Terms & Conditions for the Provision of Services
DEFINITIONS:
Contract: means the contract for the provision of Services, which
consists of these Conditions and the Order.
Conditions: means these Terms & Conditions for the Provision of
Services.
Intellectual Property Rights: includes all present and future
copyright, all proprietary rights in relation to inventions (including
patents), registered and unregistered trademarks, confidential
information (including trade secrets and know how) registered
designs, circuit layouts, and all other proprietary rights resulting from
intellectual activity in the industrial, scientific, literary or artistic fields
whether registered or not and whether capable of registration or
not.
Key Personnel means the Service Provider’s personnel who are
specified as such in the Order.
Law as at a particular date includes any act, statute, subordinate
legislation, by-law, regulation, rule, order, ordinance, decree,
proclamation, ruling, determination, judgement, rule of common law,
or equity in effect as at that date.
Order means the purchase order in which these Conditions are
referenced.
Price means the price for the Services as specified in the Order.
Mastercare means Mastercare Australasia Pty Ltd ABN 99 0917 882
33, each of its related bodies corporate (as defined in the
Corporations Act 2001) and the employees, agents and subcontractors of any of them.
Quality Agreement (if applicable) means the quality agreement
entered in to between the Service Provider and Mastercare.
RCTI Schedule (if applicable) means the schedule attached to these
Conditions which sets out the terms on which an RCTI will be issued
and paid.
Service Levels means the service levels annexed to these Conditions
or the Order or any other service levels agreed in writing between the
parties.
Service Provider means the person (or the person’s agent) to whom
the Order is addressed.
Services means the services (or any of them) specified in the Order.
Supply Date means the date and, where relevant, the time specified
in the Order by or on which the Services must be provided by the
Service Provider (or such other date or time as may be agreed in
writing).
1. Provision of Services
The Service Provider must supply the Services to Mastercare in
accordance with the Contract.
2. Performance of Services
The Service Provider must:
(a) provide the Services:
(i) with due care and skill;
(ii) in a proper and efficient manner using that
standard of skill, diligence, prudence and foresight
that would reasonably be expected from a prudent, Services to achieve, the provision of the Services will
be performed in such a way as to achieve that result.
The warranties set out in clause 5 are in addition to any other
warranties and guarantees contained in the Order or implied
by Law or provided by the Service Provider or any third party.
6. Acceptance of Order
(a) The Order for the provision of Services is binding
on the Service Provider.
(b) Mastercare may cancel the Order at any time prior
to 24 hours before the Supply Date.
7. Price
The Price for the Services is fixed.
8. Invoice, Payment and Audit
(a) Unless the Service Provider has signed the RCTI
Schedule, the Service Provider must submit an invoice
rendered in accordance with clause 8(b) to Mastercare
within 5 Business Days after provision of the Services.
(b) The invoice must:
(i) be rendered in respect of the Order only;
(ii) specify the Order number and Mastercare’ contact
name;
(iii) specify the Service Provider’s bank details;
(iv) be sent to the invoicing address indicated on the
Order; and
(v) include such detail and be supported by such
documentary evidence as Mastercare reasonably
requires to validate the invoice.
(c) Subject to clauses 8(d) and 8(e), Mastercare will pay, by
electronic funds transfer, the invoiced amount to the
Service Provider 30 days after the end of the month in
which Mastercare receives a correctly rendered invoice
that complies with clause 8(b) (or such other payment
terms as specified on the Order).
(d) If Mastercare disputes an invoice in whole or in part,
Mastercare will not be required to pay the disputed
portion until Service Provider has provided the
information referred to in clause 8(b)(v).
(e) Mastercare reserves the right to set off any amount
owing under any Order against any amount due from
the Service Provider to Mastercare for any reason
whatsoever.
(f) Mastercare may dispute the detail of any invoice and
require the correction of any error, notwithstanding
that it has paid any invoice.
(g) The Service Provider shall retain all relevant documents
relating to the provision of the Services for at least 3
years after the date of invoice. Mastercare may conduct
quality system audits or audits of the Service Provider
to ensure its obligations are complied with in full and
the Service Provider must provide reasonable
assistance to Mastercare in this regard.
(h) Mastercare’ payment for the Services will not affect the
rights of Mastercare or relieve the Service Provider of
any of its obligations under this Contract.
9. Delay
(a) Time is of the essence of the Contract, however neither party
shall be liable for fault or delay caused by an event beyond its
reasonable control provided that;
(i) such event could not have been foreseen or avoided
with proper due diligence; and
(ii) the affected party notified the other of the event and
its likely duration as soon as practicable.
(b) If the Services are not provided by the Supply Date, (or if no
Supply Date is specified, within a reasonable time after the
Order is submitted) Mastercare may, without limitation to any
other remedy which Mastercare may have as a result of those
circumstances, either:
(i) refuse the Services; or as a result of the performance of the Order, or as a result
of information that Mastercare supplies to the Service
Provider.
