State Medical Assistance Pty Ltd Services Terms and Conditions

1.      DEFINITIONS AND INTERPRETATION

1.1   Definitions

In these terms and conditions unless the context or subject matter or circumstances indicate otherwise:

Approval means any permit, licence, consent, certificate or other approval obtained or required in relation to anything required or permitted to be done by SMA under these terms and conditions;

Australian Standards means any Australian Standard (as amended or replaced) issued by Standards Australia applying directly or indirectly to the Services;

Business Day means a day on which trading banks are open for business in Sydney, New South Wales, excluding a Saturday, Sunday or public holiday;

Claim means any adjustment to the Pricing and any claim, action, suit, cause of action, cost, expense, demand, liability, whether by way of indemnity, under contract, in equity, under statute, in tort or otherwise and any other liability of any nature;

Client means the client named in the Invoice;

Client Contact is the person named in the Invoice;

Commencement Date means the date specified on the Invoice;

Confidential Information means and includes all confidential, non-public or proprietary information (including but not limited to, Intellectual Property (IP) Rights, Services and documentation) disclosed or communicated by one Party (the “Discloser”) to the other Party (the “Recipient”) or its employees or contractors (whether verbally, in writing or any other form), learnt or accessed by the Recipient, its employees and contractors from the Discloser or generated by the Recipient, its employees or contractors in the course of using, providing or receiving Services under these terms and conditions;

Confidential Information only includes information that is by its nature confidential, and is:

(a)   identified as confidential; and/or

(b)   that the Recipient knows or should reasonably know is confidential; and

(c)   excludes information that is or becomes generally available in the public domain other than through a breach of any obligation of confidence owed to the Discloser;

Consequential Loss means loss of use, data, production, profit, revenue, business, contract or anticipated saving, damage to goodwill, reputation, loss of custom or contract, financing costs or increase in operating costs or any special, indirect or consequential loss or damage;

Contract Particulars means the following information which is contained in the Invoice:

(a)     the Services;
(b)     Client Contact;
(c)     SMA Contact; and
(d)     Contractual Services Sum.

Contractual Services Sum means the amount (in Australian dollars) set out on the Invoice;

Event means the activity or occasion for which SMA will provide the Services to the Client;

Force Majeure means any act, event or cause (other than a lack of funds), which is beyond the reasonable control of the affected party including:

(a)     an act of God, strike, lockout, war (declared or undeclared), blockade, act of public enemy, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint, riot, civil commotion, expropriation, prohibition, intervention or embargo, industrial conditions not limited to SMA, and any other occurrence of the kind listed above, which is not reasonably within the control of the affected party; and

(b)     action or inaction of any government or other competent authority (including any Court of competent jurisdiction), such as expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, decree or other legally enforceable order;

Insolvent Event means any one of the following circumstances where either party:

(a)     is (or states that it is) insolvent under administration or insolvent (each defined under the Corporations Act 2001 (Cth);

(b)     is in liquidation, provisional liquidation, under administration or wound up or has had a controller appointed to its property;

(c)     is subject to any arrangement, assignment, moratorium or composition, protected from creditors under statute or dissolved;

(d)     has an application or order has been made, resolution passed, proposal put forward, or any other action is taken which is preparatory to or could result in any of (a), (b) or (c) above;

(e)     is taken to have failed to comply with a statutory demand; or has not taken steps to set aside the statutory demand;

(f)       is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth); or

(g)     is otherwise unable to pay its debts when they fall due;

Intellectual Property (IP) Rights means inventions, literary and artistic works, symbols, names and images used in commerce by SMA or the Client, including but not limited to business processes and procedures, methodologies, corporate culture and human resources management practices, copyrights, patents, trademarks and designs;

Invoice means a tax invoice issued by SMA setting out the Contract Particulars and naming the Client;

Legal Requirements means any Australian statute, ordinance, regulation, or by-law, and includes any licenses, permits and consents necessary for either SMA in connection with the Services or the Client in connection with the Event;

Notice means a notice to be given under these terms and conditions in accordance with clause 16;

these terms and conditions;

Pricing and/or Price means the Contractual Services Sum;

Services means the services provided by SMA as described in the Invoice;

Site means the geographical location at which SMA will provide the Services to the Client;

SMA Contact is the person set out on the Invoice;

Variation means:

(a)     the inclusion of additional services as Services to be supplied by SMA;

(b)     a change in the character or quality of the Services to be supplied; or

(c)     an increase or decrease in the quantity of Services to be supplied; or

(d)     a change in the cost of the Services to be supplied.

