Terms and Conditions

ONBOFF SME Terms and Conditions

KEEP CONSULTING GROUP PTY LIMITED ABN 28 113 684 638 TRADING AS ONBOFF (we or us)STANDARD TERMS AND CONDITIONS FOR CLIENTS

Please read these terms and conditions very carefully. Any person accessing and/or using this Website as a Client (defined below) or prospective Client is bound by and shall be taken to accept these terms and conditions.

1. Definitions

For the purposes of these Terms:

Application means a form to become a Client.

Claim includes any claim, demand, remedy, suit, injury, damage, loss, Cost, charge or expense, Liability, action, proceeding, right of action and claim for compensation.

Client means a person approved by us to use our Packaged products or services in their business.

Cost includes any cost, charge, expense, outgoing, payment or other expenditure of any nature (whether direct, indirect or consequential and whether accrued or paid), including where appropriate any rates or legal and professional consultancy fees.

Global Personal Development means Global Personal Development Pty Limited ACN 163 119 275.

Gold Package means the terms and conditions of the Gold Package as specified by us from time to time.

Improvement means any improvement, enhancement or modification to the Licensed Material or its method of provision.

Law means any statute, order, proclamation, regulation, permit, notice, decree, statutory instrument, ordinance or by-law of an Authority, whether present or future and whether state, federal or otherwise and includes all amendments, modifications, consolidations, re-enactments or replacements of them or substitutions for them from time to time.

Liabilities include any obligation to pay money (including legal costs and any other costs of legal proceedings) and any other loss or Cost of any kind.

Licensed IP means all of the Licensed IP rights owned by or Licensed to us (whether or not in existence as at the date of these Terms) in connection with our business. It includes any Improvement.

Licensed Material means all material available on this Website which incorporates any Licensed IP and/or any other material which is created by us for any purpose connected with this agreement (including any material purchased from the Website, any template emails or other documents prepared as part of any Package, and/or any consultant training videos or other training materials prepared for a purpose connected with this agreement).

Onboff means Onboff and is a Business Name of ours.

Package means the Silver Package, the Gold Package, the Platinum Package or the Titanium Package (as the case may be).

Party means us and the relevant Client

Permitted Purpose means a purpose connected with the Client’s on-boarding and off-boarding services business (as the case may be).

Platinum Package means the terms and conditions of the Platinum Package as specified by us from time to time.

Services means any material than we provide on our Website.

Silver Package means the terms and conditions of the Silver Package as specified by us from time to time.

Titanium Package means the terms and conditions of the Titanium Package as specified by us from time to time.

Trademark means any registered or unregistered trademark, slogan, business name, logo or design owned by or licensed to us in connection with the Licensed IP.

User means the unique online access provided to one designated individual participant as nominated by the Client to access the modules supplied to the Client in accordance with this agreement.

Website means this Website (as modified and updated from time to time).

2. Ownership and Licensing of the Licensed IP and the Licensed Material

(a) Global Personal Development owns all Licensed IP. We have a licence from Global Personal Development to use and re-sell the Licensed IP. We have developed the Licensed IP for the purposes of providing onboarding and outplacement services to Clients and other third parties (the Services) through this Website.

(b) We will maintain this Website for the provision of the Services to our Clients, and each of the Clients shall have the right to use the materials on this Website and any other Services offered by us for as long as they remain Clients.

(c) We may update or modify this Website from time to time and reserve the right to do so as and when it deems it necessary or desirable. We need not need to give the Client any notice of, nor seek its prior approval to, any update or modification.

(d) The Client acknowledges that we own all intellectual property rights in and to this Website including all content in this Website as well as the designs and layouts within this Website (except as to any content owned by or licensed to us).

3. Right to Use Licensed IP and Packages of Package

(a) We have agreed to grant the Client the right to use the Licensed IP for the Permitted Purpose, subject to the Terms below and subject to the Clients’ ongoing compliance with these Terms.

(b) The Client acknowledges that the licence to use the Licensed Material is a non-exclusive licence only. We reserve the right to sell or otherwise use, disseminate or distribute all or part of the Licensed Material and/or use the Licensed IP for such other purposes as determined in our discretion. The Client shall not make any representation or warranty that it owns all or any of the Licensed Material, or has exclusive rights to them.

4. Packages on offer
(a) We offer four different service Packages for Clients – the Silver Package, the Gold Package, the Platinum Package and the Titanium Package. The Silver, Gold and Platinum Packages offer onboarding services only whereas the Titanium Package offers both onboarding and outplacement services to the Client.

(b) Any party wishing to become a Client and use this Website for the Permitted Purpose must first be approved as a Client by completing and lodging the online Application. The Application form must be duly completed prior to lodgement. If it is not duly completed and signed it will be rejected.

(c) A Client must select the Package at the time of entry into this agreement with us.

(d) There are additional terms relating to each separate Package, which may contain details relating to pricing, access Packages, training and other matters. These additional terms will be disclosed to the Client at the time of entry into this agreement with us. You will be required to approve such additional terms before access to this Website is granted. By entering into this agreement with us, and selecting a particular Package of Package, you are taken to have acknowledged and accepted that those additional terms will be taken to form part of this agreement and you shall be bound accordingly.

(e) We reserve the right and discretion to appoint or reject Clients for any reason.

(f) Once appointed as a Client, the Client will be directed to complete the transaction by transferring monies via EFT or via other electronic payment methods.

(g) Once payment has been received by us, you will be provided with a Setup Form to complete, and following completion, a unique username and password access to the Website for each User. You must ensure these details are safely and securely stored – we accept no liability or responsibility in the event of any misuse by any employee or agent of a Client.

(h) We reserve the right to change the terms and conditions relating to any Package at any time. Those changes will not however apply to your agreement with us and you shall continue to be bound by the terms and conditions as applicable at the time you entered into this agreement with us.

(i) A Client may rollover from one Package to a higher Package (each a rollover) on 1 month’s written notice to us – provided that:

(i) you are not in breach of this agreement as at the time of the rollover request (and as at the date of the anticipated rollover);

(ii) all fees and charges due to us as at the rollover date have been paid as at the date of the anticipated rollover; and

(ii) subject to your compliance with paragraphs (i) and (ii) above, the then current terms relating to the new Package shall apply to your agreement with us from the rollover date.

5. Training to use the Website

We will provide you with a training session on our service offering in such format as we shall determine.

6. Access to the Website

(a) Each Package offers access for the number of Users as specified in the additional terms for the respective Packages.

(c) Clients incur a fee per User, depending on the Package selected. This too is specified in the additional terms for the respective Packages.

(d) Users are administered by us, acting as Administrator of the Website. We will provide the Client with the User’s user name and password.

(e) We acknowledge the User has been created via the relationship with the Client.

7. Branding on the Website

(a) Clients will use their own branding on the Website – none of our branding will appear on any of the material contained on the Website.

(b) A Client will incur a one-time fixed price to establish the Client’s own portal bearing their own logo – which is a one time set up for each unique Client URL using onboff.com. Any variation to the Client’s logo, requiring a new logo, will incur a further charge.

