Terms of Service

Understanding this agreement

This Agreement contains terms which apply to the provision of services, purchase of products and hire of equipment. It also contains general terms, which apply to all of the above. For more information on which terms apply to you, go to clause ‎17.
You’ll see we use capitalised terms throughout this document. These terms have been defined to make the document easier to read. For the meanings of each capitalised term, go to clause ‎16.

Background

Tridevi Wellness is a holistic alternative and complementary health service specifically for women, especially as it relates to reproductive and hormonal health.
Tridevi Wellness offers certain products and services to its clients.
The Client has requested that Tridevi Wellness provide them with products or services.
Tridevi Wellness has agreed to provide the product(s) and/or service(s) on the terms set out in this document.

Parties

This Agreement is between Tridevi Wellness (referred to in this document as “Tridevi Wellness” or “We” or “Us”) and the Client (referred to in this document at “the Client” or “You”).

SERVICE TERMS

The following terms apply if You are purchasing a Service from Us:

1. Engagement

1.1. You engage us to deliver the Services to You.
1.2. We will provide the Services to You in accordance with the Scope.
1.3. Any modifications to or expansions of the Scope will only be effective if agreed in writing.

2. Pre-Service Essentials

2.1. It is essential that You do the following by the Business Day before the agreed date for delivery of the Service:
a. read the Pre-Steaming Guidelines, which form part of this Agreement; and
b. return to Us an intake form with complete, accurate and up-to-date information; and
c. read, sign and return to Us our Risk Waiver.
2.2. This clause ‎2 is a condition precedent to this Agreement. If you do not comply with this clause. We will be under no obligation to deliver the Service to You.

3. Time for Payment

3.1. You agree to pay Us the Fees in full on delivery of the Service to You, unless We have earlier agreed in writing to accept payment by instalments.
3.2. If We agree to accept payment of the Fees by instalments, You must pay the Fees to Us by the agreed instalments at the agreed intervals or by the agreed dates.
3.3. You agree to make all payments of Fees to Us as agreed, without deduction or set-off.

4. Client Responsibilities

4.1. You must:

work collaboratively with Us, including by responding to requests and providing all relevant information in a timely manner;
arrange for Our representatives to be given access to a suitable and safe location for delivery of the Service (if booking an in-home consult);
attend any online appointment using the technology directed by Us (if booking a virtual consult);
follow Our instructions during the delivery of the Service; and
not deviate from any customised steam plan We provide to You.

4.2. If you do not comply with Our requirements as set out above, this may impact the delivery of the Service. We will not be liable for any delay or other impact on the Service as a result of a failure to comply.

5. Client Warranty and Indemnity

5.1. You warrant to Us:

all information You provide to Us (or which is provided to Us on your behalf) is complete and accurate;
You have read, understand and will comply with the Pre-Steaming Guidelines;
You understand that failing to provide relevant information may result in a greater risk of injury to You or others;
You are in a good physical condition and do not suffer from any known disability or condition (including but not limited to pregnancy) which would prevent or limit Your participation in the Service;
You have no reason to believe you are likely to have an adverse reaction to the Services;
You have purchased and agreed to receive the Service voluntarily;
You freely and willingly accept and assume all the risks of receiving and participating in the Service without exception;
You engage in the Service entirely at your own risk;
You have approval from your doctor or medical professional to receive the Service, or You have voluntarily decided not to seek out that approval after having been urged by Us to do so;
You have not been advised by a doctor or medical professional not to receive the Service;
You will not rely on the Service as an alternative to advice from a medical professional or healthcare provider and will never delay seeking medical advice, disregard medical advice, or discontinue medical treatment as a result of any information provided before, during, or after the Service is delivered; and
You understand and agree that all medical related information is for informational purposes only.

5.2. To the maximum extent permitted by law, You indemnify Us and hold Us Harmless on a continuing basis from and against any losses We, You or any person suffer in relation to any breach of the warranties set out in this clause ‎5, including but not limited to:

allergic reactions where You have not informed Us of the existence, nature or severity of the allergy; and
damages that occur as a result of inappropriate, improper or unauthorised use of a Product.