(e) The Service Provider shall, if requested by Mastercare, assign
to Mastercare or its nominee, the Service Provider’s entire
right, title and interest in and to any or all Contract
Intellectual Property and Improvements at no additional
charge to Mastercare and execute such documents as may be
required to enable Mastercare or its nominee to obtain
patents in Australia or overseas covering such Contract
Intellectual Property and Improvements.
14. Confidential Information
(a) The Service Provider will keep confidential the Contract
Intellectual Property and any information derived from the
Materials or otherwise communicated to the Service
Provider, including the contents of the Contract
(“Confidential Information”) and will not use Confidential
Information except as necessary for the purposes of the
Contract.
(b) The Service Provider must store all Confidential
Information in a way that minimises the risk of
unauthorised access.
(c) The Service Provider must return any Confidential
Information to Mastercare, on request.
(d) The Service Provider’s obligations under this clause 14
do not apply to any information which:
(i) is in the public domain (other than because of a breach
of any obligation of confidence owed to Mastercare); or
(ii) the Service Provider can demonstrate by evidence in
writing was in the Service Provider’s possession as at
the date of this Agreement;
(iii) subsequently comes into the possession of the Service
Provider through a third party who does not owe any
obligation of confidence to Mastercare in respect of that
information; or
(iv) the Service Provider is required by law to disclose.
15. Termination
15.1 Mastercare may terminate this Contract with immediate effect
by sending the Service Provider a written notice of that fact if,
prior to Mastercare being reasonably satisfied that the
provision of the Services has been completed:
(a) the Service Provider enters or threatens to enter into
bankruptcy, liquidation or any other form of insolvency,
administration, management or receivership or the
Service Provider enters into any scheme or
arrangement with its creditors (or circumstances exist
such that it is reasonable for Mastercare to conclude
that Service Provider may do so);
(b) the Service Provider fails to remedy to Mastercare’
satisfaction, any breach of this Contract within 14 days
after the date on which Mastercare issues the Service
Provider a written notice requiring the Service Provider
to remedy the breach;
(c) there is a change in the identity of the person who
Controls the Service Provider from that which was in
effect on the date the parties entered into this Contract;
(d) any of the Key Personnel cease to be employed by the
Service Provider; or
(e) breaches the Quality Agreement.
The Service Provider will not be entitled to any compensation
or payment as a consequence of such termination. In this
clause 15.1, “Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through
ownership of voting securities, by contract or otherwise.
15.2 Mastercare may terminate this Contract at any time by
providing 2 weeks written notice to the Service Provider.
15.3 Termination of this Contract will not affect the rights, powers,
remedies, obligations, duties and liabilities of either party
under this Contract which have accrued prior to the
expert and experienced provider of services which
are similar to the Services in Australia;
(iii) in compliance with all Laws to which the
Service Provider is legally required to
comply,
(b) act in good faith, in the best interest of Mastercare and
in a manner which is consistent with the maintenance of
the business and goodwill of Mastercare;
(c) ensure that one or more of the Key Personnel (if any)
personally perform the Services or supervise the
provision of the Services; and
(d) comply with and must cause its employees, agents and
sub- contractors who are involved in the performance
of the Services to comply with:
(i) all applicable Laws including those relating
to the provision of the Services;
(ii) all directions, including as to safety or safe
practices, issued by or on behalf of Mastercare;
and
(iii) all applicable requirements contained in
Mastercare’ Safety Rules For Contractors (where
applicable).
3. Service Levels
The Service Provider must provide the Services to a standard
which satisfies or exceeds the Service Levels.
4. Failure to meet Service Levels
4.1 Without limiting any other clause of this Agreement or any
other remedy Mastercare may have, if the Service Provider
fails to provide or perform any of the Services in a manner
which satisfies or exceeds the applicable Service Levels,
Mastercare may by notice in writing to the Service Provider,
require the Service Provider, at the Service Provider’s own
expense to:
(a) remedy any default if the default is capable of
being remedied; or
(b) re-perform the Service if the Service is capable of
being re- performed;
within the time specified in the notice (which must be
reasonable).
4.2 If the default referred to in clause 4.1 is not capable of being
remedied or the Service is not capable of being re-performed
or the Service Provider fails within the time specified in any
notice served by Mastercare under clause 4.1 to remedy the
default or re-perform the Service, Mastercare may either
(a) remedy that default or re-perform that Service itself; or
(b) have it remedied or re-performed by a third party,
and in either case, the Service Provider must pay the
reasonable costs so incurred by Mastercare.
5. Warranties
The Service Provider warrants that:
(a) the provision of Services to Mastercare by the Service
Provider will not infringe any right of any third party
(including without limitation any Intellectual Property
Rights) or applicable law, statute, regulation, code or
rule;
(b) it and its directors, officers, employees, agents and
contractors (Representatives) who will provide the
Services have the requisite knowledge, skill and
expertise to provide the Services in accordance with
the Service Levels; and
(c) where Mastercare makes known to the Service
Provider any particular purpose for which the Services
are required or the result that Mastercare desires the
(ii) terminate all or any part of the Contract; or
(iii) require the Service Provider to provide the Services by
the most expeditious means available and any additional
charges in excess of those that would usually apply will
be at the Service Provider’s expense.
