Services Agreement
between
Licensetothink Pty Ltd
(company no. 614678081)
and
Client
Contents
1. Definitions and interpretation 3
2. Engagement as Provider 7
3. Provision of the Services 7
4. Pricing and invoicing 9
5. Payment 10
6. GST 11
7. Confidentiality and privacy 11
8. Intellectual Property 12
9. Liability, Indemnity and Remedies 13
10. Termination 14
11. Non-solicitation 15
12. Electronic communications 15
13. Notices 16
14. General 16
Execution 18
Mountains Lawyers
08 9592 7326
[email protected]
U 42
60 Kent Street
Rockingham WA 6168
www.mountainslawyers.com.au
Parties
Provider: Licensetothink Pty Ltd (company no. 614678081)
Address: 29 Furness Way, Koondoola WA 6064
Email: [email protected]
(the Provider)
Client (the Client)
Recitals
A) The Provider is the developer of the Anxiety Reframe Technique (A.R.T.), a novel therapeutic modality for the management and treatment of Autism, ADHD and I/D symptoms, and practices as a therapist providing treatment utilising A.R.T.
B) The Client is seeking therapeutic services and has agreed to engage the Provider to provide the Services to the Client and the Provider has agreed to provide the Services to the Client on the terms of this agreement.
C) The Client has reviewed the terms of this agreement including with respect to the Provider’s access to and use of any data arising from or related to the Services, including recorded data from wearable devices and any video or audio recording of therapeutic sessions in accordance with this agreement.
D) The Client acknowledges and agrees that, due to the subjective and variable nature of therapeutic services individual outcomes or experiences of clients are not guaranteed and the therapist makes no warranty as to the suitability or effectiveness of the therapeutic services for any individual client.
E) This agreement is intended to be legally binding and the parties agree to give effect to the arrangements contemplated by it.
Operative provisions
1. Definitions and interpretation
Definitions
1.1 The following definitions apply in this agreement unless the context requires otherwise:
Charges means Fees and Expenses.
Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise.
Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
(a) any information that is specifically designated by any of them as confidential;
(b) any information which, by its nature, may reasonably be regarded as confidential;
(c) any Personal Information under the Privacy Act 1988 (Cth) (“Privacy Act”); and
(d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information,
whether that information is visual, oral, documentary, electronic, machine-readable tangible, intangible or any other form, relating to the Provider or any Related Entity of the Provider including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or
any other matter.
Copyright Act means the Copyright Act 1968 (Cth).
Default Rate means a rate of interest of 12.00% per annum.
Equipment means the equipment used or supplied by the Consultant or the Consultant’s representative for the purposes of providing the Services.
Event of Default means any of the following on the part of a party:
(a) committing any material or persistent breach of this agreement;
(b) repudiating or, or, in the reasonable opinion of the Provider, evincing an intention to repudiate, this agreement;
(c) misleading the Provider in any material way; and/or
(d) an Insolvency Event occurring in respect of the Client.
Expenses mean the expenses of the Provider for which the Provider is entitled to be reimbursed by the Client pursuant to clause 5.6.
Fees has the meaning given in clause 5.1.
Hourly Rate has the meaning given in clause 5.1.
In-Scope Work means work that has been expressly and specifically designated as being within the scope of the Services.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including knowhow, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability, whether arising in contract, negligence, tort, equity, statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:
(a) liabilities on account of Tax;
(b) interest and other amounts payable to third parties;
(c) legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and
(d) all amounts paid in settlement of any Claim.
Material means any data, plans, instructions, documents, descriptions, reports, advice, accounts, drawings, photographs or any other material.
Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
Non-Solicitation Period means each period of 3 months; 6 months; 9 months; 12 months; 18months.
Out-of-Scope Rate has the meaning given in clause 5.2.
Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in the Scope of Services (if any).
Relevant IP means all Intellectual Property Rights that the Provider makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Provider’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:
(a) using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
(b) in the course of, as a consequence of, or in relation to, the provision of the Services by the Provider and/or the performance (whether proper or improper) of the Provider’s duties and responsibilities to the Client under this agreement or otherwise;
(c) as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers;
or
(d) in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
Scope of Services means the agreed Services to be carried out by the Provider, the Schedule of those Services, and the Fee for those Services as agreed between the parties with respect to any individual Engagement under this agreement. If not otherwise agreed as part of a Scope of Services.