(c) Once a Client has been approved by us and any commencement fees have been paid, we will establish a URL for each Client such as “onboff.com/ ApprovedResellerURL”(URL).

(d) The URL Establishment costs are included in the Package costs charged.

(e) The URL will be in such format and contain such designs, templates and web architecture as we shall determine in our discretion. We retain all intellectual property rights in and to all aspects of the URL.

(f) We reserve the right to update or modify the URL as and when necessary or desirable. We need not give the Client any notice of, nor seek its prior approval to, any update or modification.

(g) Clients must provide us with their logo and other materials for use on the landing page and login page in such format as may be required by us.

8. Use of Website materials

We own all Website materials and they must not be used or copied in whole or part by the Client except in accordance with this agreement. See clauses 12 and 13 below.

9. Release

The Client acknowledges that it uses the Licensed Material at its own risk and unconditionally and irrevocably releases and indemnifies us against any Claim or Liability arising as a result of the Clients’ use of the Licensed Material.
10. Use of Licensed IP

(a) The Client must:

(i) not use, and ensure that Clients do not use, any Licensed IP for any purpose other than the Permitted Purpose;

(ii) take all action necessary to maintain the confidential nature of the Licensed IP, including keeping all records of the Licensed IP under lock and key or password protection, and taking all appropriate steps to minimise reproductions thereof and to prevent the unauthorised use or reproduction thereof;

(iii) not disclose any of the Licensed IP to any person other than its servants and agents who may need to have access to the Licensed IP for the Permitted Purpose and who have been made aware of the requirements of this clause;

(iv) maintain a written record of the servants and agents who have been granted access to the Licensed IP and make same available to us on request;

(v) if so requested by us, ensure that any servants or agents having access to the Licensed IP sign appropriate undertakings (in a form approved by us) in order to maintain the confidentiality of the Licensed IP and to protect our interests in accordance with these Terms; and

(vi) return all documents and other materials in any medium in its possession, power or control which contain or refer to any Licensed IP, on the earlier of demand by us and/or upon termination of these Terms.

(b) The obligations under this clause do not apply to information which:

(i) the Client can prove was in the public domain or come into the public domain otherwise than as a result of breach of these Terms;

(ii) the Client can prove was lawfully in its possession at the time of first disclosure and was not acquired ly or inly from the other Party under an obligation of confidence; or

(iii) is required to be disclosed under any Law or under a procedure for discovery in any proceedings, provided that the Client must notify us as soon as reasonably practicable and must use all reasonable endeavours to protect the information and limit the extent of the disclosure.

11. Ownership of Licensed IP and Licensed Material

(a) The Client unconditionally and irrevocably acknowledges that:

(i) all right, title and interest in and to the Licensed IP and any Trademark shall vest in us (or the related entity from whom it may be Licensed by us) and that the Client has no right or interest therein; and

(ii) without limitation, the Client specifically acknowledges that all right, title and interest in and to any Improvements shall vest in us (or the related entity, as the case may be) absolutely; and

(iii) the Client shall at its Cost do all things and execute all documents necessary to give full force and effect to this clause and our rights under it.

(b) The Client undertakes that it will not at any time do or cause to be done any act or thing, ly, or inly, which in any way impairs or tends to impair our right, title or interest in the Licensed IP and/or any Trademark.

(c) The Client undertakes not to adopt, use, refer to or register any Trademarks at any time except as expressly permitted by us, nor use any business name or other trademark that is similar to or is likely to be confused with any Trademark.

(d) The Client shall:

(i) immediately bring any improper or wrongful use or any infringement or threatened infringement of the Trademarks or other Licensed IP which comes to its notice to our attention;

(ii) in and about the execution of its or any Client’s duties under these Terms or the exercise of its rights, use every effort to safeguard our proprietary rights, Trademarks and other business interests; and

(iii) at our request, assist in taking all steps (at our Cost) to defend our rights but shall not institute legal proceedings without our prior consent.

(e) For the avoidance of doubt, the Client acknowledges that:

(i) we (or the related entity from whom it licenses the Licensed Material) shall take such steps as we shall deem appropriate to protect our rights in relation to the Licensed IP including commence such legal proceedings and/or settle such proceedings as we shall deem appropriate in the circumstances;

(ii) all Costs associated with such enforcement proceedings shall be borne us (or the related entity, as the case may be) and we (or the related entity, as the case may be) indemnify the Client for and in respect of such proceedings but any damages or other amounts recovered in respect of the proceedings are our property (or the related entity, as the case may be) and the Client shall have no right to share in any such damages or other amounts recovered under any circumstances; and

(iii) the Client must comply with all our requests (or those from the related entity, as the case may be) in terms of instituting such proceedings.

12. Cessation of Rights

(a) We may terminate these Terms by notice in writing to the Client if:

(i) there is a breach of these Terms which in our opinion is incapable of remedy by the Client; or

(ii) there is a breach of these Terms which in our opinion is capable of remedy, and the Client fails to remedy the said breach at its Cost within 21 days of our request to do so.

(b) No Application fees are refundable in the event of any termination under this clause.

(c) The Client shall be liable for and indemnifies us for any Claim or Liability arising from a breach by the Client (or its servants or agents) of these Terms.

(d) Upon termination of these Terms for whatever reason:

(i) all rights and licenses shall cease and the Client shall immediately cease all activities using the Licensed IP; and

(ii) the Client undertakes not to use, adapt or adopt the Licensed IP and or the Improvements of any part of either of them for any purpose whatsoever; and

(iii) we reserve the right to cancel the Client’s access to this Website (or any part of it) and/or the URL.
13. Guarantee

(a) If the Client is a company then this clause shall apply to and bind each director of the Client (each, a Director).

(b) Each Director jointly and severally acknowledges that we enter into this agreement at each Director’s request and subject to the Directors giving this joint and several guarantee and indemnity and that the Directors have received valuable consideration.

(c) Each Director jointly and severally and unconditionally and irrevocably guarantees the punctual performance of all of the Client’s obligations under this agreement. The Directors shall immediately upon demand pay us any amount not paid when due by the Client under this agreement.

(d) Each Director jointly and severally and unconditionally and irrevocably indemnifies us, and shall keep us so indemnified, for and against all Claims which we may at any time suffer or incur because:

(i) an obligation of the Client expressed in this agreement is void, voidable or wholly or partially unenforceable; or

(ii) the Client fails to perform an obligation under this agreement.

(e) Each Director shall pay money owing under this agreement in immediately available funds without deduction and waives any right of set-off.

(f) The obligations and Liabilities of each Director, and our rights under this agreement, continue and are not affected by:

(i) our granting time or indulgence to the Client or another person;

(ii) our compounding or comprising with or wholly or partially releasing the Client or another person;

(iii) any delay, acts, omissions or mistakes by us;

(iv) the assignment or variation of this agreement;

(v) the death, mental illness or bankruptcy of the Client or any Director; or

(vi) the insolvency or deregistration of the Client; or

(vii) anything else which might have a similar effect at law or in equity to any of those actions or events.

