registered post and in
each case addressed to the other party at that party's Address for Service or as the case
may be at such other address as a party may from time to time notify to the other.
20.2 The following shall constitute proof of receipt:
(a) proof by posting by registered post; or
(b) proof of dispatch by email.
20.3 Receipt of a notice given under these Terms will be deemed to occur:
(a) in the case of a communication sent by pre-paid registered post on the third business
day after posting;
(b) in the case of an email on the business day immediately following the day of dispatch.
20.4 If a notice is sent via post it must also be sent via email.
21. GENERAL
21.1 Assignment
Any rights of a party that arise out of or under these Terms are not assignable or capable of
novation by that party without the prior written consent of the other party whose consent
must not be unreasonably withheld.
21.2 No Waiver
No party may rely on the words or conduct of any other party as being a waiver of any right
power or remedy arising under or in connection with these Terms unless the other party or
parties expressly grant a waiver of the right power or remedy. Any waiver must be in writing
signed by the party granting the waiver and is only effective to the extent set out in that
waiver.
21.3 Severability
If the whole or any part of a provision of these Terms are or becomes invalid or
unenforceable under the law of any jurisdiction it is severed in that jurisdiction to the extent
that it is invalid or unenforceable and whether it is in severable terms or not.
21.4 No Merger
On completion or termination of these Terms the rights and obligations of the parties set
out in these Terms will not merge and any provision that has not been fulfilled remains in
force.
21.5 Survival
Any clause which by its nature is intended to survive termination or expiry of these Terms
will survive such termination or expiry.
21.6 Further Action
Each party must do all things (including completing and signing all documents) reasonably
requested by the other party that are necessary to give full effect to these Terms and the
transactions contemplated by these Terms.
21.7 Time of the Essence
Time is of the essence in these Terms in respect of any date or time period and any
obligation to pay money.
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21.8 Remedies Cumulative
Except as provided in these Terms and permitted by law the rights powers and remedies
provided in these Terms are cumulative with and not exclusive to the rights powers or
remedies provided by law independently of these Terms.
21.9 Entire agreement
These Terms states all the express terms agreed by the parties about its subject matter. It
supersedes all prior agreements understandings negotiations and discussions in respect
of its subject matter.
21.10 Governing Law and Jurisdiction
(a) These Terms is governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising
jurisdiction in the State and courts of appeal from them in respect of any proceedings
arising out of or in connection with these Terms.