1.2   Interpretation

In these terms and conditions, and unless the context requires otherwise:

(a)     headings are for convenience only and do not affect the interpretation of these terms and conditions;

(b)     “includes” means includes without limitation;

(c)     a reference to a gender includes any gender;

(d)     a reference to “$” is to be construed as a reference to Australian currency;

(e)     a reference to a party to these terms and conditions includes that party’s successors and permitted assigns;

(f)       a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it;

(g)     no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.

1.3   Business Day

Except for the provision of the Services, where the day on or by which something must be done is not a Business Day, that thing must be done on or by the next Business Day.

2.      TERM

These terms and conditions take effect (comes into force) on and from the Commencement Date.

3.      GENERAL OBLIGATIONS

3.1   Supply of Services

(a)     SMA must supply the Services in accordance with these terms and conditions and any reasonable directions given by the Client.

(b)     SMA will not be bound by any terms or conditions expressed in orders or acceptances generated by the Client except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by SMA. For the avoidance of doubt, even where the Client attaches or refers to other terms and conditions in any purchase orders or other requests for quotations or supply of Services, received after these terms and conditions have been entered into (‘additional terms’), such additional terms are expressly excluded from these terms and conditions and any agreement between SMA and the Client and will be of no force or effect against SMA unless it expressly agrees otherwise (by notice in writing, signed by a director of SMA).

(c)      SMA may decline to accept any order without providing a reason in its absolute discretion.

3.2   Payment of Price

Subject to SMA complying with these terms and conditions, the Client will pay to SMA the Contractual Services Sum in accordance with these terms and conditions.

3.3   Deposit

Any deposit or pre-payment made by the Client to SMA in respect of an Event is non-refundable unless the Client provides SMA with no less than 30 days’ notice that the Client no longer requires the Services of SMA at the aforementioned Event.

3.4   Legal Requirements, industry practice, and Approvals

In the supply of Services under these terms and conditions, SMA must:

(a)     comply with all applicable Legal Requirements;

(b)     conform with all current applicable codes and standards (including all relevant Australian Standards);

(c)     comply with current industry practice in the supply of Services the same as or similar to the services provided by the Ambulance Service of New South Wales, save for activities prohibited by the Health Services Act 1997 (NSW); and

(d)     obtain and keep in full force and effect for the Term all Approvals necessary for the lawful supply of the Services.

3.5   Exclusivity of Services

The Client acknowledges that for the term of the Agreement, the Client may engage the services of the Ambulance Service and SMA will not be the exclusive provider of the Services to the Client.

4.      FACILITIES, SUPPLIES, SECURITY AND ON SITE OBLIGATIONS

4.1   Facilities

(a)     The Client shall give to SMA access from time to time to as much of the Client’s facilities as is necessary for SMA to properly perform its obligations under these terms and conditions.

(b)     Wherever practicable and safe to do so, SMA shall comply with all procedures, regulations and directions of the Client.

4.2   Supplies and equipment

(a)     SMA is responsible for providing, at its own cost, all vehicles, operating equipment and medical supplies, instruments and equipment necessary to complete the Services and its obligations under these terms and conditions.

(b)     All items referred to in paragraph (a) must comply with any current applicable codes and regulations and be maintained in satisfactory working condition.

4.3   Security

The Client must do all things reasonable to ensure that any SMA personnel accessing the Site for the purposes of performing SMA’s obligations under this Agreement are at all times safe whilst on or about the Site.

4.4   Event Cancellation and/or Re-schedule

If an Event is cancelled and/or re-scheduled due to a non-Force Majeure event, the Client must provide SMA with written notice at the earliest possible opportunity but not less than ten (10) Business Days prior to the originally scheduled Commencement Date of the Event. If an Event is cancelled and/or re-scheduled due to a non-Force Majeure event, SMA will not be eligible to invoice the Client for the cancellation and/or re-scheduling of the Event where written notice of the same is given to SMA not less than ten (10) Business Days prior to the Event. If the Client provides SMA with less than ten (10) Business Days’ notice (including no notice) under this clause, SMA reserves the right to invoice the Client for the Contractual Services Sum and the Client will be liable to pay the Contractual Services Sum to SMA. SMA shall use commercially reasonable efforts to minimise expenses with respect to the Event. If an Event is cancelled and/or re-scheduled due to a Force Majeure event, SMA may not invoice the client for the cancelled Event.