14. Restraint

(a) The Client agrees that it shall not do the following whilst it is a Client, and for a period of 6 months after it ceases to be a Client, without our prior written consent:

(i) carry on or be interested directly or indirectly in any business similar to the business of ours (or a related entity) in any country in which we (or a related entity of ours) operates;

AND the Client agrees that it shall not do the following whilst it is a Client, and for a period of 12 months after it ceases to be a Client, without our prior written consent:

(ii) induce or attempt to induce any director, manager or employee of ours (or a related entity of ours) to terminate their employment with us (or a related entity of ours), whether or not that person would commit a breach of that person’s contract of employment;

(iii) induce or attempt to induce any person (including another Client) to terminate their licence or any other arrangement with us (or a related entity of ours, whether or not that person would commit a breach of that person’s licence or other such arrangement;

(iv) solicit or persuade any person who has dealt with us during the Term to cease doing business with us or utilise our services (or those of a related entity of ours) or reduce the amount of business or services which the person would normally do with us (or a related entity of ours);

(v) accept from any person referred to in paragraph (iv) any business of the kind ordinarily forming part of our business (or a related entity of ours); and/or

(vi) sell any other products and/or services to any client of ours (or a related entity of ours) without our prior written consent.

(b) The Client:

(i) acknowledges that the above restraints shall apply not only to the Client but also to any related entity or associate of the Client;

(ii) undertakes to ensure that none of its related entities or associates engage in any of the activities specified in paragraph (a)(i) during the 6 month restraint period specified and undertakes to ensure that none of its related entities or associates engage in any of the activities specified in paragraph (a)(ii)-(vi) during the 12 month restraint period specified; and

(iii) accepts that any breach of this clause by any related entity or associate of the Client shall be taken to constitute a breach by the Client; and

(iv) indemnifies us and shall keep us so indemnified for and in respect of any Claim arising from a breach of this clause either by the Approved Seller itself and/or any related entity or associate of the Client.

(c) The Client considers the restraints contained in this clause to be reasonably necessary for the protection of our interests (and our related entities) and intends the restraints to operate to the maximum extent.

(d) Each of the above covenants and separate, distinct and severable covenants, so that the unenforceability of any restraint does not affect the enforceability of the other restraints.

(e) If for whatever reason any of these restraints are found to be void as unreasonable for the protection of our interests (and/or our related entities), or would be valid if part of the wording was deleted or the period or area was reduced, then the Client agrees that the restraints will apply with the modifications necessary to make them effective.

GENERAL PROVISIONS

15. Risk and Insurance

(a) Subject to these Terms, the Client acknowledges that it shall operate and manage its own business at its own risk and as it shall determine, at such times and in such places as the Client determines, and at the Client’s sole Cost.

(b) The Client acknowledges it operates as an independent owner and operator of its consulting business and is not employed by us. Nor does the relationship between us and the Client constitute an agency, partnership, franchise, contracting, or joint venture or any other relationship. As such the Client acknowledges it is not entitled to any benefits to which an employee is entitled by law nor to any other benefits that an employee might be allowed. Without limitation, the Client will not make any Claim on us in respect of any wages, leave entitlements, superannuation entitlements, workers compensation entitlements, or any other employment related entitlements whether at Law or otherwise.

(c) The Client undertakes to comply with all Laws in relation to the carrying on of its training business.

(d) The Client shall obtain all approvals in relation to the operation of its business, and comply with the terms and conditions of any such approvals. The Client shall provide us with a copy of any such approvals on request and shall notify us if such approvals are suspended or revoked at any time.

(e) The Client undertakes to effect the following insurances:

(i) workers compensation insurance and public liability insurance;

(ii) professional indemnity insurance to cover all risks and Liabilities associated with the provision of any services by the Client utilising the Licensed Material; and

(iii) general all risks business insurance to cover any Liabilities arising from a breach of this agreement by the Client.

(f) Each insurance policy shall cover any Claims made whilst the Client is and remains a Client, and shall continue to cover any such Claims made even after the Client ceases to be an Client. The Client shall provide us with a copy of any such policies (or of the certificates of currency thereof) on request and shall notify us if any Claim is made under any such policy at any time.

16. Acknowledgment

(a) The Client acknowledges it has no exclusivity or priority over other Clients or other persons in relation to the use of any of the Licensed Materials, and that we (and our related entities) reserve the right to enter into whatever arrangements we may chose with other persons.

(b) We (and our related entities) make no guarantee in respect of the success of the Clients’ consulting business and/or the Licensed Materials. Without limitation we make no representation or warranty in respect of any projections or estimates as may have been given to the Client, and the Client specifically acknowledges that same are subject to the independent verification and investigation by the Client before signing these Terms or applying to purchase any Packages. In entering these Terms the Client acknowledges it has relied on its own investigations in relation to the our Business and our Business model, the management and profitability of the Client’s consulting business, and the effectiveness of the Licensed Material or any part of it.

(c) We (and our related entities) make no warranty and accept no liability or responsibility to the Client for, and the Client shall not make any Claim on us and/or its related entities in respect of or connection with the currency, accuracy or efficacy of the Licensed Materials or any other aspect of our Business model.

(d) We (and our related entities) make no warranty and accept no liability or responsibility to the Client for any viruses that may attack either this Website and/or enter the Client’s own computer network through this Website.

(e) We (and our related entities) make no warranty and accept no liability or responsibility to the Client for any hacking or other unauthorised access to this Website including any circumstances where unauthorised access is gained to any information about the Client and/or its clients and/or into the Client’s own computer network.

17. No Representation

The Client acknowledges and agrees that in entering into these Terms, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) made by us (or any of our servants or agents) other than as expressly set out in these Terms as a warranty or representation. The only remedy available to it for breach of such warranties or representations shall be for breach of contract under the terms of these Terms. Nothing in this clause shall, however, operate to limit or exclude any Liability for fraud.

18. Assignment, sale, re-branding

(a) The Client shall not assign, transfer, charge, encumber or otherwise deal with the whole or any part of these Terms or its obligations under it.

(b) If the Client wishes to sell all or any part of its business then it must notify us beforehand and we may, on notice to the Client:

(i) elect to continue to provide the Services – in which case the new entity must sign an agreement to the effect that it will agree to be bound by these Terms; or

(ii) elect to cease providing the Services following the sale (in which case no refund of any fees paid by the Client will be made).

19. Default

(a) The Client undertakes to comply with all the Terms and unconditionally and irrevocably indemnifies us, and shall keep us so indemnified, in the event of any breach of these Terms. Without limitation this indemnity covers all legal and other costs incurred by us in connection with any breach and/or enforcement of these Terms.

(b) Without limitation to paragraph (a), all fees and charges due under these Terms shall be paid by the Client as and when they are due. In the event of non-payment of any such fees and charges for any reason after a period of 7 days from the due date, then we reserve the right to charge interest on the unpaid amount, at the then Home Loan Rate charged by Westpac Banking Corporation Limited (without any “honeymoon” or other discounts being applied) plus a margin of 4% per annum. Such interest shall be calculated at daily rests, from the due date for payment (excluding the 7 day grace period) until the date of repayment in full.

