The following general terms and conditions ("General Terms") together with the proposal signed by the Client shall constitute the agreement ("the Agreement") BETWEEN the Client and Ride On Australia (hereinafter referred to as “Contractor”):
1. Definitions
The following expressions shall have the following meanings: -
Geozone means the specific geographic boundaries where the Services will be performed by the Contractor.
Parties mean the Client and Contractor collectively; and Party means either the Client or Contractor individually.
Services mean the services to be provided by the Contractor to the Client as specifically set forth in the Agreement.
1.1 Any reference to “writing”, or cognate expressions, includes a reference to any communications effected by electronic mail or facsimile transmission.
1.2 For convenience, terms that have a defined meaning are indicated by the use of a capital letter, but the absence of a capital letter shall not alone indicate that the term is to have a meaning other than the defined meaning.
1.3 Words importing the singular include the plural and vice versa and words importing a gender include every gender.
1.4 A reference to a “Party” includes a reference to that Party’s successors and permitted assigns unless the context clearly indicates otherwise.
1.5 Headings are for convenience of reference only and shall not affect the interpretation of these terms and conditions.
1.6 A reference to a “person” shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any sovereign state or any agency thereof unless the context clearly indicates otherwise.
2. Term
2.1 The Contractor shall perform the Services in the agreed Geozone for an initial period (the “Initial Term”) in accordance with the commencement and completion date as set out in the Agreement.
2.2 At the end of the Initial Term or any renewal thereof, the Parties may, upon mutual agreement, renew the Agreement for an additional period(s) ("Additional Period(s)") by agreeing and executing a written amendment, which shall contain changes to terms and pricing, if any.
3. Termination
3.1 Subject to Article 3.3, in the event that a Party defaults in the performance or observance of any material covenants or provisions of the Agreement and such Party fails to remedy such default or breach within forty-five (45) days from the date of notice thereof from the other Party, the Agreement shall be terminated at the end of such notice period.
3.2 A Party shall be entitled to terminate the Agreement with immediate effect by written notice to the other Party if the other Party (i) makes an assignment for the benefit of creditors or a resolution is passed or a petition is presented against the other Party for liquidation, winding-up or dissolution or for the appointment of a liquidator, receiver, trustee, judicial manager or similar official of all or a substantial part of its assets or if execution or any form of action is levied or taken against any of its assets; (ii) disposes of a substantial part of its business or assets; (iii) substantially alters the nature of its business existing as at the date of the Agreement; (iv) ceases to or threatens to cease to carry on business; or (v) merges or is acquired by a company that is in competition with the Party entitled to terminate.
3.3 The Contractor shall have the right to suspend or terminate the Agreement by giving not less than seven (7) days advance written notice to the Client if the Client has failed to pay any sum due and payable to the Contractor.
3.4 The provisions of Articles 5, 7, 8, 11, 12, 13, 15 and 19 and any other provisions in the Agreement necessary to interpret the respective rights and obligations of the Parties shall survive the termination or expiry of the Agreement.
3.5 Termination of the Agreement however caused shall be without prejudice to any rights or liabilities of the Parties accruing prior to the date of termination.
3.6 Without prejudice to any other rights and remedies available to the Contractor, in the event of the suspension or termination of the Agreement, the Client shall pay to the Contractor all due or outstanding amounts for (i) the Services rendered up to the date of suspension or termination; (ii) the cost of medical supplies arranged and purchased by the Contractor as required for the performance of Services; and (iii) any costs reasonably incurred and substantiated by the Contractor arising from or in connection with the suspension or termination.
4. Compensation
4.1 In consideration of the Services, the Client shall pay the Contractor in accordance with the terms set out in the Agreement. Unless specifically stated otherwise in the Agreement, all charges, prices, fees and other payments by the Client shall be paid without any deductions or withholdings of whatsoever nature.
4.2 If the Client fails to make payment on the due date then, without prejudice to any other rights or remedy available to the Contractor, Contractor shall have the right to (i) charge the Client interest (both before and after any judgment) on the amount unpaid at a compound rate of one percent (1%) per month calculated on a daily basis until payment in full is made; and (ii) terminate or suspend the Agreement in accordance with the provisions under Article 3.3. In no event shall the Contractor be howsoever liable to Client for breach of contract due to non-performance of the Services or for any loss, damage or inconvenience of whatsoever nature suffered by the Client and/or its affiliates as the result of suspension of the Services or termination of the Agreement pursuant to Client’s default in payment.
4.3 If the Contractor’s costs change materially due to (a) significant inflation; (b) change in law, regulation or taxation regime; (c) fluctuations in exchange rate; and/or (d) any unforeseen circumstances beyond the control of Contractor, then the Contractor and the Client shall meet to ensure that the Contractor is reimbursed for such cost increases.