Services means the services that the Provider has agreed to provide to the Client as more specifically described in the Scope of Services.
Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.
Interpretation
1.2 The following rules of interpretation apply in this agreement unless the context requires
otherwise:
(a) headings in this agreement are for convenience only and do not affect its
interpretation or construction;
(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(d) a reference to a document (including this agreement) is a reference to that
document (including any schedules and annexures) as amended, consolidated,
supplemented, novated or replaced;
(e) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
(f) a reference to time refers to time in Perth, Western Australia and time is of the essence;
(g) all monetary amounts are in Australian currency;
(h) a reference to a “liability” includes a present, prospective, future or contingent liability;
(i) a reference to a group of persons is a reference to all of them collectively and to each of them individually;
(j) words in the singular include the plural and vice versa; and
(k) a reference to one gender includes a reference to the other genders.
2. Engagement as Provider
Engagement
2.1 The Client engages the Provider to provide the Services to the Client, and the Provider hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.
Acceptance
2.2 The Client may accept this agreement by:
(a) signing and returning this document to the Provider;
(b) otherwise communicating to the Provider, whether verbally or in writing, that the Client accept this offer; or
(c) agreeing any Scope of Services; and
(d) attending any scheduled session for the purposes of receiving the Services.
Non exclusivity
2.3 The Provider may at any time engage any third party, or use any member of the Provider's staff, to provide the Services to the Client.
2.4 The Client may at any time engage any third party to provide services similar or identical to the Services.
Commencement and duration
2.5 The Provider’s engagement with the Client will:
(a) commence when the Client accepts this agreement as set out in clause 2.2; and
(b) continue until the Services are complete, unless earlier terminated in accordance with clause 11 of this agreement.
3. Provision of the Services
Arranging Services
3.1 Each scheduled session for the provision of services, or scheduled series of session for the provision of services in accordance with an agreed Scope of Services shall be an individual engagement under this agreement (each an Engagement).
3.2 In respect of each Engagement, the parties must first agree on the Scope of Services. The Provider’s obligation to provide the Services that are the subject of each Engagement does not arise unless and until the Client has notified the Provider of the Client's acceptance of the relevant Scope of Services.
Outcome of Services
3.3 The Provider must not make any recommendations or produce reports regarding the Client that are not supported by the Provider’s formal assessment and any relevant data.
3.4 The provider makes no guarantee with respect to any report, finding, or assessment produced by the Provider, or that any such report, finding, or assessment will be accepted by any external agency or scheme, or any particular health fund.
3.5 The Provider makes no guarantee, and expressly disclaims against any warranty with respect
to any specific of the Services. Therapeutic Services, by their nature, are highly subjective and any individual outcomes, are dependant on a wide variety of factors specific to each individual Client. While some Client’s may experience a significant beneficial outcomes from the Services, other Client’s may experience limited beneficial outcomes, or potentially negative or natural outcomes.
Standards and duties
3.6 The Provider must, in providing the Services, must, in providing the Services:
(a) (Honesty and diligence) be honest and diligent and provide the Services to it to the best of its knowledge and abilities;
(b) (Standards) at all times maintain reasonable ethical, professional and technical standards; and
(c) (Discrimination and harassment) not unlawfully discriminate against, harass or otherwise physically or verbally abuse any person.
4. Client Requirements
Client conduct
4.1 Clients and any individuals attending sessions or communicating with the Provider for and on behalf of the Client must treat the Provider and any of the Provider’s staff, officers, contractors, or representatives with respect and courtesy.
4.2 Clients and any individuals attending Services or communicating with the Provider for and on behalf of the Client must participate in the Services in a manner that is collaborative, supportive, and conducive to working toward therapeutic goals as set out in the Scope of Services and any agreed objectives discussed between the Client and the Provider.
4.3 The Client must communicate openly and honestly with the Provider at all times with respect to: the Services, any concerns, any third-party treatment or therapy the Client is receiving, any prescription or non-prescription medication, drugs, or supplements the Client is taking, or any other matter that may impact the conduct of the Services, or the potential outcomes of the Services.
Client authorisations
4.4 Where a Client is unable to provide consents or instructions to the Provider, or where the Client’s Services are being managed by an agency, third party, or someone other than the Client, the Provider must be provided with full disclosure of any relevant circumstances, contacts, and requirements to facilitate the Services, and ensure all proper authorisations are received by the Provider for and on behalf to the Client.