(c) In the event of non-payment of any fees and charges, or any breach of these Terms, then in addition to any other rights we have at law or under these Terms, we reserve the right to suspend or cancel all or any access to the Website and/or any associated services provided pending rectification of the breach. Each and every time any such services are suspended or cancelled you will be liable to pay us an administration fee of $1,000 + GST in order to re-activate access to the Website and ancillary services (which will be payable as a condition of re-activation) (Re-activation Fee). In that event we accept no responsibility or liability for any adverse consequences directly or indirectly arising, and are expressly and unconditionally released of any such liability during the period of suspension/ cancellation.

(d) If the Client provides credit card details for the purposes of any payments under these Terms (Credit Card) then the Client must ensure that the credit card is current at all times. If and when the card expires (or insufficient credit is available on the Credit Card to cover any fees or charges due) then the Client must notify us before the due date for any payment and make alternative arrangements for payment in the meantime.

(e) If the Client provides EFT details for the purposes of any payments under these Terms (Bank Account) then the Client must ensure that the bank account details provided are current at all times. If and when the account is closed (or insufficient funds are available in the account for any fees or charges due) then the Client must notify us before the due date for any payment and make alternative arrangements for payment in the meantime.

(f) The Client expressly authorises us to deduct from the Credit Card or Bank Account all and any fees and charges due under these Terms (including any interest payable under paragraph (b) above and/or the Re-activation Fee).

(g) The Approved Seller shall sign such direct debit authorities or other consents as may be required by us of the Credit Card provider/financial institution to enable all fees and charges to be charged to the Credit Card or the Bank Account (as the case may be).

(h) Any fees or charges as may be charged by the Credit Card provider or financial institution in connection with any debit by us shall be payable by the Client.

20. Severability

If any part of these Terms is declared invalid or unenforceable by the judgment or decree by consent or otherwise of a court of competent jurisdiction from whose decision no appeal is or can be taken all other clauses or parts of clauses contained in these Terms shall remain in full force and effect and shall not be affected by such finding.

21. No Waiver

No relaxation, forbearance, delay or indulgence by either Party in enforcing any of the terms and conditions of these Terms or the granting of time by either Party to the other shall prejudice, affect or restrict the rights and powers of the said Party nor shall any waiver by either Party of any breach of these Terms operate as a waiver of or in relation to any subsequent or any continuing breach of it.

22. Standard Terms and Modification of These Terms

(a) The standard terms and conditions of this Website shall be may be modified at any time by us, without notice to the Client. Any such modified Terms shall be deemed to apply on and from the modification date accordingly. All other clauses or parts of clauses contained in these Terms shall remain in full force and effect and shall not be affected by such modification except to the extent of the modification.

(b) As and when the Client lodges an Application, the Client:

(i) reconfirms, for the avoidance of doubt, its unconditional acceptance of these Terms and its agreement to be bound by these Terms; and

(ii) warrants to us that it is not, as at the date of submission of the Application, in breach of any of the Terms.

23. Liability for Clients

The Client acknowledges that:
(a) the Client shall use its best endeavours to ensure that each of its servants and agents perform each of the obligations on the part of the Client under these Terms and comply with all Laws in the exercise by them of any rights for and on behalf of the Client;

(b) the Client shall be responsible for the actions of its servants and agents and for ensuring their due compliance with paragraph (a) and with any of the terms of these Terms;

(c) any actions by any servant or agent of the Client which would give rise to a breach of any of the provisions of these Terms as if they had been done by the Client may be enforced by us (at the Client’s Cost) at its discretion against the Client as if they had been done by the Client; and

(d) the Client by its execution of these Terms indemnifies us and shall keep us so indemnified against any breaches of these Terms by any of its servants or agents as if the Client had committed the breach itself.

24. Authority

The Client acknowledges that neither it nor any of its servants or agents shall have any authority or power to bind us (or any related entity) or to contract in the name of and create a liability against us (or any related entity) in any way or for any purpose.

25. Notices

(a) Any notice or other document to be given under these Terms may be given by way of the last known email address to the relevant party. Any email notice shall be deemed to have been sent on the date of the email and received at 10 am on the next following Business Day (regardless of the time it was sent, and whether or not the recipient responds to the email or otherwise acknowledges receipt). If the recipient’s email server generates an “out of office reply” then this shall not displace the general rule above. If the recipients email server generates a message to the effect that the email “cannot be delivered” then this shall displace the general rule and the sender may then send the notice by way of post in accordance with paragraph (b) below.

(b) Any notice or other document to be posted shall be sent by registered post to the recipient’s registered place of business. Any notice sent by post shall be taken to have been delivered 5 days after despatch and in proving the fact of despatch it shall be sufficient to show a confirmation/receipt of dispatch or that the envelope containing such notice was properly addressed, stamped and posted.

26. Governing Law

These Terms shall be governed by and interpreted in accordance with the laws of New South Wales, Australia and the Parties hereby submit to the exclusive jurisdiction of the New South Wales courts.

27. Independent Advice

(a) The Client (and each of its Directors, if a company) acknowledges that it has read and understood these Terms, has had ample opportunity to obtain its own independent legal and financial advice if required, and has agreed to be bound by the Terms freely and voluntarily without coercion of any kind.

(b) We have relied upon the representations and acknowledgments contained in this clause in approving any Application submitted by the Client.

(c) This clause may be relied upon or pleaded by us in any proceedings relating to or connected with the subject matter of these Terms to the fullest extent possible and expressly authorises its use in any such proceedings.

28. Warranty

Each Party warrants, as at the date of execution of these Terms, that:
(a) it has the power and authority to enter into and perform its obligations under these Terms and that the execution of these Terms by it has been duly and validly authorised by all necessary corporate action;

(b) its obligations under these Terms are valid and binding and enforceable against it in accordance with their terms;

(c) these Terms and its performance do not contravene its constituent documents or any law, or any of its obligations or undertakings by which it is bound, or cause a limitation on its powers of its corporate officers to be exceeded; and

(d) it has the resources, skills, knowledge and abilities necessary to perform its obligations under these Terms.

ONBOFF Recruiter and HR Consultant Terms and Conditons

KEEP CONSULTING GROUP PTY LIMITED ABN 28 113 684 638 TRADING AS ONBOFF (we or us)STANDARD TERMS AND CONDITIONS FOR APPROVED RESELLERS

Please read these terms and conditions very carefully. Any person accessing and/or using this Website as an Approved Reseller (defined below) or prospective Approved Reseller is bound by and shall be taken to accept these terms and conditions.

1. Definitions

For the purposes of these Terms:

Application means a form to become an Approved Reseller.

Approved Reseller means a person appointed by us as an approved reseller of any of our products or services, whether at the Silver Package, the Gold Package or the Platinum Package.

Claim includes any claim, demand, remedy, suit, injury, damage, loss, Cost, charge or expense, Liability, action, proceeding, right of action and claim for compensation.

Cost includes any cost, charge, expense, outgoing, payment or other expenditure of any nature (whether direct, indirect or consequential and whether accrued or paid), including where appropriate any rates or legal and professional consultancy fees.

Global Personal Development means Global Personal Development Pty Limited ACN 163 119 275.

Gold Package means the terms and conditions of the Gold Package as specified by us from time to time.