5. Taxes
5.1 Unless otherwise stated in the Agreement, the Client shall be liable for and shall pay all taxes, levies and customs duties, including and without limitation, sales tax, goods and services tax, excise tax or value added tax, with regard to the Services and medical supplies and to payments made to the Contractor under the Agreement as well as any withholding tax on amounts invoiced by the Contractor to the Client and other deductions or charges howsoever designated under any jurisdiction.
5.2 If subsequent to the commencement date there are any changes to the applicable tax laws, regulations or practice which increase the Contractor’s tax liability on the provision of Services, the fees payable by the Client shall be increased to maintain the Contractor's net fees at the same level which applied before the changes to the laws. The Contractor reserves the right to claim the additional fees payable by the Client on an immediate basis and retrospectively from the effective date of change.
5.3 The Client shall at all times indemnify the Contractor and shall hold the Contractor harmless from and against any loss, cost or expense whatsoever including without limitation, all fees, disbursements and penalties, arising from or in connection with any claim, action, proceeding or suit by any third party against the Contractor resulting from any breach by the Client of this Article 5.1.
6. Standard of Services
The Contractor shall perform the Services with the standard of care, skill and diligence normally provided by a professional workman in the performance of such Services.
7. Confidential Information
7.1 Each Party (“Recipient Party”) shall expressly undertake to retain in confidence all information transmitted by the other Party (“Disclosing Party”) that has been designated as proprietary and/or confidential, or by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use or disclosure of Confidential Information except under the terms herein, or unless authorized to do so by the Disclosing Party save that the Contractor may always make use of or disclose to third parties such information of the Client for the purposes of performing the Services.
7.2 The Recipient Party shall exercise due care with respect to the safekeeping of the Confidential Information, at least to the same degree of care as the Recipient Party employs with respect to its own confidential information, but no less than reasonable care.
7.3 Each Party acknowledges that the Confidential Information shall remain the property of the Disclosing Party and no right or license whatsoever, express and implied, is granted to the Recipient Party pursuant to this Agreement in respect of any Intellectual Property now or hereafter owned or controlled by the Disclosing Party. The Recipient Party shall, and shall where applicable, procure that their respective employees, affiliates and agents shall, cease using the Confidential Information of the Disclosing Party upon the termination or expiration of this Agreement.
7.4 All Confidential Information, together with any copies thereof, shall upon the expiration or termination of the Agreement or upon the request of the Disclosing Party be returned or destroyed as may be instructed by the Disclosing Party. All analysis, compilations, studies or other documents prepared by the Recipient Party constituting part of the Confidential Information shall be destroyed and confirmation of such destruction shall be notified to the Disclosing Party. Notwithstanding the foregoing, the Contractor shall be permitted to retain copies of Confidential Information for the purposes of and for so long as required by any law or by judicial or administrative process or its legitimate internal compliance issues.
8. Intellectual Property
8.1 The Contractor shall own all rights in the methodologies, processes, procedures, records (including patient records), trade and design rights (whether or not registered), copyrights, patents, trade secrets, other intellectual property rights, programs or systems (hereinafter collectively referred to as the "Intellectual Property") that will be utilised or created during the provision of the Services. To the extent deemed necessary by the Contractor for the delivery of the Services to the Client, the Client will be granted for a limited term as specified in the Agreement, a revocable, non-transferable, non-sublicensable, free-of-charge, non-exclusive right to use, for the purposes of the Services for which they will be provided, the materials or items that the Contractor will deliver to the Client in connection with Services to be provided. The Client shall, and shall procure that their respective employees, affiliates and agents shall, cease using the Intellectual Property of the Contractor upon the suspension, termination or expiration of the Agreement. For avoidance of doubt, the Contractor shall have the sole discretion as to which Intellectual Property it provides to the Client.
8.2 Intellectual Property vested in a Party prior to and during the performance of the Services shall remain the exclusive property of the entitled Party (“Entitled Party”) and shall not be appropriated or used without the prior written consent of that Party.
8.3 In the event there is any ambiguity in the ownership of any Intellectual Property by either Party, the Contractor shall have the sole right to determine the ownership of any such Intellectual Property.
9. Data Retention and Destruction
9.1 Each Party shall be entitled to retain all records of data created or received during the term of the Agreement that are relevant to their respective interests until the termination or expiry of the Agreement or until such records have satisfied all relevant legal, fiscal, accounting, administrative, contractual and archival requirements, whichever event occurs later. As soon as practicable after the end of the requisite retention period, the records shall be destroyed in an appropriate manner that protects the privacy and confidentiality of the data being destroyed and renders the data permanently illegible.
