PLEASE READ THIS UNIVERSAL TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Service Agreement is between two PARTIES: Cleard Life Vetting Agency Pty Ltd and by You(client/sponsor).
You agree to this Agreement as an Officer, Attorney, Trustee or other Authorised Representative of the Party listed above and provide assurances that you possess unrestricted authority and capacity to agree to this Agreement at this time.
The business of CLVA is to provide background screening suitability assessments. CLVA has agreed to provide the Services to the Client/Sponsor.
2.1 CLVA must provide the Services to the Client/Sponsor in accordance with this Agreement and the Regulations.
2.2 The Services will be provided in a timely manner having regard to the workload and capacity of CLVA from time to time and CLVA will act reasonably and inform the Client/Sponsor if the Services may be delayed due to a temporary increase in workload or reduction in capacity.
2.3 Provision of additional services not included in the original Services may be provided by CLVA from time to time, as agreed between the parties.
2.4 This agreement is personal to the Client/Sponsor and may not be assigned by the Client/Sponsor.
2.5 The Client/Sponsor must comply with the directions of CLVA from time to time when ordering the Services, including:
(a) Security and identification procedures, and
(b) Ensuring the Candidate signs a statutory declaration in the form required by CLVA from time to time, and
(c) Providing a warranty to CLVA that the statutory declaration referred to in clause 2.5(b) has been properly signed.
(d) CL0 Assessments do not require a Statutory Declaration to be Signed by the Candidate as part of the CLVA Process, however, CL1, CL2 and CL3 Services do.
2.6 The Client/Sponsor may supply additional information to CLVA for Suitability Assessment purposes. The Client/Sponsor will take steps to ensure that the information provided using this method is also accurate, up-to-date and complete.
2.8 CLVA may also obtain additional information from nominated and/or un-nominated Referees.
3. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
3.1 The parties covenant on behalf of themselves and their financial, legal and other advisors that they will keep confidential and not divulge either directly or indirectly to any person any information relating to the business, processes, systems or affairs of the other party which is of a confidential nature or which is not otherwise in the public domain, including the terms of this Agreement, save to the extent that the disclosure may be required by statute or may reasonably be required for the purpose of enabling the parties to fulfil their respective obligations under this Agreement or as may otherwise be required by law. This clause shall have force after the termination or expiry of this agreement.
3.2 The parties acknowledge and agree that all Intellectual Property whether existing at the Commencement Date or created during the Term is vested in and remains the sole property of the CLVA.
3.3 Without limiting the generality of clause 9.1, the Client/Sponsor agrees not to divulge or in any way disclose any details of the suitability assessment Result to the Candidate.
4. OBLIGATIONS OF CLVA
4.1 CLVA must:
(a) exercise all due care, skill and attention in providing the Services;
(b) ensure that the Services are rendered in compliance with any Regulations;
(c) ensure that the Services are carried out in a proficient manner by properly trained and qualified people; and
(d) obtain and maintain a current policy of Professional Indemnity insurance for an amount of at least $10 million per claim (Maximum aggregate limit of $20 million) and public liability of at least $10 million and provide satisfactory evidence of such insurance to the Client/Sponsor upon request.
4.2 Nothing in this Agreement will be construed as placing on CLVA any obligation other than the provision of the Services to the Client/Sponsor in accordance with the provisions of this Agreement and the provisions of which are necessary to enable CLVA to carry on successfully their business and for the purposes of CLVA gaining or producing assessable income.
5.1 The Client/Sponsor will not, and will not consent, assist, induce or encourage and of its officers, employees, agents, sub-contractors or representatives to do any of the following during the Term or for a period of three (3) years after expiration or termination of this Agreement:
(a) Solicit, induce or encourage any employee of CLVA to leave the employment of CLVA or to accept an engagement as employee, contractor or otherwise with the Client/Sponsor; or
(b) Solicit, induce or encourage any client of CLVA to cease obtaining the Services from CLVA or to obtain all or part of the Services from another company or otherwise interfere with the relationship between CLVA and any of its clients.
5.2 This clause survives the termination or expiry of this Agreement.
5.3 The Client/Sponsor acknowledges that the above restraint obligations are reasonable considering the unique and specialised nature of the Services and extend no further than is reasonably necessary to protect the goodwill of the CLVA’s business.
6.1 The Client/Sponsor indemnifies CLVA from and against any costs, damages, loss or liability of any kind (including legal costs and disbursements in defending or settling the claim giving rise to same) however suffered or incurred by CLVA by virtue of actions of the Client/Sponsor or any breach of this Agreement by the Client/Sponsor.
6.2 The Client/Sponsor indemnifies CLVA from and against any costs, damages, loss or liability of any kind (including legal costs and disbursements in defending or settling the claim giving rise to same) however suffered or incurred by CLVA arising out of any claims, demands or other action brought by the Candidate in relation to the Services.
6.1 CLVA warrants that:
(a) the Services will be carried out in accordance with the Regulations;
(b) it has the expertise, resources and capacity to perform the Services pursuant to this Agreement; and
(c) it has all permits, licences and authorisations required to provide the Services.