Improvement means any improvement, enhancement or modification to the Licensed Material or its method of provision.

Law means any statute, order, proclamation, regulation, permit, notice, decree, statutory instrument, ordinance or by-law of an Authority, whether present or future and whether state, federal or otherwise and includes all amendments, modifications, consolidations, re-enactments or replacements of them or substitutions for them from time to time.

Liabilities include any obligation to pay money (including legal costs and any other costs of legal proceedings) and any other loss or Cost of any kind.

Licensed IP means all of the Licensed IP rights owned by or Licensed to us (whether or not in existence as at the date of these Terms) in connection with our business. It includes any Improvement.

Licensed Material means all material available on this Website which incorporates any Licensed IP and/or any other material which is created by us for any purpose connected with this agreement (including any material purchased from the Website, any template emails or other documents prepared as part of any Package, and/or any consultant training videos or other training materials prepared for a purpose connected with this agreement).

Onboff means Onboff and is a Business Name of ours. Party means us and the relevant Approved Reseller.

Package means the Silver Package, the Gold Package or the Platinum Package (as the case may be).

Permitted Purpose means a purpose connected with the Approved Reseller’s on-boarding and off-boarding services business.

Platinum Package means the terms and conditions of the Platinum Package as specified by us from time to time.

Services means any material than we provide on our Website.

Silver Package means the terms and conditions of the Silver Package as specified by us from time to time.

Trademark means any registered or unregistered trademark, slogan, business name, logo or design owned by or licensed to us in connection with the Licensed IP.

User means the unique online access provided to one designated individual participant as nominated by the Approved Reseller to access the modules supplied to the Approved

Reseller in accordance with this agreement.

Website means this Website (as modified and updated from time to time).

2. Ownership and Licensing of the Licensed IP and the Licensed Material

(a) Global Personal Development owns all Licensed IP. We have a licence from Global Personal Development to use and re-sell the Licensed IP. We have developed the Licensed IP for the purposes of providing onboarding and outplacement services to Approved Resellers and other third parties (the Services) through this Website.

(b) We will maintain this Website for the provision of the Services to our Approved Resellers, and each of the Approved Resellers shall have the right to use the materials on this Website and any other Services offered by us for as long as they remain Approved Resellers.

(c) We may update or modify this Website from time to time and reserve the right to do so as and when it deems it necessary or desirable. We need not need to give the Approved Reseller any notice of, nor seek its prior approval to, any update or modification.

(d) The Approved Reseller acknowledges that we own all intellectual property rights in and to this Website including all content in this Website as well as the designs and layouts within this Website (except as to any content owned by or licensed to us).

3. Right to Use Licensed IP and Packages of Package

(a) We have agreed to grant the Approved Reseller the right to use the Licensed IP for the Permitted Purpose, subject to the Terms below and subject to the Approved Resellers’ ongoing compliance with these Terms.

(b) The Approved Reseller acknowledges that the licence to use the Licensed Material is a non-exclusive licence only. We reserve the right to sell or otherwise use, disseminate or distribute all or part of the Licensed Material and/or use the Licensed IP for such other purposes as determined in our discretion. The Client shall not make any representation or warranty that it owns all or any of the Licensed Material, or has exclusive rights to them.

4. Packages on offer

(a) We offer three different service Packages for Approved Resellers – the Silver Package, the Gold Package and the Platinum Package.

(b) Any party wishing to become an Approved Reseller and use this Website for resale must first be approved as an Approved Reseller by completing and lodging the online Application. The Application form must be duly completed prior to lodgement. If it is not duly completed and signed it will be rejected.

(c) An Approved Reseller must select the Package at the time of entry into this agreement with us.

(d) There are additional terms relating to each separate Package, which may contain details relating to pricing, access Packages, training and other matters. These additional terms will be disclosed to the Approved Reseller at the time of entry into this agreement with us. You will be required to approve such additional terms before access to this Website is granted. By entering into this agreement with us, and selecting a particular Package of Package, you are taken to have acknowledged and accepted that those additional terms will be taken to form part of this agreement and you shall be bound accordingly.

(e) We reserve the right and discretion to appoint or reject Approved Resellers for any reason.

(f) Once appointed as an Approved Reseller, the Approved Reseller will be directed to complete the transaction by transferring monies via EFT or via other electronic payment methods.

(g) Once payment has been received by us, you will be provided with a Setup Form to complete, and following completion, a unique username and password access to the Website for each User. You must ensure these details are safely and securely stored – we accept no liability or responsibility in the event of any misuse by any employee or agent of an Approved Reseller.

(h) We reserve the right to change the terms and conditions relating to any Package at any time. Those changes will not however apply to your agreement with us and you shall continue to be bound by the terms and conditions as applicable at the time you entered into this agreement with us.

(i) An Approved Reseller may rollover from one Package to a higher Package (each a rollover) on 1 month’s written notice to us – provided that:

(i) you are not in breach of this agreement as at the time of the rollover request (and as at the date of the anticipated rollover);

(ii) all fees and charges due to us as at the rollover date have been paid as at the date of the anticipated rollover; and
(ii) subject to your compliance with paragraphs (i) and (ii) above, the then current terms relating to the new Package shall apply to your agreement with us from the rollover date.
5. Training to use the Website

We will provide you with a training session on our service offering in such format as we shall determine.

6. Access to the Website

(a) Each Package offers access for the number of Users as specified in the additional terms for the respective Packages.

(c) Approved Resellers incur a fee per User, depending on the Package selected. This too is specified in the additional terms for the respective Packages.

(d) Users are administered by us, acting as Administrator of the Website. We will provide the Approved Reseller with the User’s user name and password.

(e) We acknowledge the User has been created via the relationship with the Approved Reseller.

7. Branding on the Website

(a) The Silver Package offers access to our Website with our branding. No changes can be made to the format or design under any circumstances.

(b) The Gold and Platinum Packages also offer access to our Website but the landing page and login pages will have the Approved Resellers’ own branding and all our branding will be removed from the home page accordingly.

(c) Approved Resellers with the Gold or Platinum Package incur a one-time fixed price to establish the Approved Reseller’s own portal bearing their own logo – which is a one time set up for each unique Approved Reseller URL using onboff.com. Any variation to the logo, requiring a new logo, will incur a further charge.

(c) Once an Approved Reseller has been appointed by us and any commencement fees have been paid by the Approved Reseller, we will establish a URL for each Approved Reseller such as “onboff.com/ ApprovedResellerURL”(URL).

(d) The URL Establishment costs are included in the Package costs charged.

(e) The URL will be in such format and contain such designs, templates and web architecture as we shall determine in our discretion. We retain all intellectual property rights in and to all aspects of the URL.

(f) We reserve the right to update or modify the URL as and when necessary or desirable. We need not give the Approved Reseller any notice of, nor seek its prior approval to, any update or modification.

(g) Approved Resellers with the Gold or Platinum Package must provide us with their logo and other materials for use on the landing page and login page in such format as may be required by us.

8. Use of Website materials

We own all Website materials and they must not be used or copied in whole or part by the Approved Reseller except in accordance with this agreement. See clauses 12 and 13 below.

