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Terms & Conditions - Long Term Plant Hire 1

1. Definitions and Interpretation
1.1 Definitions
Unless the context indicates otherwise, the following words used within these T’s & C’s will have the following meanings:
Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this relationship or which is subsequently developed by that Party independently of and for purposes unconnected with this relationship.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Confidential Information includes any information marked as confidential and any information received or developed by Tiny Gardener during the term of this arrangement, which is not publicly available and relates to processes, equipment and techniques used by The Recipient in the course of the The Recipient's business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consumer Guarantee means a guarantee applicable to the supply of goods or services pursuant to division 1 part 3-2 of the Australian Consumer Law.
Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations to The Recipient.
Deliverable means the goods or services to be supplied by the Supplier as detailed in its proposal.
Facilities means working space, computer equipment, access to the internet and The Recipient’s computer network, telecommunications system etc. It includes access to such resources but also use of them to the extent required by the Supplier in order to perform the Services.
Fee(s) means the fees set out in the proposal.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means Tiny Gardener and The Recipient, and Party means either one of them.
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001(Cth).
Services means the services to be provided by the Supplier as detailed in its proposal.
Specification means the specific Services to be provided by Tiny Gardener as detailed in its proposal.
Supplier’s Personnel means any person or persons that the Supplier designates to perform the Services on the Supplier’s behalf.
The Recipient means the business receiving the goods or service – in this case the hire and maintenance of pots and plants for a minimum term of 1 year
Termination Date means the earlier of:
a. the date of termination of this relationship by The Recipient or Tiny Gardener as allowed under these T’s & C’s; and
b. the expiry of the initial 1 year term or 1 year extension terms
1.2  Interpretation
Unless the context otherwise requires, in these T’s & C’s:
a. words importing any gender include every gender;
b. words importing the singular number include the plural number and vice versa;
c. words importing persons include firms, companies and corporations and vice versa;
d. references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in these T’s & C’s;
e. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
f. the headings to the clauses of these T’s & C’s are not to affect the interpretation;
g. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
h. the word "including" (and related forms including "includes") means "including without limitation".
2    Services
a. Tiny Gardener will provide the Services specified in its proposal to The Recipient in consideration for The Recipient paying the Fee to Tiny Gardener, subject to the provisions of there T’s & C’s.
b. The services will be delivered at the location(s) specified in the proposal for an initial 1 year term
c. Extension options as specified in the proposal to be agreed by both parties a minimum of 30 days prior to the expiry of the initial or extended term
d. Tiny Gardener will use reasonable endeavours to complete the Services including the provision of data, materials or reports by the dates specified in the Specification or any other dates agreed by the Parties.
e. The Services will be performed by the employees or agents that Tiny Gardener may choose as most appropriate to carry out the Services as agreed, from time to time by the Parties.
f. The Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Services, and the Fee(s) are as set out in the proposal.
3    Location
Tiny Gardener will provide the Services in places and locations as set out in the proposal
4    Fee(s)
4.1 Payment of Fees
a. In consideration of the provision of the Services specified in the proposal, The Recipient will pay Tiny Gardener the Fee.
b. Where Tiny Gardener’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis, except where this is specified in the proposal
c. The Recipient acknowledges that the Fees are exclusive of any GST that may be charged by Tiny Gardener to The Recipient, and therefore, Tiny Gardener will be entitled to add on GST.
d. A CPI increase will be applied annually at the anniversary date
4.2 Invoicing
a. Tiny Gardener will provide The Recipient with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause 4.
b. Payment will be made by The Recipient to Tiny Gardener within 7 days after receiving Tiny Gardener’s invoice.
c. When making a payment, The Recipient must quote relevant reference numbers and the invoice number.
d. The invoice referred to in clause 4.2(b) must include details of the service and an ABN in order for payment to be approved and forwarded:
4.5 Failure to pay
If The Recipient does not make a payment by the date stated in an invoice, Tiny Gardener is entitled to do any or all of the following:
a. charge interest on the outstanding amount at the rate of 5% per year above the base lending rate of CBA, accruing daily;
b. require The Recipient to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
c. not perform any further Services (or any part of the Services).
4.6 Disputed invoices
If The Recipient disputes the whole or any portion of the amount claimed in an invoice submitted by Tiny Gardener, The Recipient must:
a. pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment; and
b. notify Tiny Gardener in writing (within 5 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.
5    Tiny Gardener's Personnel
a. If The Recipient:
i. makes a notice in writing to Tiny Gardener; and
ii. has reasonable grounds which have been disclosed and discussed with Tiny Gardener,
The Recipient may require Tiny Gardener to cease to permit a particular person or persons employed by Tiny Gardener or acting as agent for Tiny Gardener to carry out the Services.
b. If The Recipient makes the requirement referred to in clause 5(a), Tiny Gardener must, as soon as it is practicable:
i. cease to provide the service of the particular person or persons in respect of The Recipient’s business; and
ii. provide the services of an alternative person or persons as may be reasonably acceptable to The Recipient.
7. No partnership or employment relationship
Nothing in this arrangement constitutes the relationship of employer and employee between The Recipient and Tiny Gardener or between The Recipient and Tiny Gardener’s Personnel.
It is the express intention of Tiny Gardener that any such relationships are denied.
