General Terms and Conditions for Video Access Consulting Services

1. Terms and Conditions of Business

1.1         These terms and conditions of business (‘the Terms’) apply in respect of the services ‘Services’) to be performed by Universal Captions (Egress Group Pty Ltd trading as Universal Captions ACN 169 509 611 of 44 Lakeview Drive, Scoresby, VIC 3179, Australia), for the Client named in Fee Proposal or Fee Variation Form (‘the Client’).

1.2         The Client and Universal Captions (‘Universal Captions’) are collectively referred to as the ‘Parties’.

1.3         These Terms form the Contract (‘Contract’) between the Parties for the Services to be provided by Universal Captions.

1.4         The ‘Services’ are those disability access services offered by Universal Captions as described in the Schedules in the Fee Proposal/Fee Variation Form tendered to the Client.

2. Acceptance of the Terms and Conditions

2.1         Signing a ‘Fee Proposal Engagement Form’ to engage Universal Captions to provide the Services will confirm your acceptance of this Agreement.

2.2         Signing a ‘Fee Variation Form’ for additional Services will confirm you continue to accept these Terms.

Definitions and Interpretations

3. Definitions

3.1         In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:

3.1.1      Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);

3.1.2      Commencement Date means the date the signed ‘Fee Proposal Engagement Form’ or ‘Fee Variation Form’ is received at Universal Captions offices.

3.1.3      Confidential Information includes any information marked as confidential and any information received or developed by Universal Captions during the term of this engagement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business including all information, data, drawings, specifications, documentation, techniques, concepts not reduced to material form, agreements with third parties.

3.1.4      Consultant’s Personnel means any person(s) that Universal Captions designates to perform the Services on Universal Captions’ behalf;

3.1.5      Fee(s) means the fee as set out in the Schedules in the Fee Proposal or Fee Variation Form (as applicable);

3.1.6      GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

3.1.7      Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;

3.1.8      Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;

3.1.9      Parties means Universal Captions and the Client, and Party shall mean either one of them;

3.1.10    Purpose means the provision of disability access consulting services;

3.1.11    Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001(Cth);

3.1.12    Schedule means the specific Services to be provided by Universal Captions under this Agreement, outlined in fee proposal and variation documentation;

3.1.13    Termination Date means the earlier of (a) the date of termination of this Agreement by the Client or Universal Captions; and (b) the date of expiry of this Agreement.

Interpretation

4.1         In this Agreement unless the context otherwise requires:

4.1.1      words importing any gender include every gender;

4.1.2      words importing the singular number include the plural number and vice versa;

4.1.3      words importing persons include firms, companies, corporations and vice versa;

4.1.4      references to numbered clauses, sub-clauses and schedules are references to the relevant clause or sub-clause in this Agreement;

4.1.5      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;

4.1.6      the headings to the clauses of this Agreement are not to affect the interpretation;

4.1.7      any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and

4.1.8      the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.

Services and Fees

5. Services

5.1        Universal Captions shall provide the Services for the Purpose and as the Parties may agree from time to time to the Client.

5.2        Universal Captions and the Client shall agree the time and place for the performance of the Services.

5.3        Universal Captions shall use reasonable endeavours to complete the Services including the provision of data, materials or reports by the Completion Date or any other dates agreed by the Parties.

5.4         The Services shall be performed by such employees or agents that Universal Captions may choose as most appropriate to carry out the Consultancy Services as agreed, from time to time by the Parties.

5.5         The Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Services, and the Fee(s) shall be set out in the Specification.

6. Location

6.1        Universal Captions shall provide the Services in such places and locations as Universal Captions considers appropriate to the type and nature of the requirements of the Client.

7. Fee(s)

7.1         In consideration of the provision of the Services in accordance with this Agreement, the Client will pay Universal Captions the Fee(s).

7.2         The Client acknowledges that the Fee(s) shall be exclusive of any GST that may be charged by Universal Captions to the Client, and therefore, Universal Captions will be entitled to add on GST.

7.3        Universal Captions shall provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 7.

7.4         Following receipt of Universal Captions’ invoice referred to in sub-clause 7.3, payment shall be made by the Client to Universal Captions within the number of days detailed in the Schedule of the Fee Proposal/Variation.

7.5         The invoice referred to in sub-clause 7.3 must include the following details before payment can be approved and forwarded:

7.5.1      date of Services;

7.5.2      name of individual provided by Universal Captions;

7.5.3      description of Services provided;

7.5.4      time allocated per task; and

7.5.5      the ABN of Universal Captions.