9.2 For the purposes of this Article, a record is any recorded data, regardless of physical form, medium or characteristics, that can be retrieved and includes but is not limited to, all original paper or electronic documents and e-mails, x-rays , sound and video recordings, microfilm and magnetic tape, that are created or received in connection with the Agreement.
9.3 The Parties agree that the retention periods for records that are or may be relevant to anticipated or actual claims, demands, litigation or arbitration may be extended as required by law or as necessary or desirable to protect the interests of the Parties.
10. Independent Contractor
10.1 Each Party is not the employee, partner or joint venturer of the other Party but shall operate as and have the status of independent contractor and shall not have any authority to negotiate or conclude any contract or act in court on behalf of the other or any of the other Party's affiliates or otherwise act as or be an agent of the other Party.
10.2 Drivers on the Ride on platform are independent contractors and are not employees of Ride On or its affiliate companies.
11. Non-solicitation of Contractor’s Personnel
During the term of the Agreement and for a period of one (1) year after the termination or expiration of the Agreement, the Client shall not without the prior written approval of the Contractor, directly or indirectly enter into any agreement or arrangement with and shall not actively solicit any of the Contractor’s personnel who work or have worked in the course of the Agreement ("Contractor's Personnel") or any extension or renewal thereof. Without limiting the intents and purposes of this obligation, Client further agrees that should it engage or employ the services of any labour agency, person or service provider ("Agency"), then it will instruct the Agency not to enter into arrangements to employ or provide the Contractor’s Personnel. In the event the Client does offer employment to the Contractor’s Personnel or engages an Agency who employs or provides the Contractor's Personnel, the Client shall pay to the Contractor as a fee for human resources services an amount equal to twelve (12) times any agreed monthly fee for the Contractor’s Personnel. The Client acknowledges that any breach or violation of its obligation under this Article 11 will cause the Contractor to incur or suffer substantial losses and loss of business opportunities.
12. Indemnification
12.1 Each Party shall indemnify, defend and hold the other Party, its subsidiaries and affiliates, and their respective directors, officers and employees, harmless from and against any and all claims, suits, actions, proceedings, or liabilities of any kind, including reasonable attorney’s fees and expenses, arising out of its negligent act or omission of or breach of the Agreement by its agents and employees.
12.2 The total aggregate liability of the Contractor arising out of or in connection with the Agreement (whether caused by negligence, willful default, by way of indemnity, or otherwise) shall in no event exceed the total value of the Agreement.
13. Exclusion of Liability
- Notwithstanding any other provisions herein to the contrary, the Contractor shall not in any way howsoever be liable towards the Client for any damage or liability, including out of negligence or willful default and whether or not the Contractor ought to have known that such damage would result, including but not limited to the following:
- any consequential loss, or damage, loss or injury of whatsoever nature which does not flow directly from an act or omission in question but only from a consequence or result of such act or omission;
- loss or anticipated loss of profit, loss or anticipated loss of revenue and economic loss, whether or not flowing directly or indirectly from an act or omission in question;
- business interruption, loss of use of any equipment, loss of contract or loss of business opportunity; or
- special, contingent, punitive or penal damages.
13.2 Except as set forth herein, the Contractor makes no warranties to the Client, express or implied, with respect to any of the Services or deliverables that will be provided. All warranties, conditions and other terms implied by statute or common law (including but not limited to fitness of purpose or merchantability) shall be expressly disclaimed and excluded to the fullest extent permitted by law.
13.3 Where applicable and to the extent permitted by applicable law, the Client and its employees, personnel, insured, users or members, as may be applicable, shall waive all claims against the Contractor, the Contractor’s personnel, its affiliates, representatives and agents for any loss resulting from any advice given, services provided or any acts or omissions of any third party service provider including, without limitation, providers of medical services, transportation, security personnel or legal services who are referred or arranged by the Contractor.
14. Force Majeure
14.1 Contractor shall not be liable for failure to provide the Services and/or delays caused by any unforeseeable, unavoidable and insurmountable event occurring outside the reasonable control of any Party or of its employees, agents or representatives (“Force Majeure”), which includes without limitation acts of God such as natural disasters (hurricanes, tornadoes, landslides, earthquakes, volcanic eruptions, tsunamis, floods, lightning, explosions), wars, whether declared or not, use of or release or the threat thereof of any nuclear weapon or device or chemical or biological agent, insurgencies, acts of terrorism or the threat thereof, riots, acts of government from a public or governmental authority, whether “de jure” or “de facto”, including blockades or embargoes, whether declared or not, sea or air transport and navigation perils, flight conditions, strikes, lockouts or other labour disturbances, or situations where the rendering of Services is prohibited or delayed or hampered by local laws, regulators or regulatory agencies, to the extent that these events prevent one Party to perform its contractual obligations. Contractor shall notify the Client of such Force Majeure event as soon as reasonably practicable. The Client’s obligation to pay for any amounts that are due to the Contractor shall not be affected by any Force Majeure event.