6. Exclusion of Liability for Recreational Service

6.1. You understand and agree that the Service We agree to supply to You is a recreational service:

within the definition set out in section 139A(a) of the Australian Consumer Law, being a service that consists of participation in an activity that involves a significant degree of physical risk and is undertaken for the purposes of recreation, enjoyment or leisure; and
within the definition set out in section 5N of the Civil Liability Act 2002 (NSW), being a service supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity.

6.2. We exclude:

the application of all the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law; and
our liability to You for Our failure to comply with a guarantee that applies under that Subdivision to the supply of the Service to You.

6.3. The exclusion of liability in clause ‎6.2.1 is limited to Our liability for:

death;
a physical or mental injury which You suffer, including the aggravation, acceleration or recurrence of such an injury;
the contraction, aggravation or acceleration of a disease by You;
the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to You that is or may be harmful or disadvantageous to You or that may result in harm or disadvantage to You.

6.4. The exclusion of liability in clause ‎6.2.2 does not apply to significant personal injury suffered by a person that is caused by Our reckless conduct.

7. Consent to Medical Treatment

7.1. You authorise Us to get emergency medical treatment on your behalf and at your expense if You suffer an injury or illness, or if We form the view that emergency medical attention is necessary or advisable before, during or after the Service.

8. Postponement

8.1. We may, in Our absolute discretion, agree to a postponement of delivery of the Service.

8.2. Unless otherwise agreed in writing:

You must submit any request to postpone the Service to Us in writing at least 1 clear Business Day before the original agreed time for delivery of the Service; and
Any new date and time for delivery of the Services is subject to Our availability.

9. Cancellation

9.1. You can cancel a Service by giving us at least 7 clear days’ notice in writing before the the original agreed time for delivery of the Service.

PRODUCT PURCHASE TERMS

The following terms apply if You are purchasing a Product from Us:

10. Time for Payment

10.1. You agree to pay Us the Fees in full at the time of purchase.

10.2. If you fail to pay the Fees, or if a payment is returned or denied prior to Us dispatching the Product to You, we will immediately stop delivery of the Product unless and until we receive your payment in full.

11. Postage and Delivery

11.1. We post Products within Australia only. We will use a delivery service provider to help Us get Our Product to You.

11.2. You agree to pay to Us postage fees as calculated at checkout on our Website.

11.3. We will process Your order within 48 hours of receipt of payment and do our best to dispatch it for delivery on the same or the next Business Day, except in the case of Products which are marked Out of Stock or Back Order on the Website. We will endeavour to dispatch those Products within 4-6 weeks of receipt of your payment. You acknowledge that We are not liable for any delay in dispatch of your order.

11.4. Delivery times will vary between orders – We will do our best to let You know when to expect your delivery, however this is largely dependent on the delivery service provider. For more information on delivery timeframes, refer to our FAQs page on our Website.

11.5. You must give us correct postal address details. Your postal address can not be a locked bag, parcel locker or parcel collect locations, as some providers cannot deliver to these Australia Post owned properties. We won’t be responsible for any incorrect or failed delivery if you don’t supply current, accurate postal address details in accordance with this clause. If Your order is undelivered due to your error and returned to Us, We may require You to pay further postage fees or terminate this Agreement and issue a refund for the Fees.

11.6. We will give You a tracking code for You to track the progress of your order. You agree to contact Us if you think your order has been lost or misdelivered. We will investigate your missing order, however We make no representations as to responsibility or liability for any lost or misdelivered order. If your order is lost or damaged in transit, You acknowledge that Our liability is limited to the amount of any compensation We recover from the delivery service provider, less Our reasonable costs of investigating and applying for any compensation, unless otherwise required by law.

11.7. Risk in each order passes to You on delivery. You must sign for the delivery, unless you’ve given authority to leave unattended. If You have authorised Us or our agents to leave your order unattended at an address, the order will be taken to have been delivered on leaving the order at the address. If You ask us to deliver to an address and You are not there, but someone else at the address signs for the parcel, the order will be taken to have been delivered on leaving the order with that person.

11.8. If We accept a return of a Product, risk in the Product will revert to Us on receipt by Us. We recommend You insure any Product you return to us against loss or damage in transit.