7.2 CLVA gives no warranty as to the character, competence or suitability of any Candidate or that any Candidate will obtain or receive any security clearance or other qualification or approval. CLVA will simply provide an assessment or recommendation based on a telephone or in-person interview with the Candidate and the Client/Sponsor will make the final decision. The Client/Sponsor acknowledges that the answers provided by the Candidate are not independently verified by the CLVA. CLVA does not establish the identity of the Candidate.
8.1 Multiple Party
If a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly and an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.
The provisions of any Statute, which alters the effect of any provision of this Agreement, shall not apply to this Agreement so far as this lawfully can be done.
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
8.4 No Waiver
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. No waiver is effective unless it is in writing. The waiver of a power or right is effective only in that specific instance and for the specific purpose for which it was given.
No variation or modification of this Agreement shall be of any effect unless in writing and signed by the parties.
8.6 Entire Agreement
This Agreement contains the entire agreement and understanding between the parties on the subject matter of this Agreement and supersedes all prior discussions and agreements.
8.7 Good Faith
Each party agrees that it will do all things and execute all documents necessary or desirable to give full effect to this Agreement even though not specifically provided for.
8.8 Business Days
If anything is required to be done on a day that is not a Business Day, then it must be done instead on the next Business Day where “Business Day” means a week day other than a Queensland statewide public holiday.
This Agreement may be executed in any number of counterparts with the same effect as if the signatures to each counterpart were on the same instrument.
8.10 Facsimile and Email
Both parties acknowledge and agree that the original of this Agreement may be in the form of a facsimile or email transmission and agree to accept the facsimile or email transmission as the original and binding Agreement. Although this Agreement is not conditional upon the subsequent execution of an original and duplicate by the parties, either party may request the other party to execute an original and duplicate of this Agreement in which case the parties agree to do so.
8.11 Contra Proferentum
No rule of construction of documents shall apply to the disadvantage of a party on the basis that the party put forward this Agreement.
8.12 Governing Law
This Agreement is governed by the laws of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of Queensland courts in respect of any action or proceeding concerning this Agreement.
9. RELATIONSHIP OF THE PARTIES
The parties acknowledge that this Agreement is intended as a contract of service and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent, or the relationship of partnership.
10. SERVICE CHARGES
10.1 The Client/Sponsor agrees to pay CLVA the Service Charges for the Services.
10.2 The pricing for additional services not included in the Services may be agreed between CLVA and the Client/Sponsor from time to time.
10.3 During the Term, CLVA will not adjust the Service Charges.
11.1 In consideration of CLVA providing the Services to the Client/Sponsor, the Client/Sponsor must normally pay the Service Charges to CLVA prior to supply of the Services or in rare circumstances within 14 days after being provided with a Tax Invoice by the CLVA.
11.2 CLVA may charge interest at the rate of 3% per quarter on any overdue Tax Invoice.
12.1 Unless otherwise stated in this Agreement, any amounts payable under this Agreement are calculated or expressed exclusive of GST.
12.2 If GST is or becomes payable to the Australian Taxation Office by either party in relation to a supply under this Agreement, the recipient of that supply must pay to the party making that supply an amount equal to the GST.
12.3 The recipient is not obliged to pay any GST to the supplier unless a valid Tax Invoice has been issued.
12.4 Any party that becomes aware of the occurrence of any adjustment event in connection within this Agreement must notify the other party as soon as possible. The parties must then take whatever steps are necessary and make whatever adjustments are required to ensure that any additional GST, or refund of GST, on that supply is paid no later than 20 Business Days after the parties first become aware of the adjustment event.
13. AUSTRALIAN PRIVACY PRINCIPALS (APP)
a) CLVA will take reasonable steps to ensure that the personal information we collect for Suitability Assessment & Assessment Training is accurate, up-to-date and complete (APP 10.1). CLVA will take reasonable steps to ensure that the personal information it collects during the SAI is accurate, up-to-date and complete.
b) CLVA will take reasonable steps to ensure that the personal information we use or disclose is accurate, up-to-date, complete and relevant (APP 10.2). After the collection, analysis and quality assurance, and after the Result has been sent to the Client/Sponsor, we de-identify personal information (including telephone numbers, voice recordings and transcripts) before the Assessment is archived.
c) CLVA will not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection (Assessment & Training) unless CLVA reasonably believes that the use or disclosure is reasonably required by enforcement body (APP 6).
d) The Client/Sponsor is approved to arrange a third party Auditor to examine a sample of relevant SAI,SAR,REC to ensure CLVA Service Agreement compliance. The number of cases to be reviewed and the time spent on our system by the Auditors must be agreed to in advance and if deemed excessive by CLVA may incur additional costs born by the Client/Sponsor.
14. RESOLUTION OF DISPUTES
14.1 If any dispute arises between the parties in relation to this Agreement, the dispute will be determined by an Expert. The parties may agree on an appropriately qualified person who will be appointed to fill that role.