7.6        Universal Captions is permitted to charge for all costs and expenses incurred in performing the Services, including the expenses set out in Fee Proposal / Fee Variation Schedules and as agreed by the Parties from time to time.

7.7         If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, Universal Captions shall be entitled to do any of the following:

7.7.1      charge interest at a rate equal to the current Australian Tax Office General Interest Rate, accruing daily (https://www.ato.gov.au/Rates/General-interest-charge-(GIC)-rates);

7.7.2      charge an administration fee of $50;

7.7.3      require the Client to pay, in advance, for any Services (or any part of the Services which have not yet been performed; and

7.7.4      not perform any further Services (or any part of the Services).

7.8         When making a payment the Client shall quote relevant reference numbers and the invoice number.

Obligations of Each Party

8. Universal Captions Personnel

8.1         The Client may, at any time, if it has reasonable grounds which have been disclosed and discussed with Universal Captions, by notice in writing to Universal Captions, require Universal Captions to cease to permit a particular person or persons employed by Universal Captions or acting as agents of Universal Captions to carry out the Services.

8.2         If the Client makes the requirement referred to in sub-clause 8.1, Universal Captions must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of the Client’s business and provide the services of an alternative person or persons as may be reasonably acceptable to the Client.

9. Intellectual Property Rights

9.1        Universal Captions retains copyright ownership of all written material provided to the Client whilst performing the Services. The Client retains copyright ownership of all media material provided to the Universal Caption to perform the Services.

9.2         Third parties must not be provided copies of reports, letters, information or advice, without first obtaining the written permission of Universal Captions. When permitting use Universal Captions reserves the right to:

9.2.1      Set the terms on which copies are used; and/or

9.2.2      Require the third party to enter into a direct relationship with Universal Captions or to enter a deed of confidentiality.

The Client’s Obligations

10.1       During the performance of the Services the Client will:

10.1.1    co-operate with Universal Captions as Universal Captions reasonably requires;

10.1.2    provide the information and documentation that Universal Captions reasonably requires;

10.1.3    make available to Universal Captions such Facilities as Universal Captions reasonably requires; and

10.1.4    ensure that the Client’s staff and agents co-operate with and assist Universal Captions.

10.2       The Client will not charge for Universal Captions’ use of the Facilities made available by the Client.

10.3       If the Client does not provide the Facilities that Universal Captions reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by Universal Captions will be paid by the Client.

11. No Partnership or Employment Relationship

11.1       Nothing in this Agreement constitutes the relationship of employer and employee between the Client and Universal Captions or between the Client and the Universal Captions’ Personnel. It is the express intention of the parties that any such relationships are denied.

12. Confidentiality

12.1       Universal Captions’ privacy policy is contained on the website (www.universalcaptions.com.au) or can be provided on request (“Privacy Policy”).

12.2      Universal Captions must keep the Client’s, and any Related Body Corporate of the Client’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

12.3       The Client and Universal Captions acknowledge that information resulting from the activities of Universal Captions pursuant to this Agreement shall also be regarded as Confidential Information and Universal Captions agrees that Universal Captions’ obligations in sub-clause 12.2 extend to this category of information.

12.4      Universal Captions’ obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by the Client, in the case of Confidential Information pertaining to the Client’s business;

12.5       At the Termination Date, or when earlier directed by the Client:

12.5.1    all Confidential Information must be returned to the Client, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that Universal Captions makes and any software that Universal Captions creates based on the Confidential Information; and

12.5.2    Universal Captions must erase and destroy any copies of any software containing or comprising the Confidential Information in Universal Captions’ possession or under Universal Captions’ control or that may have been loaded onto a computer possessed or controlled by Universal Captions.

12.6       The Confidential Information does not include information which:

12.6.1    is generally available in the public domain otherwise than as a result of a breach of sub-clause 12.2 by Universal Captions; or

12.6.2    was known by Universal Captions prior to the Client disclosing the information to Universal Caption.

12.7      Universal Captions agrees that the Client may require any of Universal Captions’ Personnel to sign a confidentiality agreement in a form that the Client approves, as a condition of the Client’s acceptance of any of Universal Captions’ Personnel.

12.8      Universal Captions agrees to indemnify the Client fully against all liabilities, costs and expenses which the Client may incur as a result of any breach of this clause by Universal Captions.

12.9      Universal Captions acknowledges that damages may be an inadequate remedy for breach of this clause and that the Client may obtain injunctive relief against Universal Captions for any breach of this clause.

12.10     The obligations accepted by Universal Captions under this clause survive termination or expiry of this Agreement/engagement.