12. Client Warranty and Indemnity

12.1. You warrant to Us:

all information You provide to Us (or which is provided to Us on your behalf) is complete and accurate;
You have read, understand and will comply with the Pre-Steaming Guidelines (if applicable to the Product You are purchasing);
You understand that failing to provide relevant information may result in a greater risk of injury to You or others;
Your purchase and/or use or consumption of the Product is voluntary;
You freely and willingly accept and assume all the risks of receiving and using the Product without exception;
You will not use the Product improperly and will follow all instructions We give you to properly operate, maintain, replace, prepare or care for the Product.

12.2. To the maximum extent permitted by law, You indemnify Us and hold Us harmless on a continuing basis from and against any losses We, You or any person suffer in relation to any breach of the warranties set out in this clause, including but not limited to:

allergic reactions where You have not informed Us of the existence, nature or severity of the allergy; and
damages that occur as a result of inappropriate, improper or unauthorised use of the Product.

PRODUCT HIRE-SPECIFIC TERMS

The following terms apply if You are hiring a Product from Us:

13. Time for Payment

13.1. You agree to pay the Fees at the agreed intervals or by the agreed dates in full and without deduction or set-off.

14. Client Warranty and Indemnity

14.1. You warrant to Us:

all information You provide to Us (or which is provided to Us on your behalf) is complete and accurate;
You have read, understand and will comply with the Pre-Steaming Guidelines (if applicable to the Product You are hiring);
You understand that failing to provide relevant information may result in a greater risk of injury to You or others;
Your hire and/or use of the Product is voluntary;
You freely and willingly accept and assume all the risks of receiving and using the Product without exception;
You will not use the Product improperly and will follow all instructions We give you to properly operate, maintain, replace, prepare or care for the Product.
You will only use the Product for its intended purpose and in accordance with any instructions and recommendations We provide to You, including any instructions posted on the Product about its use, set-up, maintenance or storage;
You will not tamper with, repair or modify the Product, or use the Product improperly or for any commercial purpose.

14.2. To the maximum extent permitted by law, you indemnify Us and hold Us harmless on a continuing basis from and any losses We, You or any person suffer in relation to any breach of the warranties set out in this clause, including but not limited to:

damages that occur as a result of inappropriate, improper or unauthorised use of the Product.

15. Hire and Return of Equipment

15.1. You agree to the Postage and Delivery terms set out in clause ‎11.

15.2. You agree to hire the Product for the Hire Period.

15.3. The Hire Period will start on the date of delivery of the Product to you.

15.4. We retain legal title to the Product. Nothing in this Agreement will cause any transfer of title or ownership in the Product to You or any other person.

15.5. You must return the Product in the same condition as it was provided within 7 days’ of expiry of the Hire Period or termination of this Agreement.

15.6. You may return the Product to us prior to the expiry of the Hire Period, however we will not provide any refund or credit for any unused portion of the Hire Period.

15.7. If you do not return the Product as required, You agree to pay Us immediately on demand an amount equal to:

the difference between the current market value of the Product on delivery to You and the Product as We received it, as reasonably determined by Us; or
if you fail to return the Product, the estimated total current market value of the Product at the end of the Hire Period, as reasonably determined by Us.

GENERAL TERMS

16. Definitions

The terms in this document have the following meanings, unless the context indicates otherwise:

Agreement	means this Agreement between Tridevi Wellness and the Client.
Australian Consumer Law	means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day	means a day on which banks are open for business in Melbourne, Victoria, other than a Saturday, Sunday or public holiday.
Client	means the person specified in the Quote or, in the case of an online booking or purchase, the person completing the booking or purchase, whose name and contact details are set out in the booking or purchase form.
Confidential Information	refers to any data or information relating to Tridevi Wellness or the Client, whether business or personal, written or oral and regardless of how or when it was provided to the other party, which would reasonably be considered to be private or proprietary to Tridevi Wellness or the Client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to Tridevi Wellness or the Client, and includes the terms of this Agreement (except to the extent that disclosure of the terms is necessary for the purpose of legal or financial advice).
Fees	means the fees payable by the Client to Tridevi Wellness for the purchase or hire of the Product or Service, as set out in the Quote or on the Website at the time of purchase, and are inclusive of GST, unless otherwise stated.
General Terms	means the clauses which appear under the heading General Terms, being clauses ‎16 to ‎36 inclusive.
GST	has the same meaning as given in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Hire Period	means the period of 1, 3 or 6 months as set out in the Quote or selected in the booking or purchase form on the Website.
Insolvency Event	includes any event which indicates that the party in question is unable to pay their debts as they fall due, including any of the following events: a) becoming unable to pay debts as they fall due; b) an act of bankruptcy; c) enter into a composition or arrangement with creditors; d) levied by creditors, debenture holders or trustees under a floating charge; e) institution of any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in winding up (except for the purposes of reconstruction); f) making of a winding up order; and g) appointment of an official manager, receiver, receiver/manager, provisional liquidator or liquidator, but does not include a transfer of ownership.
Intellectual Property	means any works or materials to which Intellectual Property Rights attach, including any works created by Tridevi Wellness in the course of this Agreement, including but not limited to any steaming plan.
Intellectual Property Rights	means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, 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, and all digital and electronic rights.
Pre-Steaming Guidelines	means the document entitled Pre-Steaming Guidelines provided by Tridevi Wellness to a Client, as updated from time to time.
Product	means the product which Tridevi Wellness offers for sale or hire on its Website or by direct offer to the Client, which may include steaming seats and wombcare products, as set out in the Quote or, in the case of an online order, on the checkout page of the Website at the time of purchase.
Product Hire Terms	means the clauses which appear under the heading Product Hire Terms, being clauses ‎13 to ‎15 inclusive.
Product Purchase Terms	means the clauses which appear under the heading Product Purchase Terms, being clauses ‎10 to ‎12 inclusive.
Quote	means the quotation document prepared by Tridevi Wellness for the Client accompanying this Agreement.
Risk Waiver	means the document entiled Risk Waiver provided by Tridevi Wellness to the Client and accompanying this Agreement.
Scope	means the scope of the Service to be provided to the Client under this Agreement, as set out in our Quote or, if booking online, on the services page on the Website at the time of booking.
Service	means the service which Tridevi Wellness offers for sale to the Client as described in the Quote accompanying this document or, in the case of an online booking, on the Website at the time of completing the booking request form.
Service Terms	means the clauses which appear under the heading Service Terms, being clauses ‎1 to ‎9 inclusive.
Tridevi Wellness	means the provider of the Products and Services the subject of these terms, with the following details: Name: TRIDEVI WELLNESS PTY LTD (ACN 659 117 567) trading as Tridevi Wellness Contact Address: 552 VICTORIA STREET, MELBOURNE VIC 3051 Contact Name: Sanjukta Glentworth Contact Email: sanjukta@tridevi.com.au Contact Phone: +61 434 631 956
Website	means Tridevi Wellness’ website located at http://www.tridevi.com.au
Website Terms and Conditions	means Tridevi Wellness’ terms and conditions of use of its Website as mentioned on the Website

17. When and how these terms apply

17.1. The General Terms apply to the supply by Us of any Product or Service to You.

17.2. The Service Terms will also apply, but only if We are supplying a Service to You.

17.3. The Product Purchase Terms will also apply, but only if We are selling a Product to You.

17.4. The Product Hire Terms will also apply, but only if We are renting a product to You.

17.5. Our Website Terms and Conditions will also apply, but only if You’ve arrived here through our Website.

17.6. If this document is accompanied by a Quote, these terms incorporate by reference the scope of services, pricing and other details of the proposed engagement as outlined in the Quote.

17.7. If there is an inconsistency between any of the documents referred to in this clause, then:

Service Terms, Product Purchase Terms and Product Hire Terms prevail over the General Terms and any Quote; and
Service Terms, Product Purchase Terms, Product Hire Terms, General Terms and any Quote prevail over the Website Terms and Conditions.

18. Accepting these terms

18.1. You must accept these terms before we will supply the Product or Service to you.

18.2. You can accept these terms by:

ticking the ‘I agree’ checkbox (or taking a similar action);
digitally signing or indicating acceptance of the Agreement using software We make available; or
signing a hard copy of these terms and returning the signed document to Us.

18.3. This Agreement will start when it is accepted (subject to clause ‎20.2) until each party has carried out their obligations or until the Agreement is terminated.

19. No medical advice

19.1. You understand that all information We provide before, during, or after this Agreement is:

for informational purposes only;
is not intended to constitute medical advice;
is not a replacement for medical advice;
must not be relied on as medical advice.

