Terms and
Conditions

GENERAL TERMS AND CONDITIONS

These General Terms set out the terms and conditions which, unless specifically excluded or amended, apply to all services provided by Premium Solutions (the Company) to any other party (Client). A reference to any term or condition in any written document between the Company and a Client is a reference to these General Terms. 

1. APPOINTMENT AND TERM

   1. Appointment

      • Client appoints Company (the Appointment) to provide services to Client (the Services) as described in a letter of engagement, any other document or via a chain of linked correspondence (each, a Contract).
      • The Appointment is on an exclusive basis. This means Client must not during the Term appoint, or approach with a view to appointing, any other party to provide any service to Client that is the same as, or substantially similar to, the Services unless the Company is not able to provide the Services for which the other party has been approached, and then only for so long as the Company is not able to provide the required Services.
      • Without derogating from clause 1.A.ii, Company may provide services that are the same as, or substantially similar to, the Services to any other party even if that other party is a competitor of Client.

   2. Term

      • The Appointment will commence on the commencement date (Commencement Date) as set out in the Contract (notwithstanding the date of execution of the Contract) and will last for a fixed term of 3 years, unless otherwise noted in the Contract.
      • Upon expiry of the Term, the Contract will endure on a continuous basis, subject to the right of either party to terminate the Appointment in writing, according to the designated notice period.

2. SERVICES

   1. Provision of Services

      Company must provide the Services to Client as set out in a Contract and subject to any special terms contained therein.

   2. Representative

      • Each Party must appoint a representative (Representative).
      • The Parties must manage the provision of the Services as follows:
        • Company’s Representative is responsible to oversee and manage the provision of the Services.
        • Client’s Representative is responsible for submitting queries to, or fielding queries from, Company in relation to the Services.
        • the Representatives must meet at least quarterly (or at such other frequency as agreed in writing between the Parties) to discuss the Services, including contract compliance and any issue of concern or interest to either Party and any proposed solutions for addressing the same; and
        • either Party may, by notice in writing to the other Party, replace its nominated Representative/s.

3. OBLIGATIONS OF THE PARTIES

   • Company Obligations

     Company Must:

     • perform the Services in a professional, diligent, and lawful manner having regard to the legislation governing the Services in the State in which they are being provided and to the standard of skill and care expected of a service provider experienced in the provision of the Services. Client acknowledges that Services and rostered personnel are provided according to the brief and direction supplied by Client. Provided the Company has complied substantially with Client’s instructions, the Company is not liable for any loss or liability arising from any direction given (or not given) by Client.
     • use best efforts to supply that number of personnel to perform the Services on any occasion as requested by the Client, unless Company is of view, acting reasonably, that a lesser or greater number of personnel is required. In such event, and unless circumstances otherwise dictate, Company will obtain Client’s approval to the provision of a different number of personnel (which approval may be given after the fact). Company will be responsible for the supervision and control of all personnel deployed, all of whom must appropriately license, qualified, trained, and competent in the provision of the Services.
     • in conducting the Services and discharging any other obligation under the Contract, comply with:

4. FEES

   • Fees

     Subject to any special terms, the Client must pay to Company the Fees in the manner and frequency specified in the Contract, or in any schedule to a Contract, as the case may be.

   • Invoices

     • Company must invoice the Client in the manner specified in Contract and if not specified, weekly in arrears. All invoices issued by Company to the Client should, where possible, be consolidated and must:
     • identify with reasonable particularity the Services to which they relate.
     • refer to the time period to which it relates.
     • be issued in accordance with the terms and conditions of the Contract.
     • be addressed to the Client,
     • include Company’s correct bank and account details for payment,
     • be in the form of a valid tax invoice clearly showing separately the amount of GST payable.

   • Payment

     Unless otherwise specified all Fees are payable prior to Services being rendered, or when approved, then in arrears within 7 days of date of invoice. Company may suspend all or any Services pending payment of any outstanding invoice (together with accrued interest and/or costs).