8. Use of subcontractors
a. Tiny Gardener is permitted to use other persons to provide some or all of the Services.
b. Tiny Gardener is responsible for the work of any of Tiny Gardener’s subcontractors.
c. Subject to 8(d), any work undertaken by any of Tiny Gardener’s subcontractors will be undertaken to the same standard as detailed in the proposal.
d. To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards offered to The Recipient (including as to timing or quality),any Services provided by the relevant subcontractor will as per the proposal accepted by The Recipient.
10. Confidentiality
A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
11. Warranties, liability and indemnities
11.1        Warranties
a. Tiny Gardener warrants that it will use reasonable care and skill in performing the Services.
b. If Tiny Gardener performs the Services (or any part of the Services) negligently or materially in breach of the proposal, then,if requested by The Recipient, Tiny Gardener will re-perform the relevant part of the Services, subject to clauses 11.6(a) and 11.6(b) below.
c. The Recipient’s request referred to in clause 11.1(b) must be made within 7 days of the date Tiny Gardener completed performing the Services.
11.2        Insurances
Tiny Gardener must take out the following insurance:
a. public liability insurance of $5m
11.3        Employees and subcontractors
a. Tiny Gardener covenants that Tiny Gardener is solely responsible for payment to Tiny Gardener’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as Tiny Gardener’s employees or agents.
b. Tiny Gardener must otherwise comply with legislation applicable to Tiny Gardener’s employees and agents.
11.4        Compliance with all laws
Throughout the service term Tiny Gardener must comply at Tiny Gardener’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to Tiny Gardener or to the Services. The Tiny Gardener must indemnify The Recipient from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.
11.5        No warranties in relation to completion
Tiny Gardener provides no warranty that any result or objective beyond the provision of plants and pots and maintenance tasks as per proposal can or will be achieved or attained at all or by a given completion date or any other date.
11.6        Limitation on liability
a. Except in the case of death or personal injury caused by Tiny Gardener’s negligence, the liability of Tiny Gardener under or in connection with this service whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by The Recipient to Tiny Gardener. The provisions of clause 11.6(a) will not apply to clause 11.4.
b. Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clause 11.4. For the purposes of this subclause, “consequential loss or damage” means any Loss that does not arise naturally and according to the usual course of things as a result of a breach of these terms or other event giving rise to such Loss, whether or not such Loss may reasonably be supposed to have been in the contemplation of the Parties at the time they entered this arrangement.
c. Tiny Gardener's liability for failure to comply with a Consumer Guarantee is limited to:
i. in the case of goods supplied to The Recipient, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to The Recipient of the replacement or supply), or
ii. the repair of the goods (or the payment of the cost to the The Recipient of the repair); and in the case of services supplied to The Recipient, the supply of the services again or the payment of the cost to the The Recipient of having the services supplied again.
11.7        No reliance
Each of the Parties acknowledges that, in entering into this service arrangement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in the proposal. Any conditions, warranties or other terms implied by statute or common law are excluded from this service arrangement to the fullest extent permitted by law.
11.8        Survival of obligations
The obligations accepted by Tiny Gardener and The Recipient under this clause11 survive termination or expiry of this relationship.
12  Termination
Either Party may terminate this arrangement immediately upon the happening of any of the following events:
a. Sustained failure to deliver the service or pay the fee, such that would constitute a material breach;
b. if an order is made for the other Party to be wound up;
c. if an administrator, receiver or receiver/manager or a liquidator is appointed
d. if the other Party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
e. Upon termination any fees, expenses or reimbursements payable in respect of any period prior to the Termination Date must be paid within 7 days after the Termination Date.
13. General
13.1        Force Majeure
a. Neither Party has any liability under or may be deemed to be in breach of these T’s & C’s for any delays or failures in performance which result from a Force Majeure Event.
b. The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
c. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this relationship by written notice to the other Party.
13.2        Amendments
These T’s & C’s may only be amended in writing signed by duly authorised representatives of the Parties.
13.3        Assignment
a. Subject to clause (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations without the prior written agreement of the other Party.
b. A Party may assign and transfer all its rights and obligations to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor.
13.4        Entire Understanding
a. These T’s & C’s and the approved proposal constitute the whole understanding between the Parties.
b. The Parties confirm that they have not entered into this arrangement on the basis of any representation that is not expressly incorporated into these T’s & C’s or the proposal
13.5        Waiver
No failure or delay by Tiny Gardener in exercising any right, power or privilege will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
13.6        Agency, partnership etc
a. The provision of service defined in the proposal and delivered in accordance with these T’s & C’s will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the relationship expressly provided for in the proposal.
b. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
13.7        REMOVED
13.8        Severance
If any of these Terms & Conditions are prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be rendered ineffective as far as possible without modifying the remaining provisions, and will not in any way affect any other circumstances.
13.9        REMOVED
13.10      Notices
A notice or other communication connected with this service has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice maybe sent by pre-paid post to the address of the addressee as provided, or sent by email to the addressee (preferred)
13.11      Work, health and safety
Tiny Gardener must comply with all relevant work, health, safety and welfare standards and regulations determined by The Recipient or as prescribed by legislation.
13.12      Law and jurisdiction
These T’s & C’s will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.