19.2. You should consult a medical professional for medical advice as required for your individual circumstances.

20. Fees and Payments

20.1. You agree to pay the Fees to us as set out in this Agreement.

20.2. If You submit an order through the Website, no agreement is formed until We process and accept your order and send You a confirmation email. If there’s been an error leading to your order (such as a pricing or stock error), We may choose not to fill the order. In those circumstances, We will contact you to discuss your options (for example, placing an order at the correct price, delaying your order or exchanging your item for another). If We can’t or won’t fill your order, We will process a full refund as soon as practicable.

20.3. You agree to pay the Fees by any payment method We accept at the time of payment, as set out on the Website or in any Quote.

20.4. You will be responsible to pay any merchant fees charged by a third-party payment processor (such as Stripe or PayPal).

20.5. In making a payment, You warrant to Us that you have read and agreed to the terms of any third party payment gateway or processor or credit provider (such as PayPal, AfterPay or ZipPay), which are available on their respective websites. You understand that these services are provided by third parties, and are made available to You on our Website for convenience only. We’re not responsible for any issues, loss or damage arising out of those facilities. If You have an issue with a third party provider on the Website, please contact them directly.

20.6. If You fail to pay any amounts due under this Agreement after 7 days from the due date, We may (in our absolute discretion):

charge interest at the rate of 10% per annum on all outstanding amounts, with interest to accrue daily until the outstanding amounts are paid in full;
refer the matter to a debt collection agency or solicitor, in which case You will be liable to pay any costs We incur or become liable to pay for the collection of such unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis; and/or
recover from You on demand any costs We incur associated with a denied or returned payment, including banking fees and charges.

21. Exclusion of Warranties

21.1. We provide our Products, Services and any information or complementary products “as is” without any representations or warranties, express or implied.

21.2. We specifically and expressly exclude:

all other express or implied warranties and guarantees in relation to the Products and Services; and
any warranty, guarantee or representation as to any results or outcomes which may be achieved through the use of a Product or Service; and
any term or condition which would otherwise be implied into this Agreement.

21.3. The exclusion in clause ‎21.2 does not apply to any warranty or guarantee You are entitled to pursuant to the Australian Consumer Law or any other law, except to the extended provided for in clause ‎6 (if that clause applies).

21.4. You warrant that You have not relied on any warranty, guarantee or representation given by Us in entering into this Agreement.

22. Exclusion of Liability and Indemnity

22.1. Except to the extent provided for in clause ‎6 (if that clause applies), nothing in this Agreement is intended to exclude any right or guarantee to which You are entitled under the Australian Consumer Law.

22.2. Subject to clause ‎22.1, We exclude all liability to You or any other person whether arising by contract, in tort, by negligence (by Us or others), under statute or otherwise for any injury, loss, damage, death, economic loss, whether consequential (including loss of business profits or reputational damage), direct or direct, caused by or connected with the Product or Service.

23. Termination

23.1. We may terminate this Agreement immediately on written notice to You if:

You engage in conduct which we reasonably consider to be illegal, immoral, inappropriate, unfair, abusive, harassing, obstructive or deceptive, or which may otherwise jeopardise Our name, reputation, the safety of Our representatives or Our business;
immediately if a clause of this Agreement entitles us to elect to do so.

23.2. Either party may terminate this Agreement:

on expiry of notice given, if the other party materially breaches a term of this Agreement and fails to remedy the breach within 14 days after having received notice in writing of the breach; or
immediately on written notice to the other party, if an Insolvency Event occurs in relation to a party.

23.3. If termination is disputed, it will be dealt with in accordance with the dispute resolution provisions of this Agreement.

24. Consequences of Termination

24.1. If this Agreement is terminated, all rights and obligations accrued up to the date of the termination (including, in particular, your obligation to pay Fees) are not affected, unless otherwise set out in this clause.

24.2. If this Agreement is terminated, the parties agree to return all property of the other party (including Intellectual Property, hired Products, information, materials, designs, data, documents, access details and the like) in their possession to the rightful owner within a reasonable time of termination.

24.3. This clause and clauses ‎5, ‎12, ‎14, ‎16, ‎21, ‎22, ‎28, ‎30, ‎31, ‎33, ‎34, ‎35 and ‎36 will survive termination of this Agreement.

25. Refund Policy

25.1. No refunds will be given for any purchase or hire of any Product or Service, other than:

refunds required to be given by law; and
refunds We agree to give in circumstances set out in this Agreement.