   • Disputed Amounts

     If a Client disputes an invoice, then Client must pay the non-disputed portion of the invoice. Once the dispute is resolved, Company will include the resolved amount in the next invoice the Company submits to the Client in accordance with the Contract and in the absence of any further invoice, Client must pay to the Company the resolved amount within 3 days of the amount being resolved. Notwithstanding any dispute in relation to any invoice, the parties must continue to perform their respective obligations under a Contract.

   • Interest

     The Company reserves the right to charge interest on late payments, which will be at 10% per annum, calculated daily, compounded monthly in arrears, and reckoned from the date of payment until the actual date of payment.

   • Set Off

     All Fees must be paid by a Client under the Contract on due date and without set off.

   • Cost and Other Charges

     • Client must reimburse the Company for any reasonable expenses incurred by Company on behalf of Client provided that any expense over $100 must be pre-approved in writing by Client.
     • Any claim for approved reimbursable expenses must be included in the next invoice submitted by Company.
     • If the Company gives Client a direction in writing specifying that payment of any invoice must be made to a third party, Client must make payment to that third party in the manner specified.
     • Client must bear and pay (on an indemnity basis) all costs of late payment collection including legal fees, agent’s fees, and court costs in the event of default by Client of any payment due under any Contract.

5. PRIVACY AND PERSONAL INFORMATION

   If, in the course of providing the Services or performing its obligations under a Contract, Company obtains any Personal Information, Company must:

   • Treat that Personal Information as Confidential Information in accordance with clause 6.
   • Only act on the instruction of the Client and comply with the Client requirements including the Client’s privacy policy and other policies and procedures which relate to the handling of Personal Information as provided to Company from time to time in writing; and
   • Ensure that all Personal Information is stored within Australia and must not transfer any Personal Information outside of Australia unless it has obtained the prior written consent of the Company.

6. CONFIDENTIALITY

   • • Use of Confidential Information

   Company must:

   • • • treat as strictly confidential and only use and reproduce Confidential Information of the Client to perform its obligations under the Contract.
       • not disclose or otherwise make available the Confidential Information of the Client other than to its personnel, officers, or external advisers (acting as such) who have a need to know the Confidential Information in order to provide the Services and who have agreed in writing to maintain the confidentiality of such Confidential Information.

     • Disclosures of Confidential Information

   Without limiting the generality of clause 6.A, Company must not, without the prior written approval of Client, either during or after termination of the Contract, make a record of or divulge or communicate to any person or body, and must prevent the publication or disclosure of, any Confidential Information and Company must not make use of any such Confidential Information for any purpose whatsoever not directly necessary for performance of its obligations under a Contract.

7. NON-APPROACH, NON-CIRCUMVENTION and NON-COMPETE

   • The Client acknowledges that the Company will discharge its obligations under a Contract by sub-contracting other parties to provide services and products to the Client and that the relationship the Company enjoys with its subcontractors is valuable to the Company and key to its business. The Client agrees not to circumvent or endeavour to circumvent the terms of a Contract by approaching or contracting with any entity that renders services or supplies employees or products to the Client as a sub-Contractor to, or agent of, the Company with a view to obtaining any or all of such services, employees or products directly from that entity and that if it does so in contravention of this clause, the Company may obtain injunctive relief, at the cost of the Client (on a full indemnity basis), to protect its rights.
   • The Client agrees and undertakes, it will not, directly or indirectly, either during or for a period of 12 months after termination of a Contract, solicit, approach with a view to employing or engaging or actually employ or engage any employee of, or consultant (or independent Company) to the Company or any person who was in the employ of, engaged or sub contracted by, the Company during the 12 months immediately preceding termination of the Contract or in any other manner induce such person (or Company) to leave the employ of the Company or otherwise terminate its (direct or indirect) relationship with the Company.