9. Purchase of Website materials

All materials available for purchase on our Website shall contain the Trademarks used in our Business and the Approved Reseller cannot remove or deface the Trademarks under any circumstances, nor use or copy all or any materials except in accordance with this agreement. See clauses 12 and 13 below.

10. Links to other digital media and other services

We reserve the right to offer other services on this Website or have links to other websites with complementary service or product offerings. We also reserve the right to offer other packages to other Users in our discretion.

11. Release

The Approved Reseller acknowledges that it uses the Licensed Material at its own risk and unconditionally and irrevocably releases and indemnifies us against any Claim or Liability arising as a result of the Approved Resellers’ use of the Licensed Material.

12. Use of Licensed IP

(a) The Approved Reseller must:

(i) not use, and ensure that Approved Resellers do not use, any Licensed IP for any purpose other than the Permitted Purpose;

(ii) take all action necessary to maintain the confidential nature of the Licensed IP, including keeping all records of the Licensed IP under lock and key or password protection, and taking all appropriate steps to minimise reproductions thereof and to prevent the unauthorised use or reproduction thereof;

(iii) not disclose any of the Licensed IP to any person other than its servants and agents who may need to have access to the Licensed IP for the Permitted Purpose and who have been made aware of the requirements of this clause;

(iv) maintain a written record of the servants and agents who have been granted access to the Licensed IP and make same available to us on request;

(v) if so requested by us, ensure that any servants or agents having access to the Licensed IP sign appropriate undertakings (in a form approved by us) in order to maintain the confidentiality of the Licensed IP and to protect our interests in accordance with these Terms; and

(vi) return all documents and other materials in any medium in its possession, power or control which contain or refer to any Licensed IP, on the earlier of demand by us and/or upon termination of these Terms.

(b) The obligations under this clause do not apply to information which:

(i) the Approved Reseller can prove was in the public domain or come into the public domain otherwise than as a result of breach of these Terms;

(ii) the Approved Reseller can prove was lawfully in its possession at the time of first disclosure and was not acquired directly or indirectly from the other Party under an obligation of confidence; or

(iii) is required to be disclosed under any Law or under a procedure for discovery in any proceedings, provided that the Approved Reseller must notify us as soon as reasonably practicable and must use all reasonable endeavours to protect the information and limit the extent of the disclosure.

13. Ownership of Licensed IP and Licensed Material

(a) The Approved Reseller unconditionally and irrevocably acknowledges that:

(i) all right, title and interest in and to the Licensed IP and any Trademark shall vest in us (or the related entity from whom it may be Licensed by us) and that the Approved Reseller has no right or interest therein; and

(ii) without limitation, the Approved Reseller specifically acknowledges that all right, title and interest in and to any Improvements shall vest in us (or the related entity, as the case may be) absolutely; and

(iii) the Approved Reseller shall at its Cost do all things and execute all documents necessary to give full force and effect to this clause and our rights under it.

(b) The Approved Reseller undertakes that it will not at any time do or cause to be done any act or thing, directly, or indirectly, which in any way impairs or tends to impair our right, title or interest in the Licensed IP and/or any Trademark.

(c) The Approved Reseller undertakes not to adopt, use, refer to or register any Trademarks at any time except as expressly permitted by us, nor use any business name or other trademark that is similar to or is likely to be confused with any Trademark.

(d) The Approved Reseller shall:

(i) immediately bring any improper or wrongful use or any infringement or threatened infringement of the Trademarks or other Licensed IP which comes to its notice to our attention;

(ii) in and about the execution of its or any Approved Reseller’s duties under these Terms or the exercise of its rights, use every effort to safeguard our proprietary rights, Trademarks and other business interests; and

(iii) at our request, assist in taking all steps (at our Cost) to defend our rights but shall not institute legal proceedings without our prior consent.

(e) For the avoidance of doubt, the Approved Reseller acknowledges that:

(i) we (or the related entity from whom it licenses the Licensed Material) shall take such steps as we shall deem appropriate to protect our rights in relation to the Licensed IP including commence such legal proceedings and/or settle such proceedings as we shall deem appropriate in the circumstances;

(ii) all Costs associated with such enforcement proceedings shall be borne us (or the related entity, as the case may be) and we (or the related entity, as the case may be) indemnify the Approved Reseller for and in respect of such proceedings but any damages or other amounts recovered in respect of the proceedings are our property (or the related entity, as the case may be) and the Approved Reseller shall have no right to share in any such damages or other amounts recovered under any circumstances; and

(iii) the Approved Reseller must comply with all our requests (or those from the related entity, as the case may be) in terms of instituting such proceedings.

14. Cessation of Rights

(a) We may terminate these Terms by notice in writing to the Approved Reseller if:

(i) there is a breach of these Terms which in our opinion is incapable of remedy by the Approved Reseller; or

(ii) there is a breach of these Terms which in our opinion is capable of remedy, and the Approved Reseller fails to remedy the said breach at its Cost within 21 days of our request to do so.

(b) No Application fees are refundable in the event of any termination under this clause.

(c) The Approved Reseller shall be liable for and indemnifies us for any Claim or Liability arising from a breach by the Approved Reseller (or its servants or agents) of these Terms.

(d) Upon termination of these Terms for whatever reason:

(i) all rights and licenses shall cease and the Approved Reseller shall immediately cease all activities using the Licensed IP; and

(ii) the Approved Reseller undertakes not to use, adapt or adopt the Licensed IP and or the Improvements of any part of either of them for any purpose whatsoever; and

(iii) we reserve the right to cancel the Approved Reseller’s access to this Website (or any part of it) and/or the URL.

15. Guarantee

(a) If the Approved Reseller is a company then this clause shall apply to and bind each director of the Approved Reseller (each, a Director).

(b) Each Director jointly and severally acknowledges that we enter into this agreement at each Director’s request and subject to the Directors giving this joint and several guarantee and indemnity and that the Directors have received valuable consideration.

(c) Each Director jointly and severally and unconditionally and irrevocably guarantees the punctual performance of all of the Approved Reseller’s obligations under this agreement. The Directors shall immediately upon demand pay us any amount not paid when due by the Approved Reseller under this agreement.

(d) Each Director jointly and severally and unconditionally and irrevocably indemnifies us, and shall keep us so indemnified, for and against all Claims which we may at any time suffer or incur because:

(i) an obligation of the Approved Reseller expressed in this agreement is void, voidable or wholly or partially unenforceable; or

(ii) the Approved Reseller fails to perform an obligation under this agreement.

(e) Each Director shall pay money owing under this agreement in immediately available funds without deduction and waives any right of set-off.

(f) The obligations and Liabilities of each Director, and our rights under this agreement, continue and are not affected by:

(i) our granting time or indulgence to the Approved Reseller or another person;

(ii) our compounding or comprising with or wholly or partially releasing the Approved Reseller or another person;

(iii) any delay, acts, omissions or mistakes by us;

(iv) the assignment or variation of this agreement;

(v) the death, mental illness or bankruptcy of the Approved Reseller or any Director; or

(vi) the insolvency or deregistration of the Approved Reseller; or

(vii) anything else which might have a similar effect at law or in equity to any of those actions or events.