25.2. If You believe You are entitled to a refund under the Australian Consumer Law, please contact Us at hello@tridevi.com.au as soon as possible. 25.3. You must inform Us of any fault with a Product in the period from delivery until the fault or problem would reasonably be expected to appear. Based on the nature of our Products, we estimate this period to be as set out below:

Product	Reasonable fault identification period
Steaming seat	7 days
Steaming herbs	7 days
Womb-care products, such as teas	7 days

26. Discounts and Coupon Codes

26.1. We may offer discounts or coupon codes from time to time.

26.2. Discounts and coupon codes are not available in conjunction with any other offer (for example, if We have two promotions on offer at the same time, You can only apply one discount or coupon code to a purchase, not both).

26.3. Discounts and coupon codes are available for the stated time, or else for a period of seven (7) days from the date that the offer was first made, or until stocks last (whichever occurs first).

26.4. Unless We specify otherwise in our offer, discounts and coupon codes are available on full priced Products and Services only.

26.5. Coupon codes are non-transferable and are not redeemable for cash under any circumstances.

26.6. We reserve the right to revoke any discount offer or coupon code at any time without notice.

27. Credit Policy

27.1. If for any reason We agree to grant You credit, the grant of credit is subject to the terms of this Agreement and applicable legislation. If there is an inconsistency between this clause and applicable legislation:

if the legislation allows Us to vary the terms by agreement, the terms of this Agreement are used;
if the legislation does not allow Us to vary the terms by agreement, the terms provided for in applicable legislation are used.

27.2. Credit must be redeemed within 12 months from the date of issue and will expire after this date. It will then be unable to be redeemed, replaced or refunded.

27.3. Credit is non-transferable and is not redeemable for cash under any circumstances, including any partial balance remaining after redemption.

28. Gift Vouchers

28.1. We may sell gift vouchers on the Website from time to time.

28.2. The gift voucher will be delivered to you by email to the address provided by you and may be redeemed on our Website (if available) or by contacting Us.

28.3. It is your sole responsibility as the purchaser to ensure that the voucher is stored securely and given only to the intended recipient.

28.4. Unless the voucher is expressed to be subject to other terms and conditions, these conditions apply.

28.5. Vouchers are redeemable for Products or Services sold by Us on the Website only and can’t be refunded, redeemed for cash or applied toward any special, promotion or discounted offer.

28.6. Vouchers can be redeemed for three (3) years from the date of purchase and will expire after this date unless:

a. the voucher is able to be reloaded or topped up;

b. the voucher is for a Product or Service available for a limited time where the card or voucher expires at the end of that period;

c. the voucher is part of a temporary marketing promotion;

d. the voucher has been donated free of charge for promotional purposes;

e. the voucher has been sold for a Product or Service at a genuine discount;

f. the voucher is supplied as part of an employee reward scheme;

g. the voucher is given as a bonus in connection with a purchase of a Product or Service as part of a customer loyalty program run by Us; or

h. the voucher is a second-hand gift card, in which case the voucher can be redeemed for twelve (12) months from the date of purchase or the date set out on the voucher and will expire after that date.

28.7. Vouchers are non-transferable and are not redeemable for cash under any circumstances, including any partial balance remaining after redemption.

29. Confidentiality

29.1. The parties recognise that it may be necessary during the term of this Agreement to reveal Confidential Information to each other. Each party agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which they have obtained, except as authorised by the other party or as required by law and will undertake reasonable commercial measures to maintain the confidential nature of the Confidential Information, including the signing of reasonable non-disclosure agreements by personnel of either party on request.

30. Non-disparagement

30.1. Subject to law and any rights You have in connection with the enforcement of this Agreement, You must not at any time:

disparage, permit or authorise the disparagement of Us, any of Our related entities or any director, officer, employee, agent, consultant or adviser of Us or Our related entities; or
otherwise make, permit or authorise the making of any statement in anyway relating to or connected with any matters in dispute which is calculated or is reasonably likely to cause damage to Us, any of Our related entities or any director, officer, employee, agent, consultant or adviser of Us or Our related entities (including damage to their respective reputations).

31. Promotion

31.1. Subject to compliance with the confidentiality provisions of this Agreement, You consent to Us using your first name and any testimonial provided to Us to promote Our business.