4.5 The Client or their relevant legal guardian or authorised Power of Attorney must notify the Provider in writing appointing an individual who is responsible for all correspondence, approvals, authorisations, and payments for and on behalf of the Client with respect to the Services.
4.6 Where a person purports to act for and on behalf of a Client, the Provider may at their absolute discretion, request the relevant person to provide reasonable documentation to support their authority and the capacity in which they act for and on behalf of the Client.
5. Pricing and invoicing
Pricing
5.1 Subject to clause 3.1, in respect of each Engagement, the parties have agreed that the total price for the relevant Services as designated in the Scope of Services (the Fees) will be ; if:
(a) (Fixed Price) a Fixed Price applies – that Fixed Price as set out in the relevant Scope of Services or if no Fee is specified in the Schedule of Services, the Fee for the corresponding Services as set out in the Provider’s Schedule of Rates as amended from time to time. Fixed Price Services are payable in advance, and the Provider will invoice the Client for relevant Scope of Services all relevant Charges prior to the commencement of each Fixed Price Engagement; or
(b) (Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the Provider in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 5.3 and payable in arrears upon completion of the Services to the reasonable satisfaction of the Client, and the Provider will invoice the Client by way of a single invoice for all relevant Charges following completion of all relevant Services for that Engagement.
Out-of-Scope Work
5.2 Notwithstanding clause 5.1, the Client will pay the Provider an hourly rate set out in the Schedule of Rates (the Out-of-Scope Rate) for any Out-of-Scope Work.
Hourly Rates and Out-of-Scope Rates
5.3 Hourly Rates and Out-of-Scope Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15 minute units, with 4 units per hour – eg, the time charged for an attendance of up to 15 minutes will be 1 unit and the time charged for an attendance between 15 and 30 minutes will be 2 units.
5.4 The Provider must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate and/or Out-of-Scope Rate applies and provide the Client with a copy of such records upon reasonable notice as may be requested by the Client from time to time.
5.5 The Hourly Rate and Out-of-Scope Rate are subject to change at the Provider’s absolute discretion. The Client will be provided written notice of any proposed rate change prior not less than 30 days prior to any rate change taking effect.
Disbursements and expenses
5.6 The Client will pay all reasonable out-of-pocket expenses properly and necessarily incurred by the Provider in the course of providing the Services, provided that the Provider obtains the Client’s written consent before incurring the expenses. These may include:
(a) Third party fees where any part of the Services is carried out in connection with any services provided by a third party; and
(b) Equipment costs, where the Services include the use of any devices or equipment procured by the Provider for and on behalf of the Client for the provision of the Services.
6. Payment
Timing of payments
6.1 The Client must pay to the Provider all Charges properly invoiced pursuant to clause 5.1(a) in full at the time of confirming each Engagement, or in any event, prior to the commencement of any Engagement as set out in any Scope of Services.
6.2 Subject to clause 6.1, if any Charges are to be paid under clause 5.1(b) or otherwise in arrears, then the Client must pay to the Provider all properly invoiced Charges on or before the date that is 15 Business Days after the Client’s receipt of the relevant invoice.
Method of payment
6.3 All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash, credit or debit card (which may be subject to third party vendor fees depending on card issuer and method of payment), or by way of electronic funds transfer into the account nominated by the other party.
No set-off or deduction
6.4 Unless otherwise agreed in writing and subject to clause 6.5, all amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement.
6.5 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.
Default interest
6.6 If a party fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party
in respect of any late payment under this clause 6.6 is in addition to any other remedies that the other party may have in respect of such late payment.
6.7 If a liability of a party to another party under this agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total
amount of interest that the other party receives in respect of that liability is equal to the Default Rate.
7. GST
7.1 Where applicable, GST is payable on the Fees for the provision of Services and the Client agrees to pay an amount equivalent to the GST imposed on these Charges.
7.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 7.
8. Confidentiality and privacy
8.1 Confidential Information of the Client will be dealt with in accordance with the Providers Client Privacy Policy [ https://www.arthollybridges.com/privacy-policy) or any specific agreement between the Parties with respect to the collection and use of Confidential Information of the Client.