4.5   Discretion of SMA

(a)     SMA in its absolute discretion has the power to remove its personnel from the Site if, in the opinion of a paramedic on site and authorised by the Operations Manager or a Director of SMA, the personnel have been subject to abuse or harassment and/or any other conduct or environmental condition which poses any serious risk or threat to the safety and well-being of such personnel.

(b)     In the event that the discretion in 4.5(a) be exercised, SMA has no further obligation to the Client in respect of the Event from the time this discretion is exercised.

5.     VARIATIONS

5.1     If the Client requests or SMA deems there to be a Variation, then SMA may (but is not obliged to) notify the Client of the Variation, the price variation, associated delays and any other information SMA deems relevant.

5.2     SMA is not obliged to commence any supply associated with any Variation identified in accordance with clause 5.1 unless and until the Client acknowledges and accepts the Variation and all other details associated with the Variation as notified by SMA.

6.      WARRANTIES

6.1   Warranty as to Services

(a)     SMA warrants that it either owns the IP Rights and/or has all the appropriate licenses, registrations, permits, qualifications and approvals necessary to provide the Services.

(b)     SMA represents that the Services will be carried out:

(i)      with due care and skill and a standard of diligence that would reasonably be expected from a prudent, expert and experienced provider of those or similar Services including those currently supplied by the Ambulance Service of New South Wales;

(ii)     the SMA paramedics providing the Services are to be qualified to Diploma in Paramedical Science

(iii)   using appropriately fitted out and approved vehicles that are compliant with relevant Australian Standards;

(iv)    with vehicles containing medical equipment and medications & consumables to cover all reasonably foreseeable medical emergencies;

(v)     in accordance with the Client’s directions and to the reasonable satisfaction of the Client;

(vi)    so that they are fit for the purposes for which they are intended (or any purpose which may be reasonably inferred from the Agreement);

in compliance with

(vii)  these terms and conditions; and

(viii) all Legal Requirements.

5.2   Client Warranties

(a)     The Client warrants and acknowledges that the Client has the power and authority to enter into a binding agreement with SMA.

(b)     The Client warrants that it has complied with all necessary Legal Requirements in order to undertake the Event at the Site.

7.      PRICE AND PAYMENT

7.1   Invoices

SMA will invoice the Client for the Services.

7.2   Time for Payment

The Client will pay the Contractual Services Sum to SMA within fourteen (14) days of the date of receipt of the invoice.

7.3   Interest and Costs on Late Payments

If the Client does not pay the Contractual Services Sum within the timeframe set out in clause 6.2 above, then the Client must pay:

(a)     interest on the sum at the rate of 10% per annum, calculated on a daily basis; and

(b)     costs (including legal costs) associated with the recovery of the Contractual Services Sum.

7.4   Method of payment

(a)     SMA must notify the appropriate banking details to the Client as soon as practicable.

(b)     Payment under these terms and conditions will be made by the Client to SMA by electronic funds transfer in accordance with the details provided by SMA.

6.5   No Right to set off

The Client has no right or entitlement to deduct from any amount due to SMA (including in respect of a payment claim) any sum which the Client asserts is or may become payable by SMA to the Client, whether or not:

(a)     the Client’s right to payment arises by way of damages (whether liquidated or unliquidated), debt, restitution or otherwise; or

(b)     the factual basis giving rise to the Client’s right to payment arises out of these terms and conditions, any other contract, or is independent of any contract.

8.      GST

8.1   Exclusive of GST

Unless otherwise expressly stated, the Contractual Services Sum, Prices or other sums payable or consideration to be provided under or in accordance with these terms and conditions are exclusive of GST.

8.2   Payment of GST

If a party makes a taxable supply under or in connection with these terms and conditions, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.

8.3   Tax Invoice

The supplier must, as a precondition to the payment of GST, give the other party a tax invoice by the end of the month in which the supply is made.

8.4   Adjustments

If an adjustment event arises in connection with a supply made under these terms and conditions, the supplier must give the other party an adjustment note in accordance with the GST law.