16. Restraint

(a) The Approved Reseller agrees that it shall not do the following whilst it is an Approved Reseller, and for a period of 6 months after it ceases to be an Approved Reseller, , without our prior written consent:

(i) carry on or be interested directly or indirectly in any business similar to the business of ours (or a related entity) in any country in which we (or a related entity of ours) operates;
AND the Approved Reseller agrees that it shall not do the following whilst it is an Approved Reseller, and for a period of 12 months after it ceases to be an Approved Reseller, without our prior written consent:

(ii) induce or attempt to induce any director, manager or employee of ours (or a related entity of ours) to terminate their employment with us (or a related entity of ours), whether or not that person would commit a breach of that person’s contract of employment;

(iii) induce or attempt to induce any person (including another Approved Reseller) to terminate their licence or any other arrangement with us (or a related entity of ours, whether or not that person would commit a breach of that person’s licence or other such arrangement;

(iv) solicit or persuade any person who has dealt with us during the Term to cease doing business with us or utilise our services (or those of a related entity of ours) or reduce the amount of business or services which the person would normally do with us (or a related entity of ours);

(v) accept from any person referred to in paragraph (iv) any business of the kind ordinarily forming part of our business (or a related entity of ours); and/or

(vi) sell any other products and/or services to any client of ours (or a related entity of ours) without our prior written consent.

(b) The Approved Reseller:

(i) acknowledges that the above restraints shall apply not only to the Approved Reseller but also to any related entity or associate of the Approved Reseller;

(ii) undertakes to ensure that none of its related entities or associates engage in any of the activities specified in paragraph (a)(i) during the 6 month restraint period specified and undertakes to ensure that none of its related entities or associates engage in any of the activities specified in paragraph (a)(ii)-(vi) during the 12 month restraint period specified; and

(iii) accepts that any breach of this clause by any related entity or associate of the Approved Reseller shall be taken to constitute a breach by the Approved Reseller; and

(iv) indemnifies us and shall keep us so indemnified for and in respect of any Claim arising from a breach of this clause either by the Approved Seller itself and/or any related entity or associate of the Approved Reseller.

(c) The Approved Reseller considers the restraints contained in this clause to be reasonably necessary for the protection of our interests (and our related entities) and intends the restraints to operate to the maximum extent.

(d) Each of the above covenants and separate, distinct and severable covenants, so that the unenforceability of any restraint does not affect the enforceability of the other restraints.

(e) If for whatever reason any of these restraints are found to be void as unreasonable for the protection of our interests (and/or our related entities), or would be valid if part of the wording was deleted or the period or area was reduced, then the Approved Reseller agrees that the restraints will apply with the modifications necessary to make them effective.

GENERAL PROVISIONS

17. Risk and Insurance

(a) Subject to these Terms, the Approved Reseller acknowledges that it shall operate and manage its own business at its own risk and as it shall determine, at such times and in such places as the Approved Reseller determines, and at the Approved Reseller’s sole Cost.

(b) The Approved Reseller acknowledges it operates as an independent owner and operator of its consulting business and is not employed by us. Nor does the relationship between us and the Approved Reseller constitute an agency, partnership, franchise, contracting, or joint venture or any other relationship. As such the Approved Reseller acknowledges it is not entitled to any benefits to which an employee is entitled by law nor to any other benefits that an employee might be allowed. Without limitation, the Approved Reseller will not make any Claim on us in respect of any wages, leave entitlements, superannuation entitlements, workers compensation entitlements, or any other employment related entitlements whether at Law or otherwise.

(c) The Approved Reseller undertakes to comply with all Laws in relation to the carrying on of its training business.

(d) The Approved Reseller shall obtain all approvals in relation to the operation of its business, and comply with the terms and conditions of any such approvals. The Approved Reseller shall provide us with a copy of any such approvals on request and shall notify us if such approvals are suspended or revoked at any time.

(e) The Approved Reseller undertakes to effect the following insurances:

(i) workers compensation insurance and public liability insurance;

(ii) professional indemnity insurance to cover all risks and Liabilities associated with the provision of any services by the Approved Reseller utilising the Licensed Material; and

(iii) general all risks business insurance to cover any Liabilities arising from a breach of this agreement by the Approved Reseller.

(f) Each insurance policy shall cover any Claims made whilst the Approved Reseller is and remains an Approved Reseller, and shall continue to cover any such Claims made even after the Approved Reseller ceases to be an Approved Reseller. The Approved Reseller shall provide us with a copy of any such policies (or of the certificates of currency thereof) on request and shall notify us if any Claim is made under any such policy at any time.

18. Acknowledgment

(a) The Approved Reseller acknowledges it has no exclusivity or priority over other Approved Resellers or other persons in relation to the use of any of the Licensed Materials, and that we (and our related entities) reserve the right to enter into whatever arrangements we may chose with other persons.

(b) We (and our related entities) make no guarantee in respect of the success of the Approved Resellers’ consulting business and/or the Licensed Materials. Without limitation we make no representation or warranty in respect of any projections or estimates as may have been given to the Approved Reseller, and the Approved Reseller specifically acknowledges that same are subject to the independent verification and investigation by the Approved Reseller before signing these Terms or applying to purchase any Packages. In entering these Terms the Approved Reseller acknowledges it has relied on its own investigations in relation to the our Business and our Business model, the management and profitability of the Approved Reseller’s consulting business, and the effectiveness of the Licensed Material or any part of it.

(c) We (and our related entities) make no warranty and accept no liability or responsibility to the Approved Reseller for, and the Approved Reseller shall not make any Claim on us and/or its related entities in respect of or connection with the currency, accuracy or efficacy of the Licensed Materials or any other aspect of our Business model.

(d) We (and our related entities) make no warranty and accept no liability or responsibility to the Approved Reseller for any viruses that may attack either this Website and/or enter the Approved Reseller’s own computer network through this Website.

(e) We (and our related entities) make no warranty and accept no liability or responsibility to the Approved Reseller for any hacking or other unauthorised access to this Website including any circumstances where unauthorised access is gained to any information about the Approved Reseller and/or its clients and/or into the Approved Reseller’s own computer network.

19. No Representation

The Approved Reseller acknowledges and agrees that in entering into these Terms, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) made by us (or any of our servants or agents) other than as expressly set out in these Terms as a warranty or representation. The only remedy available to it for breach of such warranties or representations shall be for breach of contract under the terms of these Terms. Nothing in this clause shall, however, operate to limit or exclude any Liability for fraud.

20. Assignment, sale, re-branding

(a) The Approved Reseller shall not assign, transfer, charge, encumber or otherwise deal with the whole or any part of these Terms or its obligations under it.

(b) If the Approved Reseller wishes to sell all or any part of its business then it must notify us beforehand and we may, on notice to the Approved Reseller:

(i) elect to continue to provide the Services – in which case the new entity must sign an agreement to the effect that it will agree to be bound by these Terms; or

(ii) elect to cease providing the Services following the sale (in which case no refund of any fees paid by the Client will be made).