8.1 Subject to any specific terms as set out in any policy or agreement referred to at clause 8.1, and subject to the exceptions set out at clauses 8.3 and 8.4, Provider shall endeavour to:
(a) keep all Confidential Information confidential;
(b) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
(c) not disclose or make available any Confidential Information in whole or in part to any third party;
(d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
(e) ensure that any and all Authorised Third Party Disclosees:
(i) comply with the obligations in this agreement as if each of them was a party
to this agreement in the place of the Provider; and
(ii) do not do, or omit to do, anything which, if done or omitted to be done by
the Provider, would constitute a breach of this agreement by the Provider.
Exceptions
8.3 The Provider may reduce to writing or otherwise record any Confidential Information of the Client in the performance of the Services, and via any data measuring or gathering devices related to the Services for the purpose of:
(a) Assessing the Client’s response to the Services and identifying any patterns, outcomes, or information with respect to either the Services or the Client that may reasonably arise from assessment of the recorded information;
(b) Further development of the Services and therapeutic technics based on observation and assessment of the recorded confidential information;
(c) Training and development of staff or contractors of the Provider with respect to proper performance of therapeutic services;
(d) Inclusion (in deidentified form) in any assessment, study, research project, or trial for the purposes of further developing and assessing the Services and therapeutic techniques, as well as the nature and method of recording the Confidential Information.
(e) may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.
8.4 The Provider may disclose or make available any Confidential Information in whole or in part to any third party for the purposes of:
(a) The furtherance of any study, assessment, or review of the Services and therapeutic techniques, as well as the nature and method of recording the Confidential Information as set out in clause 8.3(d);
(b) Fulfilling any reporting requirements or in response to any reasonable enquiry by any
Scheme, programme, or agency under which the Services are arranged, funded, or approved for client;
(c) Providing any report or response to any reasonable enquiry by any referring medical practitioner or therapy provider engaged by or on behalf of the Client, and where such report or response is for the purpose of any reasonably required treatment or assessment of the Client; and
(d) Fulfilling any requirement imposed by law or court order.
9. Intellectual Property
9.1 The parties agree that all Relevant IP will be owned by, and vest in, the Provider.
Assignment
9.2 The Client hereby assigns, transfers and conveys to the Provider all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Provider on and from creation.
Client’s duty to assist the Provider
9.3 The Client must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Provider’s title to any Relevant IP, in Australia or in such other countries as the Provider may require at its discretion.
Permitted use
9.4 The Client may not use or reproduce any Relevant IP or any other Intellectual Property Rights of the Provider or any of the Provider’s customers, clients or suppliers without the Provider’s prior written approval, except in the performance of its duties under this agreement.
Moral rights
9.5 The Client consents to the doing of any acts, or making of any omissions, by the Provider or any of the Provider's employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:
(a) not naming the Client as the author of a Work; or
(b) amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Client is not named as the author of the amended or modified Work,
whether those acts or omissions occur before, on or after the date of this agreement. The Client acknowledges that its consent pursuant to this clause 9.5 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.
10. Liability, Indemnity and Remedies
Indemnity
10.1 The Client irrevocably indemnifies and covenants to hold the Provider harmless from and against all Losses suffered by the Provider (including third party claims on the Provider) which arise in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct of the Client.
Indemnities continuing
10.2 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full.
Limitation of liability
10.3 (Disclaimer of warranties) To the maximum extent permitted by law and except as otherwise set out in this agreement, the Provider and its Representatives expressly disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability and fitness for a particular purpose.
10.4 (Limitation of liability) Where the conditions, representations and warranties referred to in clause 10.3 cannot be disclaimed or excluded by law, then the aggregate liability of the Provider and its Representatives in respect of any Claim for Losses that the Client and/or any of its Representatives may bring against the Provider in respect of the Services is limited, at the Provider’s election, to one or a combination of the following remedies:
(a) re-supply of the Services;
(b) payment of the costs of re-supply of the Services by a third party; or
(c) the refund of any amounts paid (either in full or part) by the Client to the Provider under this agreement in respect of the Services.
Force majeure
10.5 To the maximum extent permitted by law, the Provider and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Provider under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Provider. The Client acknowledges and agrees that the
Provider holds the benefit of this clause 10.5 for itself and as agent and trustee for and on behalf of each of its Representatives.
Remedies for breach
10.6 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 9 (Intellectual Property), clause 10 (Liability and remedies), clause 12 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, together with recovery of costs.
11. Termination
Termination by Client
11.1 The Client may terminate this agreement at any time by giving at least 10 Business Days' notice in writing to the Provider.