8.5   Reimbursements

If these terms and conditions require one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount on input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.

8.6   Defined terms

In this clause:

(a)     words and expressions which have a defined meaning in the GST law have the same meaning as in the GST law;

(b)     “GST law” has the meaning given to that term in the A New Tax System (Goods and Services Tax Act 1999 or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.

9.      SUBCONTRACTING

9.1   Subcontracting

SMA reserves its rights to subcontract the whole or part of its obligations under these terms and conditions to a third party provided it receives the prior written consent of the Client, such consent not to be unreasonably withheld.

10.      INSURANCE

10.1   Insurance

SMA must throughout the Term, obtain and maintain the following Insurances:

(a)     Public liability insurance written on an occurrence basis with a limit of indemnity of not less than $20,000,000 for each and every occurrence;

(b)     Motor vehicle insurance, covering all mechanically propelled vehicles that are registered, or capable of being registered, for road use and are at any time used in connection with this contract including, as a minimum insurance that is compulsory under applicable Laws governing the use of motor vehicles and liability for personal injury or death.

(c)     Professional indemnity insurance with a sum insured of not less than $20,000,000 per occurrence; and

(d)     Workers compensation insurance as required by law in the State or territory the services are being provided.

11.      SMA SERVICE RECOMMENDATION AND REDUCED SERVICE

11.1   SMA Recommendation

SMA shall make a recommendation to the Client as to the level and/or extent of Service required for each Event, with such recommendation including but not limited to, the number of paramedics and/or number of first-aid qualified personnel, and/or number of vehicles equipped to perform its obligations under these terms and conditions (the “Recommendation”).

11.2   Reduced Service

If:

(a)   the Client does not adopt the Recommendation but chooses Service of a lesser level and/or extent (“Reduced Service”), and

(b)   if SMA provides the Reduced Service, and

(c)   if any loss and/or damage arises, including but not limited to, any cause of action in negligence, due to the Reduced Service,

then SMA’s liability is reduced proportionately to the extent that such loss and/or damage has been caused by the Client’s decision to choose the Reduced Service.

12.      LIABILITY AND INDEMNITIES

12.1   Indemnity: SMA

SMA will be liable for, and will indemnify and keep the Client (its officers, subcontractors and suppliers, agents and employees) indemnified from and against any losses whatsoever, settlements, claims, actions, suits, proceedings, judgments, awards, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) (collectively “Damages”) arising directly or indirectly from:

(a)     any breach by SMA of any term of these terms and conditions;

(b)     any negligent act or omission by SMA or its employees or subcontractors in connection with the performance of SMA’s obligations under these terms and conditions; or

(c)     any penalty imposed for breach of any Legal Requirement (to the extent recoverable under SMA’s insurance) in connection with the performance of SMA’s obligations under these terms and conditions;

reduced to the extent that such Damage is caused by the negligent act or omission of the Client (its officers, subcontractors and suppliers, agents and employees).

12.2   Indemnity: The Client

The Client will be liable for, and will indemnify and keep SMA (its officers, subcontractors and suppliers, agents and employees) indemnified from and against any losses whatsoever, settlements, claims, actions, suits, proceedings, judgments, awards, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) (collectively “Damages”) arising directly or indirectly from:

(a)     any claims that any component of the Services provided hereunder by SMA infringe any copyright, trademark, service mark, trade name, patent right, trade secret, or any other intellectual property or proprietary right;

(b)     any breach by the Client of any term of these terms and conditions;

(c)     any negligent act or omission by the Client or its employees or subcontractors in connection with the performance of the Client’s obligations under these terms and conditions;

(d)     any breach of any warranty or representation of the Client hereunder; or

(e)     any penalty imposed for breach of any Legal Requirement in connection with the performance of the Client’s obligations under these terms and conditions;

reduced to the extent that such Damage is caused by the negligent act or omission of SMA (its officers, subcontractors and suppliers, agents and employees).

11.2.1 The Client will indemnify and keep indemnified SMA against all Claims, losses, actions, damages, costs and expenses whether arising from personal injury or death or damage to property caused to any person including but not by way of limitation attendees and/or participants at the Event and/or Site, employees and other servants or agents of the Client to the extent caused directly or indirectly by any negligent act or omission of the Client or their sub-contractors or servants in breach of these terms and conditions reduced to the extent that such Claims, losses, actions, damages, costs and expenses are caused by the negligent act or omission of SMA (its officers, subcontractors and suppliers, agents and employees).

