In this Service Agreement, the following words have the following meanings, unless expressly agreed otherwise:
(a) Agreement means this Service Agreement.
(b) Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
(c) Business Day means Monday - Friday excluding public holidays in Brisbane, Queensland.
(d) Business Hours means 9:00am - 5:00pm on Business Days.
(e) Confidential Information includes any information about the other party’s services, processes, systems, equipment, dealings, transactions, policies, finances, organisation, business plans, personnel, or any information marked “confidential” or which the other party informs to be confidential, but excluding information that is available to the public and information which can be proven to have been lawfully possessed before obtaining it in the course of the engagement to provide the Services.
(f) Fees means as set out in clause 4.1.
(g) Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, act of God, or other circumstances beyond the reasonable control of Catology.
(h) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
(i) Insolvency Event means: (a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency; (b) where the party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; (c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or (d) the party is unable to pay its debts as and when they fall due.
(j) Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
(k) Services means the services set out in clause 3.
In this Agreement:
(a) Headings are for convenience only and do not affect the construction of this Agreement.
(b) A provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
(c) Currency refers to Australian Dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(e) A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this Agreement.
(f) A reference to time is to time in Brisbane.
(g) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(h) The words “includes”, “including” and similar expressions are not words of limitation.
3.1. Catology will provide pet behaviour management consultation services to the Customer
3.2. As part of the initial consultation, Catology will provide:
(a) A written Behaviour Management Plan; and
(b) 30 days’ support, with unlimited email follow up if required
4.1. The Customer must pay the Fees to Catology as set out below:
• Online Consultation $495;
• Home Visit Consultation $550; or
• As otherwise agreed
4.2. The Fees are exclusive GST, which the Customer also agrees to pay to Catology, where GST is payable under the Agreement.
4.3. No refund will be payable if the Agreement is terminated within 24 hours of the service date.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1. The Customer agrees and acknowledges that this Agreement does not transfer or assign any Intellectual Property Rights to the Customer.
6.1. The Customer acknowledges that pet behaviour management may involve various risks and dangers to Catology, the Customer’s pet and other people, animals and property. The Customer acknowledges and accepts that these risks and dangers may be the result of default or negligence on the part of Catology.
6.2. The Customer is aware of the above risks and dangers, and freely accepts and fully assumes all such risks and dangers and the possibility of personal or animal injury, illness or death, property damage or losses resulting therefrom.
6.3. The Customer acknowledges that there is no guarantee of a successful outcome.
6.4 In consideration of Catology agreeing to provide the Services under this Agreement, the Customer agrees to:
(a) waive any and all claims that the Customer has or may have in the future against Catology, its agents and representatives (“Releasees”); and
(b) release the Releasees from any and all loss, damage expense, injury or death that may happen to the pet or to any property of Catology.
6.5. Catology is not liable for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
6.6. If Catology is found legally liable, the parties agree that Catology is only liable for direct loss incurred by the Customer as a direct result of one or more breaches by Catology of its obligations under this Agreement. However, Catology’s liability for all such direct loss is capped, in the aggregate, at an amount equivalent to the Fees paid by the Customer under this Agreement, and which cap is reduced to the extent the Customer or a Force Majeure Event caused or was responsible for such loss.
6.7. The parties agree that Catology’s liability, if any, is limited, at the option of Catology, to one or more of the following:
(a) the supplying of the goods or services again; or
(b) the payment of the cost of having the goods or services supplied again.
7. INDEMNITY FROM CUSTOMER
7.1. The Customer indemnifies Catology in respect of all and any loss and damage incurred by Catology or its agents and representatives as a result of any acts, omissions or behaviours of the Customer, the Customer’s pet or any animal under the control, possession or ownership of the Customer.
8.1. Each party (the first party) agrees and acknowledges that the Confidential Information of the other party will be received and held by the first party in strict confidence and will not be disclosed by the first party.
9.1. You consent to our use of your pet’s name and images (including photographs and videos), without remuneration, for the purpose of publishing, displaying or marketing on our brochures, newsletters, emails, banners, presentations, advertisements, corporate website and social media (such as Facebook).
10.1. Either party may terminate this Agreement by 48 hours’ notice to the other.
10.2. Either party may terminate this Agreement immediately by notice to the other party if the other party suffers an Insolvency Event.
10.3. Termination does not affect any accrued rights of either party.
11.1. A notice under this Agreement shall be sent by hand delivery, post or email, using the address specified at the top of the first page of this Agreement or the email address for the recipient specified in this Agreement, or by phone text message, imessage, social media, instant message delivered by electronic means.
11.2. Any notice issued by hand shall be deemed delivered upon delivery.
11.3. Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
11.4. Any notice issued via email shall be deemed to be delivered upon the email being sent, provided that if an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next Business Day.
12. DISPUTE RESOLUTION
12.1. If a dispute arises out of, or in any way in connection with, or otherwise relates to this Agreement, or the breach, termination, validity or subject matter hereof, or as to any related claim at law, in equity or pursuant to any statute, the parties agree to refer their dispute to Mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
12.2. The Mediation shall be conducted in Brisbane and shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the dispute is referred to ACDC and which terms are hereby deemed incorporated into this Deed.
12.3. The costs of the mediator shall be shared equally between the parties.
12.4. Nothing in this clause shall limit either party’s right to seek urgent interlocutory relief from any court of competent jurisdiction at any time.
13.1. Amendment: This Agreement may only be amended by a written document signed by the parties.
13.2. Assignment: The Customer may not assign, transfer, licence or novate its rights or obligations under this Agreement, or allow the sale of any of its shares or any other change to the control or beneficial ownership of itself, without the prior written consent of Catology. Any action taken by the Customer in breach of this clause shall entitle Catology to terminate this Agreement by notice to the Customer.
13.3. Severability: If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain enforceable.
13.4. Relationship: The parties are independent contractors and this Agreement does not create any relationship of partnership, joint venture, or employer and employee or otherwise.
13.5. Australian Consumer Law: The exclusions and limitations of liability set out in this Agreement shall apply to the fullest extent permissible at law, but the parties do not exclude or limit liability which may not be excluded or limited by law. Without limiting the foregoing provisions, Catology does not exclude liability under the Australian Consumer Law which is prohibited from being excluded. The parties acknowledge and agree that the limitations and exclusions of liability contained in this Agreement constitute an allocation of risks that form part of the negotiated commercial terms of this Agreement.
13.6. Counterparts: This Agreement may be executed in counterparts provided that no binding agreement shall be reached until the executed counterparts are exchanged. A counterpart of a document exchanged by email shall constitute evidence of the execution of the original.
13.7. Entire Agreement: This Agreement constitutes the entire agreement between the parties and to the extent possible by law, supersedes all prior understandings, representations, arrangements and agreements between the parties regarding its subject matter.13.8. Jurisdiction: This Agreement will be interpreted in accordance with the laws in force in Queensland. The parties irrevocably submit to the non-exclusive jurisdiction of the courts situated in Queensland.