10. Insurance
(a) The Service Provider warrants that it has taken out with a
reputable insurer, insurance coverage sufficient to cover any
loss or costs that may be incurred and for which the Service
Provider may become liable to Mastercare in connection with
the provision of the Services, including:
(i) professional indemnity insurance relating to the Services
on a claims made basis with an indemnity limit of not less
than $10 million per event; and
(ii) public liability insurance on an occurrence basis
with an indemnity limit of not less than $20 million
per event;
and the Service Provider must maintain such insurance for at
least 6 years after the Supply Date.
(b) On request, the Service Provider must provide Mastercare
with evidence of the currency of any insurance it is required to
obtain under this clause 10.
11. Indemnity
The Service Provider must indemnify and keep indemnified
Mastercare against any loss, damage, claim, action, cost or
expense (including, without limitation, legal expense) which
Mastercare suffers in connection with:
(a) any negligent act or failure to act by the Service
Provider or any of the Service Provider’s employees,
agents, officers or contractors;
(b) a breach of the Contract by the Service Provider; and
(c) any warranty given by the Service Provider under the
Contract being incorrect or misleading in any way.
12. GST
(a) Words and expressions used which are defined in the A New
Tax System (Services and Services Tax) Act 1999 have the
same meaning when used in the Contract.
(b) All prices referred to in the Order are inclusive of GST unless it
is specifically noted otherwise. If the prices referred to in the
Order are specifically noted to be exclusive of GST, an amount
equal to the GST payable on the taxable supply will be paid by
Mastercare. Mastercare will not be obliged to make a payment
on account of GST until the Service Provider has issued a tax
invoice to Mastercare for the supply to which the payment
relates.
(c) If payment made by one party to the other is a
reimbursement or indemnification of a cost, expense, loss or
liability incurred by that party then the payment will be
reduced by an amount for which that party is entitled to a tax
input credit.
13. Intellectual Property and Confidentiality
(a) All Intellectual Property Rights in any plans, drawings,
process information, patterns, designs or data
(‘Materials) supplied by Mastercare to the Service
Provider in connection with the Order will remain the
property of Mastercare.
(b) Any invention or improvement made by the Service Provider
to any Materials (‘Improvement’) will be the property of
Mastercare and will immediately vest in Mastercare at no
charge on its creation.
(c) All Intellectual Property Rights in any plans drawing,
process information, patters, designs or data created
by the Service Provider in connection with the Order
(Contract Intellectual Property) will immediately vest
in Mastercare at no charge on its creation.
(d) The Service Provider shall disclose promptly to Mastercare
any Contract Intellectual Property or Improvements made or
conceived by it, alone or jointly with others, in the course of termination date and which continue to be enforceable
15.4 The provisions of this Contract which deal with intellectual
property, confidentiality, warranties and indemnities survive
the termination or expiry of this Contract and may be
enforced at any time.
16. Ethics
The Service Provider shall deal with Mastercare in an entirely
ethical and honest manner consistent with Mastercares’
policy on ethics and conflict of interest, a copy of which is
available on request.
17. Non-waiver
A waiver of a breach of any of the provisions of the Contract
shall not be construed as a waiver of any subsequent breach
of such provision or of any other term or condition of the
Contract.
18. Remedies
The rights and remedies of Mastercare set forth in the
Contract are in addition to all other rights and remedies
available to Mastercare at Law.
19. Entire Agreement
The Contract constitutes the entire agreement between the
parties and overrides and excludes all previous negotiations,
requests for quotation and any other terms, oral or written,
proposed by either party and not included herein. No
amendment to the Contract will be effective unless agreed in
writing and specifically expressed to amend this Contract.
20. Assignment and Sub-contracting
(a) A party may not dispose of the Contract or any right under it,
without the prior written consent of the other party.
(b) The Service Provider must not sub-contract any of its
obligations in relation to the provision of the Services without
the prior written consent of Mastercare (which may be given
or withheld in its absolute discretion).
(c) The Service Provider will not, as a result of any subcontracting arrangement, be relieved from the performance
of any obligation under the Contract and will be liable for all
acts and omissions of a sub-contractor as though they were
the actions of the Service Provider itself.
(d) If Mastercare consents to any sub-contract, the Service
Provider will send, if requested, copies of each assignment,
transfer or sub- contract to Mastercare immediately after
they are issued.
(e) If, without due cause, the Service Provider fails to pay any
sub- contractor then, if that failure to pay has or may have a
material impact on Mastercare, Mastercare may pay that
sub-contractor directly and deduct such amounts from
payment due to the Service Provider.
21. Conflict
If any of these Conditions are inconsistent with any terms and
conditions set out in the Order, these Conditions shall, to the
extent of such inconsistency, prevail. If there is any
inconsistency between any attachments and schedules to
these Conditions, the decision of Mastercare as to how the
conflict is resolved shall be final and binding.
22. Governing Law
The Contract is governed by the Laws of the State of New
South Wales and the parties submit to the non-exclusive
jurisdiction of the courts of that State.
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