The provisions of this clause shall survive termination of these terms and conditions.

12.3   Limitation of Liability

Notwithstanding anything to the contrary herein contained but subject to the provisions of any Legal Requirements, SMA’s liability and the Client’s liability in respect of any Claim arising in any way out of the Agreement or its performance or from any failure to perform the Agreement, whether that liability arises under contract, tort (including negligence), breach of statutory duty or otherwise, is limited to SMA’s public liability insurance policy limits outlined in clause 9.1 and the Client’s public liability insurance policy limits.

12.4   Consequential Loss

Neither Party will be liable to the other Party for any Consequential Loss arising out of or in connection with these terms and conditions.

12.5   Continuing obligation

Each indemnity in these terms and conditions is a continuing obligation separate and independent from the parties’ other obligations and survives termination of these terms and conditions.

12.6   Enforcing a right of indemnity

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by these terms and conditions.

13.      CONFIDENTIALITY

13.1   No disclosure

Subject to clause 12.2, each Party must not, and must ensure that its employees do not, without the prior written approval of the other party, at any time, including after the termination or expiry of these terms and conditions:

(a)     disclose or give to any person any Confidential Information of the Party;

(b)     use or reproduce, or permit or allow any other person to use or reproduce the Confidential Information of the other Party; or

(c)     information about the terms of payment or performance in respect of any obligation under these terms and conditions at any particular time.

13.2   Permitted Disclosure

Clause 12.1 does not apply to the extent that the Confidential Information is:

(a)     disclosed to a Party’s officers, employees, legal and accounting advisers and auditors;

(b)     disclosed with the prior written consent of the other Party;

(c)     lawfully in the public domain at the time that the Confidential Information was disclosed or given; or

(d)     required to be disclosed or given to comply with any applicable law, the rules of any securities or stock exchange or an order of a court or tribunal and the other Party is given prior notice of the disclosure.

Where a Party discloses any Confidential Information pursuant to this clause 12.2, it:

(a)     must ensure that the party to whom the Confidential Information is provided or disclosed to (“Third Party”) complies with the terms of this clause 12; and

(b)     will be responsible and liable for any breach of the terms of this clause 12 by such Third Party as if the Party committed the breach.

Each Party will promptly notify the other Party if the Party learns, or has reason to believe, that there has been unauthorised access to, disclosure (whether intentional or accidental) or use of, or any security breach relating to or affecting Confidential Information in the possession of the Party, its subcontractors or agents, or that any person who has had access to Confidential Information in the possession of the Party or its subcontractors or agents has violated or intends to violate the terms of these terms and conditions with respect to these confidentiality obligations.

13.3   Return of documents

Within ten (10) Business Days of termination of these terms and conditions, each party must return to the other all documents or records, including all Confidential Information supplied to that party in respect of the supply of the Services or any other aspect of these terms and conditions.

14.      FORCE MAJEURE

14.1   Notice and effect

If an affected party is wholly or partly unable to carry out any obligation under these terms and conditions because of Force Majeure, then provided that the affected party:

(a)     gives the non-affected party prompt Notice of that Force Majeure including reasonably full particulars of the event relied on and so far as known the probable extent to which it will be unable to perform or be delayed in performing that obligation; and

(b)     uses all reasonable diligence to remove or remedy that Force Majeure as quickly as possible,

that obligation is suspended to the extent that it is affected by the continuation of the Force Majeure.

14.2   Non-affected party may terminate

Either party may terminate these terms and conditions immediately by giving Notice to the other party if the suspension of the affected party’s obligation continues under clause 13.1 for more than one (1) month.

15.      TERMINATION

15.1   Termination for breach

(a)     The Client may terminate these terms and conditions by giving Notice to SMA if SMA commits a breach of these terms and conditions which is:

(i)      capable of rectification but which is not rectified within fourteen (14) days of receipt of a Notice from the Client or such longer period as the Client may allow in their absolute discretion; or

(ii)     not capable of rectification; and

termination under this clause 14.1(a) will be effective immediately and will not affect any other rights available to the Client.