13. Warranties, Liability and Indemnities

13.1      Universal Captions warrants that it will use reasonable care and skill in performing the Services and to the standard generally accepted within the industry, sector or profession in which Universal Captions operates for the type of Services provided by Universal Captions.

13.2       If Universal Captions performs the Services (or any part of the Services) negligently or materially in breach of this Agreement including any part of the Specification, then, if requested by the Client, Universal Captions will re-perform the relevant part of the Services, subject to sub-clauses 13.8 and 13.9 below.

13.3       The Client’s request referred to in sub-clause 13.2 must be made within 1 month of the date Universal Captions completed performing the Consultancy Services.

13.4      Universal Captions shall effect all insurance required to be effected by law including worker’s compensation insurance as prescribed by law for Universal Captions’ Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.

13.5      Universal Captions covenants that Universal Captions shall be solely responsible for the payment to Universal Captions’ 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 Universal Captions’ employees or agents and to otherwise comply with legislation applicable to Universal Captions’ employees and agents.

13.6       Throughout the continuance of this engagement Universal Captions shall comply at Universal Captions’ 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 so far as the same may affect or apply to Universal Captions or to the Services, and Universal Captions shall indemnify the Client from and against all actions, costs, charges, claims and demands in respect thereof.

13.7      Universal Captions provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in this Agreement or elsewhere.

13.8       Except in the case of death or personal injury caused by Universal Captions’ negligence, the liability of Universal Captions under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the Client to Universal Captions under this Agreement. The provisions of this sub-clause shall not apply to sub-clauses 13.6 and 13.10.

13.9       Neither Party shall be 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 sub-clause shall not apply to sub-clauses 13.6 and 13.10.

13.10     The Client shall indemnify and hold harmless Universal Captions from and against all Claims and Losses arising from loss, damage, liability, injury to Universal Caption, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by Universal Caption, its employees or consultants, or supplied to Universal Captions by the Client within or without the scope of this engagement.

13.11     Each of the Parties acknowledges that, in entering into this Agreement/engagement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

13.12    Universal Captions must supply the Client with evidence of Universal Captions’ ABN and must include this number on any statement provided to the Client. Universal Captions acknowledges that if Universal Captions fails to provide an ABN, then the Client is entitled to withhold any proportion of the payments to Universal Captions as may be required under the relevant law for tax purposes.

13.13    Universal Captions warrants that Universal Captions has no authority to engage the services of any person as an employee or agent of the Client.

13.14    Universal Captions warrants that Universal Captions shall not incur any liability on behalf of the Client or in any way pledge or purport to pledge the Client’s credit or accept any other or make any contract binding upon the Client without prior approval being given by the Client.

14. Termination

14.1       Either Party may terminate this Agreement by notice in writing to the other if the other Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 days’ notice of the breach being given in writing by the notifying Party to the other Party.

14.2       Either Party may terminate this Agreement upon the happening of any of the following events:

14.2.1    the giving of written notice of at least 7 days by one Party to the other Party of the intention to terminate this Agreement;

14.2.2    if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or

14.2.3    if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

14.3       The Client may, at its discretion, pay to Universal Captions the equivalent amount of the fees payable by the Client to Universal Captions during the notice period in lieu of any notice period relating to termination of this Agreement.

14.4       Upon termination of this Agreement any fees, expenses or reimbursements payable by the Client to Universal Captions in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.

General

15. Force majeure

15.1       Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.

16. Amendments

16.1       This Agreement may only be amended in writing signed by duly authorized representatives of the Parties.

17. Assignment

17.1       Subject to sub-clause 17.2, neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.

17.2       A Party may assign and transfer all its rights and obligations under this Agreement 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 under this Agreement.

18. Entire Agreement

18.1       This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.

18.2       The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

19. Waiver

19.1       No failure or delay by Universal Captions in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall 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.

19.2       The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

20. Agency, Partnership etc.

20.1       This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

20.2       Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

21. Further assurance

21.1       Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

22. Severance

22.1       If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

23. Announcements

23.1       Subject to sub-clause 23.2, no Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.

23.2       No Party shall be prohibited from issuing or making any such public announcement or is closing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

24. Notices

24.1       A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement or sent by facsimile to the facsimile number of the addressee.

25. Work, Health and Safety

25.1      Universal Captions is committed to providing a healthy, safe and clean workplace for its employees, contractors and visitors. Universal Captions’ goal is to foster and sustain a positive safety culture. This commitment is implemented through our OHS Management Plan.

25.2      Universal Captions is required to comply with all relevant work, health, safety and welfare standards and regulations determined by the Client or as prescribed by legislation.

26. Law and Jurisdiction

26.1       This Agreement takes effect, is governed by, and shall 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.