8. TERMINATION

   • Termination for Cause

     A party (the Aggrieved Party) may terminate the Contract in whole or in part, immediately by notice to the other party (Defaulting Party) if:

     • The Defaulting Party is in breach of a material term of the Contract which is not capable of remedy.
     • The Defaulting Party is in breach of a material term of the Contract, which is capable of remedy, and the breach is not remedied within 14 days of receipt of written notice from the Aggrieved Party to remedy the breach: or
     • An order is made for the Defaulting Party to be wound up otherwise than voluntarily for the purpose of solvent amalgamation or reconstruction, the Defaulting Party becomes insolvent or bankrupt, has a receiver of its property or assets or any of them appointed, has an official manager appointed, makes or offers to make any assignment for the benefit of creditors, enters or offers to enter into a deed or scheme or arrangement of composition with creditors otherwise than for the purpose of solvent amalgamation or reconstruction, or any proceedings under any bankruptcy or liquidation or insolvency laws are commenced by or against the Defaulting Party or any guarantor or surety for the Defaulting Party.

   • Consequences of Termination or Expiry

     • Termination of the Contract for any reason, will not prejudice any right of action or remedy which may have accrued to either party prior to termination.
     • During the Notice Period but subject to clause 8.2(c), the Company must continue to render the Services and provide personnel to the Client (who must accept the same) as per agreed rosters and if no rosters have been, or have been able to be, agreed then the number of personnel provided shall be the average of the number of personnel provided by the Company during the three weeks preceding the start of the Notice Period.
     • Notwithstanding clause 8.B(ii), the Client may make payment to the Company in lieu of accepting personnel from the Company in an amount of determined by the number of personnel calculated under clause 8.2(b) or an amount equal to the charges billed in the previous 60 days, depending on the nature of the Contract.

   • Survival

     The provisions of the Contract that deal with intellectual property, confidentiality, warranties, indemnity, insurance and consequences of termination or expiry survive the termination or expiry of the Contract and may be enforced at any time.

9. DISPUTES

   • A Party claiming that a dispute (Dispute) has arisen under or in connection with the Contract shall notify the other Party in writing giving details of the dispute.
   • During the fourteen (14) day period after a notice is given under clause 9(a) (or any longer period agreed in writing between the Parties) (the Dispute Period) the Parties’ Representatives must work in good faith to resolve the Dispute.
   • If the Dispute is not resolved by the Parties’ Representative within the Dispute Period, the Dispute must be referred to the respective managing directors (or CEOs) who must work together in good faith to resolve the Dispute for a further period of at least fourteen (14) days (or any longer period agreed in writing between the Parties).
   • While the procedure set forth in this clause 9 is being followed, both Parties must continue to fulfil their obligations under the Contract.
   • The procedure set out in this clause 9 is not intended to, and does not, limit or exclude a Party’s rights under the Contract or at common law or equity (including the right to make application for interim or urgent relief, including injunctions).
   • If, despite the endeavours of the Parties, the Dispute is not resolved within the Dispute Period, the party raising the Dispute may take such action as it deems fit out of any court of competent jurisdiction.
   • If a party fails to comply with this clause by refusing to enter into negotiations to resolve the Dispute or failing to negotiate in good faith, the other party may refer the Dispute to mediation or may commence proceedings out of any court or tribunal of competent jurisdiction without following the provisions of this clause 9.

10. GST

    • Consideration is Exclusive of GST

      Unless otherwise expressly stated, all Fees or other sums payable or consideration to be provided under or in accordance with the Contract are exclusive of GST.

    • Recipient to Pay an Additional Amount

      If GST is imposed on any supply made under or in accordance with a Contract, the recipient of the taxable supply must pay to Company an additional amount equal to GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with a Contract.

    • Reimbursement

      If the Contract requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense plus any GST payable by the other party.

11. NOTICES

    • General

      A notice, demand, certification, process, or other communication relating to the Contract must be in writing in English.

    • How to Give a Communication

      A communication must be given by one of the following means:

      • personal delivery.
      • being left at the party’s current address for notices.
      • sent to the party’s current address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail; or
      • sent by email.

    • Communications by Post

      A communication is given if posted:

      • within Australia to an Australian address, 2 Business Days after posting; or
      • in any other case, 7 Business Days after posting, in each case, excluding the date of posting.

    • Communications by E-mail

      A communication is given if sent by email, when the sender’s device produces a report that the email was sent in full to the addressee. That report is conclusive evidence that the addressee received the email in full at the time indicated on that report.