31.2. You grant Us a worldwide, royalty-free, revocable licence of your Intellectual Property Rights in any such testimonial for the limited purpose of promotion of Our business.

31.3. Promotion may include (but is not limited to) publishing the testimonial in writing on any website, social media pages, brochures and other marketing material (whether digital or print).

32. Intellectual Property

32.1 All Intellectual Property (including all derivatives of the Intellectual Property) created by Us in the course of this Agreement will be Our exclusive and sole property.

32.2. You are expressly prohibited from providing copies of Our Intellectual Property to any other person. You understand and agree that such an action would amount to a breach of Our Intellectual Property Rights, entitling Us to take immediate action to enforce Our rights.

33. Dispute Resolution

33.1. If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause.

33.2. The party claiming the dispute must first inform the other party in writing of the following:

the nature of the dispute;
the outcome they desire to resolve the dispute, and
the action they believe will settle the dispute.

33.3. On receipt of the notice by the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 20 Business Days.

33.4. If the parties are unable to resolve the dispute in that time, the parties must agree on selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of Victoria appoint a mediator) and will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance). The parties must each pay their own costs associated with the mediation. The parties consent to mediation being held virtually, unless either party objects on reasonable grounds, in which case the mediation must be held in the capital city of Victoria in Australia, unless otherwise agreed in writing.

33.5. All communications made by the parties arising out of this dispute resolution clause are confidential and to the maximum extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

34. Jurisdiction

34.1. The law of New South Wales governs this Agreement and the supply of any Product or Service pursuant to this Agreement.

34.2. Each of the parties to this Agreement irrevocably agrees that the courts of Victoria will have non-exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this Agreement or its formation or validity and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of Victoria.

35. General

35.1. Time of the essence
Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.

35.2. Assignment
We may assign or otherwise transfer Our obligations under this Agreement on notice to You. You must not assign, transfer, charge, encumber or otherwise deal with any of your rights or obligations under this Agreement.

35.3. Subcontracting
We may sub-contract any of Our obligations under this Agreement.

35.4. Relationship of parties
The parties acknowledge that this Agreement is intended as an agreement for the provision of goods or services only. This Agreement does not create any other relationship between the parties, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.

35.5. Entire agreement
This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this Agreement.

35.6. Severability

If anything in this Agreement is unenforceable, illegal or void, it is severed, and the rest of the Agreement remains in force.
It is the intention of the parties that this clause ‎35.6 apply to clause ‎6, so that if the exclusion of liability intended by that clause would be effective under applicable legislation but for any one or more word, sentence or sub-clause (Portion) of that clause, the Portion (or Portions) is severed and the rest of the clause remains.

35.7. Waiver
Any waiver by any party to a breach of this Agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.

35.8. Force majeure
Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, by fire, flood, other extreme weather event or natural disaster, riot, strike, act of war, terrorist attack, nuclear event, pandemic, epidemic, widespread contagion, quarantine restriction, critical infrastructure failure, severe disruption to virtual infrastructure, restriction or prohibition or any other action by any government or semi government authority, or major injury or illness of key personnel.

35.9. Variation
Any amendment or variation to this Agreement is not effective unless it is agreed in writing by both parties (including via email), unless otherwise set out in this Agreement.

35.10. Notices

A notice required to be given to a party under this Agreement must be in writing and delivered to that party to their address as set out in clause ‎16.
Notice can be given using any of the delivery methods referred to in Column A of Table 33.
Notice will be deemed received as set out in Column B of Table 33, however if a notice is received after 5.00pm on a Business Day or on a day that is not a Business Day, then notice is deemed received at 9.00am the next Business Day.

Table 33

Column A	Column B
Method of Notice	When is notice received
Delivered by hand	The date of delivery
Registered or express mail	The third Business Day after posting
Unregistered mail	The fourth Business Day after posting
By email	The date the email is sent, provided the sender’s email system does not receive a delivery failure notice

36. Interpretation

In the interpretation of this Agreement:

36.1. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;

36.2. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;

36.3. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement;

36.4. Grammatical forms of defined words or phrases have corresponding meanings;

36.5. Parties must perform their obligations on the dates and times fixed by reference to Victoria, Australia;

36.6. Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

36.7. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;

36.8. References to a party are intended to bind their executors, administrators and permitted transferees; and

36.9. Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.