14.2 If the parties cannot agree who will be the Expert, either party may request the person acting for the time being as the President of the Queensland Law Society to nominate an appropriately qualified person who will be the Expert.
14.3 The Expert will be deemed to be an expert and not an arbitrator and their decision on any issue referred to them will be binding on the parties except in the case of a manifest error.
14.4 Each party may make written submissions to the Expert, but must give copies of the submission to the other party at the same time as the submission is given to the Expert.
14.5 The parties must provide the Expert with all information and assistance the Expert reasonably requires.
15.1 Notices under this Agreement must be in writing and may be given by a party or that party’s solicitor or authorised agent.
15.2 Notices are effectively given if:
(a) delivered or posted to the other party or its solicitor; or
(b) sent to the facsimile number or email address of the other party or its solicitor designated in any notice or written communication given by the recipient to the sender.
15.3 Posted notices will be treated as given one Business Day after posting.
15.4 Notices sent by facsimile will be treated as given when the sender obtains a clear transmission report.
15.5 Notices sent by email will be treated as given when they become capable of being retrieved by the addressee.
15.6 Notices given after 5.00pm will be treated as given on the next Business Day.
15.7 Notices or other written communications by a party’s solicitor will be treated as given with that party’s authority.
16. FORCE MAJEURE
16.1 A party is not liable for failure to perform this Agreement to the extent and for so long as its performance is prevented or delayed because of a Force Majeure Event and without the fault or negligence of that party, but only if that party:
(a) Immediately gives written notice to the other party of the occurrence and details of the Force Majeure Event and its likely duration; and
(b) Does everything reasonable to recommence performing its obligations under this Agreement quickly.
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires:
“Agreement” means this document, including any schedule or annexure to it;
“Business Day” means a day that is not a Saturday, Sunday or any
other day which is a public holiday or a bank holiday in the place
where an act is to be performed or a payment is to be made;
“Candidate” means any person nominated by the Client/Sponsor who is
the subject of the Services provided by CLVA to the Client/Sponsor
under the provisions of this Agreement;
“Commencement Date” means the date of when all conditions in this
agreement are agreed to;
“Expert” means an independent person appointed as an expert to determine any issues or disputes pursuant to this Agreement.
“Force Majeure Event” means any strikes, lockouts, bans, or other industrial disturbances, acts of the enemy, wars or conditions arising out of or attributable to wars, whether declared or undeclared, blockages, insurrections, riots, epidemics, landslides, lightning, earthquakes, storms, floods, washouts, fire, explosions or other events of similar kind to the preceding events;
“GST” has the same meaning given in A New Tax System (Goods and Services Tax) Act 1999;
Intellectual Property means the copyright, trademarks and service marks, rights in logos and getup, inventions, confidential information, trade secrets and know-how and business systems and manuals, including any aid memoirs, referees reports, analysis notes/reports and interview records and including any rights to use any such intellectual property.
“Regulations” means State of Queensland and Commonwealth statutes, standards and regulations relating to the provision of the Services;
“Service Charges” means the service charges specified in this Agreement;
“Services” means the services specified in this Agreement;
“Tax Invoice” has the same meaning given in section 195.1 of A New Tax System (Goods and Services Tax) Act 1999;
“Term” means the term specified in this Agreement;
Unless otherwise stated, references to:
(a) One gender includes the others;
(b) The singular includes the plural and vice versa;
(c) A person includes a body corporate, association or other entity and vice versa;
(d) A party includes the party’s executors, administrators, successors and permitted assigns;
(e) An Act includes an Act that amends, consolidates or replaces the Act and all regulations, orders-in-council, by laws, ordinances and statutory instruments issued or made under those Acts;
(f) A section or other provision of an Act includes a section or provision that amends, consolidates or replaces the section or provision;
(g) Money is a reference to Australian currency;
(h) A time of day is a reference to Queensland time;
(i) An agreement or document is to that agreement or document as amended, supplemented, novated or replaced from time to time;
(j) Writing includes a facsimile or email and any other means of
reproducing words in a tangible and permanently visible form in
Headings are for convenience only and do not form part of this
Agreement or affect its interpretation.
1.4 Grammatical Similarities
Where a word or phrase is specifically defined in this Agreement, other
grammatical forms of that word or phrase bear meanings corresponding to
and consistent with that definition.
Each paragraph or sub-paragraph in a list is to be read independently
from others in the list, unless the context otherwise requires.
18.1 The Subscription Expiry Date is the end of the Term. This could be Monthly or Yearly.
19.1 Either party may terminate this Agreement by written notice given to the other party if:
(a) the other party breaches any provision of this Agreement; and
(b) the breach is incapable of remedy; or
(c) the breach is capable of remedy and the other party fails to remedy the breach within 10 Business Days of receiving a notice requiring it to do so.
19.2 On termination of this Agreement no party has further rights or obligations under this Agreement, except rights and obligations arising prior to termination.