Terms & Conditions
Standard terms and conditions for the supply of services
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
- 1.1 : Definitions
- Australian Consumer Law: the full text of the Australian Consumer Law (ACL) is set out in Schedule 2 of the Competition and Consumer Act 2010 (previously known as the Trade Practices Act 1974 (TPA))
- Business Day: a day other than a Saturday, Sunday, national Australia public holiday or Queensland public holiday
- Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6 (Charges and payment)
- Commencement Date: has the meaning given in clause 2.2
- Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5
- Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions
- Customer: the person or firm who purchases Services from the Supplier
- Customer Default: has the meaning set out in clause 5.2
- Data Protection Legislation: refers to the Australian Privacy Principles established by the Commonwealth Privacy Act 1988 (the Privacy Act) and subsequent amendments
- Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer which shall include questionnaires, surveys and survey reports
- Intellectual Property Rights: copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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
- Order: the Customer's order for Services
- Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification
- Supplier: CFEP Surveys registered in Australia ABN 61 074 264 010
- Supplier Materials: all materials contained in the Survey Pack sent to the Customer including but not limited to paper questionnaires, guidelines
- 1.2 : Interpretation
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision
- Any words following the terms including include, in particular, for example, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
- A reference to writing or written includes email
2 Basis of contract
The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
Any samples, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 45 Business Days from its date of issue or such period stated in the quotation.
3. Supply of Services
The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Destruction Of Questionnaires
The Supplier shall destroy paper copies of the questionnaire received from survey subjects after processing and will not return these to the Customer.
The Customer can request the return of questionnaires (if not already destroyed). While each request will be considered individually, in the majority of cases, questionnaires would not be returned in order to maintain the anonymity of those who provided feedback.
5. Customer's obligations
The Customer shall:
- ensure that the terms of the Order are complete and accurate;
- co-operate with the Supplier in all matters relating to the Services;
- provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier;
- provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- comply with all applicable laws, including data protection and obligations of confidentiality imposed upon it by law or any regulator;
If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
- the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 5.2; and
- the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default
6. Charges and payment
The Charges for the Services shall be those set out in the quotation or calculated in accordance with the Supplier's current price list at the date of the Contract available on request.
Unless payment in arrears is set out in the Order, the Supplier shall invoice the Customer and the Customer shall pay each invoice submitted by the Supplier on presentation, in full, in advance of the Services being supplied.
In the event payment in arrear is set out in the Order, the Customer shall pay each invoice submitted by the Supplier:
- within 30 days of the date of the invoice; and
- by credit or debit card, cheque or bank transfer in full and in cleared funds to a bank account nominated in writing by the Supplier, and
- time for payment shall be of the essence of the Contract
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (GST). Where any taxable supply for GST purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid GST invoice from the Supplier, pay to the Supplier such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Any changes or additions to the Services will be subject to an appropriate administration charge.
The Supplier will send an electronic report to the Customer. If a bound paper copy is required there will be an administration charge.
7. Intellectual property rights
All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) and the Supplier’s website shall be owned by the Supplier. This shall include but is not limited to the format, layout, text, images and set up of the survey and any data entered onto any questionnaire by a recipient subject.
The Customer shall use the Deliverables in the format provided, whether paper, electronic or otherwise and shall not make copies or reproductions without prior written permission of the Supplier.
The Supplier grants to the Customer, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business or operations, subject to the following limitations::
- The Customer shall not copy the Deliverables in whole or part or transfer to third parties without the prior written permission of the Supplier; and:
- The Customer shall not copy or process any information entered onto any questionnaire or survey by a recipient subject
The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.3.
The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
8. Data protection and data processing
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
The Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
- process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. Where the Supplier is relying on laws of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
not transfer any Personal Data outside of Australia unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a Personal Data breach;
- at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data
9. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms referred to in the Australian Consumer Law
The Supplier provides the Deliverables on an information basis only. The Supplier does not provide recommendations or advice regarding the Customer’s use of the Deliverables.
Subject to clause 9.1, the Supplier's total liability to the Customer shall not exceed the total charges payable by the Customer under the Contract. The Supplier's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
This clause 9.4 sets out specific heads of excluded loss and exceptions from them:
- Subject to clause 9.1, the types of loss listed in clause 9.4(b) are wholly excluded by the parties
The following types of loss are wholly excluded:
- Loss of profits
- Loss of sales or business
- Loss of agreements or contracts
- Loss of anticipated savings
- Loss of use or corruption of software, data or information
- Loss of or damage to goodwill
- Indirect or consequential loss
The following types of loss and specific loss are not excluded:
- Sums paid by the Customer to the Supplier pursuant to the Contract, in respect of Services not provided in accordance with the Contract
- Wasted expenditure
- Additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract
- Losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of the Supplier
The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3.
This clause 9 shall survive termination of the Contract.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy
Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11. Consequences of termination
On termination of the Contract:
- the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract
Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Assignment and other dealings. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3(b)
Each party may disclose the other party's confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.3;
- to any governmental or regulatory authority in the event either party reasonably believes a failure to disclose the other party’s confidential information will put patient safety at risk; or
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority
- Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter
- Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract
Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order
Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt;
- if sent by pre-paid first-class post or other next working day delivery service, at 11.00 am on the second Business Day after posting or at the time recorded by the delivery service[and
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8(b)(iii), business hours means 8.45am to 4.45pm Monday to Friday on a day that is not a public holiday in the place of receipt
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution
Third party rights.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Australian Consumer Law to enforce any term of the Contract
Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the Australian Consumer Law.