Termination by Provider
11.2 The Provider may terminate this agreement or refuse to provide further Services to the Client if:
(a) The Client does not pay their invoices in a timely manner;
(b) The Client refuses to properly participate in the Services;
(c) The Provider feels that there are ethical, professional, or safety grounds that the Provider considers, in their absolute discretion, require them to cease providing the Services;
(d) There are reasons outside of the Providers control which compromise the Provider’s ability to perform the Services; or
(e) For just cause.
Effect of termination
11.3 In the event of any termination of this agreement in any circumstances and for any reason whatsoever:
(a) the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of this agreement by the Client, including Charges incurred by the Provider for the purchase of materials for those Services prior to such termination); and
(b) the Provider will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 6 will apply in respect thereof.
Accrued rights
11.4 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
Survival
11.5 The obligations of the parties under clause 9 (Intellectual Property), clause 10 (Liability and remedies), clause 12 (Non-solicitation) and this clause 11 will survive the termination of this agreement.
12. Non-solicitation
12.1 During the Provider's engagement with the Client under this agreement and for each Non-Solicitation Period thereafter, the Client must not, without the Provider's prior written consent (which the Provider may withhold or delay in its absolute discretion), directly or indirectly:
(a) (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Provider and any of the Provider's suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners;
or (b) (non-solicitation of staff) induce, encourage or solicit any of the Provider's officers, employees, contractors or agents to cease their employment, engagement or agency with the Provider.
12.2 The Client acknowledges and agrees that:
(a) the restraints in clause 12.1 constitute several separate covenants and restraints consisting of each of clauses 12.1(a) and (b) combined with each separate Non- Solicitation Period severally;
(b) each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Provider's goodwill and business;
(c) the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
(d) breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Provider's goodwill and business and would lead to substantial loss to the Provider.
12.3 The parties intend the covenants and restraints under clauses 12.1 to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 12.3, be void as unreasonable for the protection of the interests of the Provider but would not be so void if any part of the wording in this clause 12 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary
to make them effective.
13. Electronic communications
Transmission of documents
13.1 The Provider may send and receive documents electronically. The Client acknowledges that such communication and transmission is not secure and it may be copied, recorded, read or interfered with by third parties while in transit. If the Provider or the Client corresponds or transmits any document electronically, the Client releases the Provider from any claim they may have as a result of any unauthorised copying, recording, reading or interference with the document, for any delay or non-delivery of any document and for any damage caused to the Client’s system or any files.
Tax invoices
13.2 The Client consents to the Provider sending invoices electronically to the Client’s usual email address or mobile phone number as specified by the Client.
14. Notices
14.1 A Notice given to a party under this agreement must be sent to the address or email address of the relevant party as set out in the list of parties that starts on page 3 of this agreement (or such other address or email address as the relevant party may notify to the other party from time to time).
14.2 To prove service, it is sufficient to prove that:
(a) in the case of post – that the envelope containing the notice was properly addressed and posted; and
(b) in the case of email – the email was transmitted to the party’s email server or internet service provider.
15. General
Further assurances
15.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.
Third parties
15.2 This agreement is made for the benefit of the parties to it and their successors and permitted
assigns and is not intended to benefit, or be enforceable by, anyone else.
Costs
15.3 All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.
Entire agreement
15.4 This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations, obligations or other terms, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.
Severability
15.5 If a provision or the application of a provision of this agreement is invalid, prohibited, void, illegal or unenforceable in a jurisdiction:
(a) it is to be read down or severed or be ineffective in that jurisdiction to the extent of the prohibition, invalidity voidness, illegality or unenforceability; and
(b) this will not affect the validity or enforceability of that provision in another
jurisdiction, or the remaining provisions.
No waiver
15.6 Any waiver of a right under this agreement must be in writing and signed by the party granting the waiver.
15.7 No failure, delay, or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right in any subsequent matter or prejudice or restrict the rights of the party. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.
Assignment
15.8 The Provider may assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the Client.
Counterparts
15.9 This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
Electronic exchange
15.10 Delivery of an executed counterpart of this agreement by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
Governing law and jurisdiction
15.11 This agreement is governed by, and shall be construed in accordance with, the laws of Western Australia, Australia. The parties irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including noncontractual disputes or claims).
Execution
EXECUTED as an agreement.
Executed for and on behalf of Licensetothink Pty Ltd (company no. 614678081) in accordance with section 127 of the Corporations Act