21. Default

(a) The Approved Seller undertakes to comply with all the Terms and unconditionally and irrevocably indemnifies us, and shall keep us so indemnified, in the event of any breach of these Terms. Without limitation this indemnity covers all legal and other costs incurred by us in connection with any breach and/or enforcement of these Terms.

(b) Without limitation to paragraph (a), all fees and charges due under these Terms shall be paid by the Approved Reseller as and when they are due. In the event of non-payment of any such fees and charges for any reason after a period of 7 days from the due date, then we reserve the right to charge interest on the unpaid amount, at the then Home Loan Rate charged by Westpac Banking Corporation Limited (without any “honeymoon” or other discounts being applied) plus a margin of 4% per annum. Such interest shall be calculated at daily rests, from the due date for payment (excluding the 7 day grace period) until the date of repayment in full.

(c) In the event of non-payment of any fees and charges, or any breach of these Terms, then in addition to any other rights we have at law or under these Terms, we reserve the right to suspend or cancel all or any access to the Website and/or any associated services provided pending rectification of the breach. Each and every time any such services are suspended or cancelled you will be liable to pay us an administration fee of $1,000 + GST in order to re-activate access to the Website and ancillary services (which will be payable as a condition of re-activation) (Re-activation Fee). In that event we accept no responsibility or liability for any adverse consequences directly or indirectly arising, and are expressly and unconditionally released of any such liability during the period of suspension/ cancellation.

(d) If the Approved Reseller provides credit card details for the purposes of any payments under these Terms (Credit Card) then the Approved Reseller must ensure that the credit card is current at all times. If and when the card expires (or insufficient credit is available on the Credit Card to cover any fees or charges due) then the Approved Reseller must notify us before the due date for any payment and make alternative arrangements for payment in the meantime.

(e) If the Approved Reseller provides EFT details for the purposes of any payments under these Terms (Bank Account) then the Approved Reseller must ensure that the bank account details provided are current at all times. If and when the account is closed (or insufficient funds are available in the account for any fees or charges due) then the Approved Reseller must notify us before the due date for any payment and make alternative arrangements for payment in the meantime.

(f) The Approved Reseller expressly authorises us to deduct from the Credit Card or Bank Account all and any fees and charges due under these Terms (including any interest payable under paragraph (b) above and/or the Re-activation Fee).

(g) The Approved Seller shall sign such direct debit authorities or other consents as may be required by us of the Credit Card provider/financial institution to enable all fees and charges to be charged to the Credit Card or the Bank Account (as the case may be).

(h) Any fees or charges as may be charged by the Credit Card provider or financial institution in connection with any debit by us shall be payable by the Approved Reseller.

22. Severability

If any part of these Terms is declared invalid or unenforceable by the judgment or decree by consent or otherwise of a court of competent jurisdiction from whose decision no appeal is or can be taken all other clauses or parts of clauses contained in these Terms shall remain in full force and effect and shall not be affected by such finding.

23. No Waiver

No relaxation, forbearance, delay or indulgence by either Party in enforcing any of the terms and conditions of these Terms or the granting of time by either Party to the other shall prejudice, affect or restrict the rights and powers of the said Party nor shall any waiver by either Party of any breach of these Terms operate as a waiver of or in relation to any subsequent or any continuing breach of it.

24. Standard Terms and Modification of These Terms

(a) The standard terms and conditions of this Website shall be may be modified at any time by us, without notice to the Approved Reseller. Any such modified Terms shall be deemed to apply on and from the modification date accordingly. All other clauses or parts of clauses contained in these Terms shall remain in full force and effect and shall not be affected by such modification except to the extent of the modification.

(b) As and when the Approved Reseller lodges an Application, the Approved Reseller:

(i) reconfirms, for the avoidance of doubt, its unconditional acceptance of these Terms and its agreement to be bound by these Terms; and

(ii) warrants to us that it is not, as at the date of submission of the Application, in breach of any of the Terms.

25. Liability for Approved Resellers

The Approved Reseller acknowledges that:
(a) the Approved Reseller shall use its best endeavours to ensure that each of its servants and agents perform each of the obligations on the part of the Approved Reseller under these Terms and comply with all Laws in the exercise by them of any rights for and on behalf of the Approved Reseller;

(b) the Approved Reseller shall be responsible for the actions of its servants and agents and for ensuring their due compliance with paragraph (a) and with any of the terms of these Terms;

(c) any actions by any servant or agent of the Approved Reseller which would give rise to a breach of any of the provisions of these Terms as if they had been done by the Approved Reseller may be enforced by us (at the Approved Reseller’s Cost) at its discretion against the Approved Reseller as if they had been done by the Approved Reseller; and

(d) the Approved Reseller by its execution of these Terms indemnifies us and shall keep us so indemnified against any breaches of these Terms by any of its servants or agents as if the Approved Reseller had committed the breach itself.

26. Authority

The Approved Reseller acknowledges that neither it nor any of its servants or agents shall have any authority or power to bind us (or any related entity) or to contract in the name of and create a liability against us (or any related entity) in any way or for any purpose.

27. Notices

(a) Any notice or other document to be given under these Terms may be given by way of the last known email address to the relevant party. Any email notice shall be deemed to have been sent on the date of the email and received at 10 am on the next following Business Day (regardless of the time it was sent, and whether or not the recipient responds to the email or otherwise acknowledges receipt). If the recipient’s email server generates an “out of office reply” then this shall not displace the general rule above. If the recipients email server generates a message to the effect that the email “cannot be delivered” then this shall displace the general rule and the sender may then send the notice by way of post in accordance with paragraph (b) below.

(b) Any notice or other document to be posted shall be sent by registered post to the recipient’s registered place of business. Any notice sent by post shall be taken to have been delivered 5 days after despatch and in proving the fact of despatch it shall be sufficient to show a confirmation/receipt of dispatch or that the envelope containing such notice was properly addressed, stamped and posted.

28. Governing Law

These Terms shall be governed by and interpreted in accordance with the laws of New South Wales, Australia and the Parties hereby submit to the exclusive jurisdiction of the New South Wales courts.

29. Independent Advice

(a) The Approved Reseller (and each of its Directors, if a company) acknowledges that it has read and understood these Terms, has had ample opportunity to obtain its own independent legal and financial advice if required, and has agreed to be bound by the Terms freely and voluntarily without coercion of any kind.

(b) We have relied upon the representations and acknowledgments contained in this clause in approving any Application submitted by the Approved Reseller.

(c) This clause may be relied upon or pleaded by us in any proceedings relating to or connected with the subject matter of these Terms to the fullest extent possible and expressly authorises its use in any such proceedings.

30. Warranty

Each Party warrants, as at the date of execution of these Terms, that:
(a) it has the power and authority to enter into and perform its obligations under these Terms and that the execution of these Terms by it has been duly and validly authorised by all necessary corporate action;

(b) its obligations under these Terms are valid and binding and enforceable against it in accordance with their terms;

(c) these Terms and its performance do not contravene its constituent documents or any law, or any of its obligations or undertakings by which it is bound, or cause a limitation on its powers of its corporate officers to be exceeded; and

(d) it has the resources, skills, knowledge and abilities necessary to perform its obligations under these Terms.