14.2 Where the Force Majeure event lasts for a period of more than sixty (60) days after the occurrence commences, each Party will have the right to terminate this Agreement by giving written notice to the other Party, such notice to have immediate effect.
15. Governing Laws
15.1 The performance of the Services shall comply with the applicable laws and regulations of the country where Services are to be performed.
15.2 Unless stated otherwise, the interpretation of the Agreement shall be based on the laws of VIC, Australia.
16. Settlement of Disputes
Any and all disputes, controversies and conflicts which arise from or in relation to the Agreement or provision of the Services shall, to the extent possible, be settled amicably by the Parties. Failure to make amicable settlement of any dispute shall be settled by arbitration. Unless specifically stated otherwise, the arbitration shall be held in the London Court of International Arbitration (“LCIA”) pursuant to the Rules of LCIA. The number of arbitrators shall be three, with each Party appointing an arbitrator and the third arbitrator shall be appointed by the two arbitrators appointed by the Parties. Arbitration shall be conducted in the English language. The decision of the arbitration shall be fully binding and final and neither Party has the right to carry out any action before any court on any dispute except for the enforcement of the decision of the said arbitration.
17. Entire Agreement
The Agreement constitutes the entire agreement between the Parties in relation to the provision of the Services, and supersedes all previous communications, negotiations, understandings and agreements, whether oral or written, between the Parties with respect thereto.
18. Severability
If any of these provisions (or part of a provision) is declared invalid by any tribunal or competent authority, then such provision (or part of a provision) shall be deemed automatically adjusted to conform to the requirements for validity as declared at such time and as so adjusted, shall be deemed a provision hereof as though originally included. If the provision (or part of a provision) invalidated is of such a nature that it cannot be so adjusted, the provision (or relevant part of the provision) shall be deemed to have been deleted as though the provision (or part of that provision) had never been included, in either case, the remaining provisions shall remain in full force and effect.
19. Remedies and Waiver
19.1 The rights and remedies provided for by the Agreement shall not be deemed to be the exclusive remedy for any breach of any provision of the Agreement but are cumulative with and shall be in addition to all other remedies available at law or equity.
19.2 Without prejudice to any other rights or remedies of each Party, the Parties acknowledge that damages might not be an adequate remedy for any breach of the provisions of the Agreement and that, accordingly, each Party shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement, including but not limited to breaches of Articles 7, 8 and 11. In the event of any threatened or actual breach, the defaulting Party agrees to waive any requirement by the non-defaulting Party to post a bond or any security in connection with any such remedy and the defaulting Party consents that such remedy may be obtained by the non-defaulting Party in the absence of evidence showing irreparable harm to the non-defaulting Party.
19.3 The failure to exercise or delay in exercising a right or remedy hereunder shall not constitute a waiver of the right or remedy or waiver of any other rights or remedies and no single or partial exercise of any right or remedy hereunder shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
20. Binding Agreement and Right of Enforcement
20.1 The Agreement shall be binding upon the Parties hereto and their legal successors and subject to Article 20.2 below, neither Party shall assign or transfer this Agreement without the written approval of the other Party, which shall not be unreasonably withheld. Upon any assignment or transfer, the Agreement shall bind and inure to the benefit of any such assignee or transferee, and such assignee or transferee shall be substituted for the assignor or transferor in all respects under the Agreement.
20.2 The Parties hereto agree that the Agreement shall be assignable and/or transferable by the Contractor, upon notice to the Client, to a subsidiary, parent, related company or affiliate of the Contractor.
20.3 A person who is not a Party hereto has no right under applicable law or statute to enforce or enjoy the benefit of any term herein except as expressly provided herein.
21. Amendments
No supplement, modification, amendment or waiver of these terms and conditions shall be binding unless it is in writing and signed by authorized agents of the Contractor.
22. Agreement to Prevail
Unless expressly stated in a set of separate terms and conditions forming part of the Agreement executed by both Parties, these General Terms shall prevail to the extent that there is any inconsistency or ambiguity between these General Terms and the provisions of any other document forming part of the Agreement.
23. Notices
All notices under the Agreement shall be in writing. A notice to a Party to the Agreement shall be sufficient in all respects if delivered by hand, sent by registered mail, telex or facsimile to the other Party's authorized representative and address nominated in the Agreement, or if no such nomination is made as advised by the other Party in accordance with this Article 23. Any notice so given shall be deemed to have been received on the date of delivery in case of delivery by hand, upon receipt if by registered mail (receipt confirmed upon signature of the addressee or any employee thereof), or upon transmission if by telex or facsimile (receipt confirmed by addressee's record of confirmed transmission), whichever first occurs.
As of 22/5/2020