(b)     SMA may terminate these terms and conditions by giving Notice to the Client if the Client commits a breach of these terms and conditions which is:

(i)      capable of rectification but which is not rectified within fourteen (14) days of receipt of a Notice from SMA or such longer period as SMA may allow in its absolute discretion; or

(ii)     not capable of rectification; and

termination under this clause 14.1(b) will be effective immediately and will not affect any other rights available to SMA.

15.2   Termination for Insolvent Event

Either party may terminate these terms and conditions immediately by giving Notice to the other party (the “Defaulting Party”) if the Defaulting Party commits an Insolvent Event.

15.3   Compensation on termination

Where these terms and conditions is terminated by either party under this clause 14, the Client must pay SMA the amount due for the Services that have been completed by SMA in accordance with these terms and conditions prior to the date of termination. This clause does not affect any rights of either party in relation to any matters in dispute or a party’s entitlement to terminate or any other rights arising therefrom.

16.      DISPUTE RESOLUTION

16.1   Notice of dispute

If a difference or dispute between the Parties arises in connection with the subject matter of these terms and conditions then either Party shall give the other party a Notice of dispute adequately identifying and providing details of the dispute.

16.2   Continue to perform

Notwithstanding the existence of a dispute the parties shall, if reasonably practicable to do so, continue to perform these terms and conditions.

16.3   Conference

Within five (5) days after receiving a Notice of dispute the parties shall confer at least once to attempt to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged.

16.4   Mediation

In the event that the Parties are unable to resolve the dispute or reach agreement on a method to do so within twenty eight (28) days (or such longer period as agreed by the Parties) after the Notice of dispute is served, the dispute shall be and is hereby submitted to mediation in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia (NSW Chapter) Rules. The appointing and administering body shall be The Institute of Arbitrators & Mediators Australia.

16.5   Parties not to commence legal action

Except to enforce this clause or to seek an urgent interim determination, a party must not commence or maintain an action by way of legal proceedings relating to the dispute until it has been properly dealt with (including using all attempts to resolve the dispute) pursuant to clause 15.

16.6   Costs of Dispute Resolution

All costs incurred involved in dispute resolution are to be shared equally between the Parties.

17.      NOTICES

17.1   How notices may be given

A Notice under these terms and conditions:

(a)     must be in writing;

(b)     must be addressed to the Client Contact or SMA Contact (as applicable);

(c)     may be signed for the party giving it by the party’s authorised officer, attorney or solicitor; and

(d)     may be:

(i)      delivered personally to the Client Contact or the SMA Contact (as applicable), or left at or sent by prepaid post to that person’s address; or

(ii)     faxed to the Client Contact or the SMA Contact (as applicable; or

(iii)   emailed to the Client Contact or the SMA Contact (as applicable).

17.2   When Notice taken as given

A Notice is taken as given by the sender and received by the intended recipient:

(a)     if posted, three (3) Business Days after posting;

(b)     if faxed, on completion of transmission, but if delivery or receipt is on a day which is not a Business Day or is after 5.00 pm at the Place of Delivery or receipt, it is taken as given at 9.00 am on the next Business Day.

(c)     if emailed, on receipt of an automatic receipt transmission reply by the sender, or upon acknowledgement by the email recipient.

17.3   Change of address or fax number

A party may change the address, fax number or email address of its contact by Notice to the other party.

18.      GENERAL

18.1   Governing law and jurisdiction

(a)     These terms and conditions are governed by the law of the New South Wales, Australia.

(b)     Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and courts hearing appeals from them.

(c)     A party must not object to the jurisdiction of a court merely because the forum is inconvenient.

18.2   Unenforceable provision

If a provision or part of a provision in these terms and conditions is wholly or partly invalid or unenforceable, the provision or part must, to that extent, be treated as deleted from these terms and conditions. This does not affect the validity or enforceability of the remaining provisions.

18.3   Entire Agreement

These terms and conditions supersede all previous agreements in respect of its subject matter and these terms and conditions embody the entire agreement between the Parties.

18.4   Variation

Any variation or amendment of these terms and conditions must be in writing and signed by both Parties or by persons authorised to sign for them.

18.5   Waiver

A party may only waive a right under these terms and conditions by giving Notice.

18.6   Assignment

Neither party may assign the whole or part of its obligations under these terms and conditions to a third party without the prior written consent of the other party, which shall not be unreasonably withheld.