12. GUARANTEE

    In consideration for entering into the Contract at their request, each director of the Client, by their signature to the Contract, binds themselves personally, on a joint and several basis, as guarantor for the due and punctual payment of all monies owed by the Client to the Company under, or in connection with, the Contract.

13. RELATIONSHIP OF PARTIES

    • A Contract is not intended to, and does not, create a partnership, joint venture, or agency relationship between the parties. The Company is an independent Company and will perform and execute the Services using its own policies, techniques, and methods. It will follow the directions of the Client only as to the results to be achieved. No person engaged in performing the Services shall be deemed to be an employee, consultant, or agent of the Client for any purposes whatsoever.
    • If licensed security personnel are being provided, then, unless otherwise agreed, The Client acknowledges that, under the Security Industry Act 1997 (NSW) s 38A, it has been advised that the Company may use sub-contracting arrangements from time to time to provide the Services or supply the required personnel. The Client hereby consents to this arrangement.

14. GENERAL

    • Ownership of Property

      • The Company owns and will continue to own all tangible and intellectual property provided to the Client throughout the Appointment.
      • No physical or intellectual property should be used or shared by the Client without the express written permission of the Company.
      • The Client is responsible for the safe-keeping and proper use of all physical and intellectual property that is hired to; or stored on Client’s premises during the term of this Appointment and must reimburse the Company for the replacement cost of any equipment or chattels lost or damaged whilst in the possession or under the care of Client.

    • Legal Costs

      Except as expressly stated otherwise in a Contract, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing, and performing its obligations under a Contract.

    • Amendment

      The Contract may only be varied or replaced by an agreement executed by the parties.

    • Waiver and Exercise of Rights

      • A single or partial exercise or waiver by a party of a right relating to the Contract does not prevent any other exercise of that right or the exercise of any other right.
      • A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

    • Rights Cumulative

      Except as expressly stated otherwise in a Contract, the rights of a party under the Contract are cumulative and are in addition to any other rights of that party.

    • Consents

      Except as expressly stated otherwise in a Contract, a party may conditionally or unconditionally give or withhold any consent to be given under the Contract and is not obliged to give its reasons for doing so.

    • Further Steps

      Each party must promptly do whatever any other party reasonably requires of it to give effect to the Contract and to perform its obligations under it.

    • Governing Law and Jurisdiction

      • The Contract is governed by and is to be construed in accordance with the Laws applicable in New South Wales.
      • Each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of New South Wales and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

    • Assignment and Subcontracting

      • Neither party may assign, novate, transfer, or otherwise dispose of any or all of its rights and/or obligations under the Contract without the prior written consent of the other party (which may not be unreasonably withheld).
      • Where Company enters into a sub-contract with any third party for the performance of its obligations under a Contract, any such sub-contract shall not excuse Company from performing its obligations under the Contract and Company shall be liable for the acts and omissions of any sub-Company as if such acts and omissions were those of Company itself.
      • Any purported dealing in breach of this clause is of no effect.

    • Counterparts and Electronic Signatures

      • The Contract may consist of a number of counterparts and, if so, the counterparts taken together constitute one and the same Contract.
      • The Contract may be executed in electronic or digital form and scanned to the other Party for the purpose of exchange.

    • Entire Understanding

      • The Contract contains the entire understanding between the parties as to the subject matter of a Contract.
      • The Client makes no representation or warranty to Company except as expressly set out in a Contract.

    • Rights of First Refusal

      For the duration of this Contract, the Company will be offered first right of refusal for additional and future transactions required by the Client at the location at which the Services are to be provided.

    • Force Majeure

      • If Force Majeure prevents either party from fully or partly performing any obligation under a Contract, the affected party’s obligation to perform that obligation is suspended while the Force Majeure continues.
      • In this clause, “Force Majeure” means any act, event, or cause (including a pandemic, lock down or widespread health related cause) but excluding a lack of funds, which is beyond the reasonable control of the affected party.
      • If a Force Majeure continues for 60 days or more, the party which is not affected by the Force Majeure can terminate the Contract by written notice to the other; provided that if the Force Majeure comprises a pandemic or other health related event Contract may not be terminated but only suspended and will revive upon operation of the Force Majeure.