Terms & Conditions of Supply

SECONDNATURE INTERNATIONAL PTY LTD – TERMS & CONDITIONS OF SUPPLY (SERVICES)

• 1. Interpretation

  The following definitions and rules of interpretation apply in these Conditions.

• 1.1 Definitions:
• Booking: means the Client Sponsor's booking for the delivery of the Services, such booking to be placed in accordance with clause 2.
• Business Day: means a day other than a Saturday, Sunday or public holiday in Sydney, New South Wales, when banks in Sydney are open for business.
• Cancellation Charges: has the meaning set out in clause 6.
• Charges: means the charges payable by the Client Sponsor for the supply of the Services in accordance with clause 5.
• Client Centre: means the online portal that the Client Sponsor must log in to and access in order to place a Booking. The Client Centre can be accessed by the Client Sponsor either via the SecondNature website (https://www.secondnature.com.au/login/) or via a direct link sent by SecondNature to the Client Sponsor.
• Client Sponsor: means the person or firm who purchases Services from SecondNature.
• Client Sponsor Cancellation: has the meaning set out in clause 6.2.
• Client Sponsor Default: has the meaning set out in clause 4.2.
• Conditions: means these terms and conditions as amended from time to time in accordance with clause 11.4.
• Contract: means the contract between SecondNature and the Client Sponsor for the supply of Services in accordance with these Conditions and the relevant Booking, each Contract to come into existence in accordance with clause 2.1.
• Control: means shall be as defined in section 50AA of the Corporations Act 2001 (Cth), and the expression change of control shall be construed accordingly.
• Data Protection Legislation: means:
  • (a) the Privacy Act 1988 (Cth); and
  • (b) any applicable code ("registered APP code") or State or Territory privacy or data protection legislation.
• Deliverables: means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media.
• Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Participant: means any Client Sponsor Personnel who are in direct receipt of the Services delivered by SecondNature (i.e. those Personnel who attend a particular program delivered by SecondNature).
• Personnel: means a party's employees, officers, agents, consultants, contractors, subcontractors or representatives.
• Privacy Policy: means SecondNature's privacy policy which can be found at https://www.secondnature.com.au/privacy-policy/.
• Program Information: means the information provided by SecondNature to the Client Sponsor via the 'Onboarding' section of the Client Centre containing the description and specification of the Services, including details of any Deliverables and the Charges.
• Rescheduling Charge: has the meaning set out in clause 6.5.
• SecondNature: means SecondNature International Pty. Limited, a company incorporated in New South Wales with the ABN 79 131 978 339 whose registered office is at Suite 25 Mona Vale Building, 90 Mona Vale Road, Mona Vale, New South Wales 2103.
• SecondNature Cancellation: has the meaning set out in 6.1.
• Services: means the services, including any Deliverables, supplied by SecondNature to the Client Sponsor, as set out in the Program Information.
• Services Amendment: has the meaning set out in clause 6.4.
• Start Date: means the first day on which the Services relating to a particular Booking are to be delivered by SecondNature.
• 1.2 Interpretation:
  • (a) A reference to legislation or a legislative provision:
    • (i) is a reference to it as it is in force as at the date of this Contract; and
    • (ii) shall include all subordinate legislation made as at the date of this Contract under that legislation or legislative provision.
  • (b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • (c) A reference to writing or written includes email.

• 2. Basis of contract

• 2.1 Each Booking shall be agreed in the following manner:
  • (a) The Client Sponsor shall enquire with SecondNature as to the Services it wishes to purchase.
  • (b) The Client Sponsor shall provide SecondNature with as much information as SecondNature requests in order for SecondNature to ascertain the Services that are suitable for the Client Sponsor.
  • (c) Once SecondNature is satisfied it has the necessary information to deliver the Services, it will provide the Client Sponsor with a recommendation as to the most suitable Services for the Client Sponsor and will discuss this recommendation with the Client Sponsor;
  • (d) The Client Sponsor shall review and consider the information provided by SecondNature within the recommendation and then, if the Client Sponsor is satisfied, the Client Sponsor shall confirm to SecondNature that it would like SecondNature to proceed with the Services;
  • (e) On confirmation from the Client Sponsor, SecondNature will provide the Client Sponsor with a login and password to access the Client Centre in order to review the Program Information;
  • (f) The Client Sponsor shall review the content of the Program Information and (if applicable) request any changes to the Program Information;
  • (g) Once both parties are happy with the Program Information, the Client Sponsor shall confirm its acceptance of these Conditions by ticking the box on the 'Acknowledgement' page of the Client Centre and submitting such acceptance. At the point at which the Client Sponsor's acceptance is submitted, the Booking for Services will be deemed finalised, at which point and on which date the Contract shall come into existence.
• 2.2 Any samples, drawings, descriptive matter or advertising issued by SecondNature, and any descriptions or illustrations contained in SecondNature's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
• 2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client Sponsor seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
• 2.4 Any quotation or recommendation for Services given by SecondNature shall not constitute an offer to deliver such Services, and is only valid for a period of 14 Business Days from its date of issue.

• 3. Supply of Services

• 3.1 SecondNature shall supply the Services to the Client Sponsor in accordance with the Program Information in all material respects.
• 3.2 Subject to clause 4, SecondNature shall use all reasonable endeavours to meet any performance dates specified in the Program Information, but time shall not be of the essence for performance of the Services.
• 3.3 SecondNature reserves the right to amend the Program Information if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and SecondNature shall notify the Client Sponsor in any such event.
• 3.4 SecondNature warrants to the Client Sponsor that the Services will be provided using reasonable care and skill.

• 4. Client Sponsor's obligations

• 4.1 The Client Sponsor shall:
  • (a) ensure that the terms of the Booking and any information provided in the Program Information are complete and accurate;
  • (b) co-operate with SecondNature in all matters relating to the Services;
  • (c) provide SecondNature with such information and materials as SecondNature may reasonably require in order to supply the Services (including without limitation ensuring that the Client Sponsor's Personnel who are participating in the Services complete the 'self-evaluation and intention questionnaire' via the Client Centre prior to the Services being delivered), and ensure that such information is complete and accurate in all material respects;
  • (d) (if applicable) provide SecondNature's Personnel with access to the Client Sponsor's premises, office accommodation and other facilities as reasonably required to allow SecondNature's Personnel to deliver the Services;
  • (e) (if applicable) prepare the Client Sponsor's premises for the supply of the Services (including without limitation ensuring that the list of tasks contained within the preparation checklist on the Client Centre have been completed);
  • (f) obtain and maintain all necessary licences, permissions and consents which may be required to allow SecondNature to effectively and lawfully deliver the Services;
  • (g) comply with any additional obligations as set out in the Program Information.
• 4.2 If SecondNature's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client Sponsor or failure by the Client Sponsor to perform any relevant obligation (Client Sponsor Default):
  • (a) without limiting or affecting any other right or remedy available to it, SecondNature shall have the right to suspend performance of the Services until the Client Sponsor remedies the Client Sponsor Default, and to rely on the Client Sponsor Default to relieve it from the performance of any of its obligations in each case to the extent the Client Sponsor Default prevents or delays SecondNature's performance of any of its obligations;
  • (b) SecondNature shall not be liable for any costs or losses sustained or incurred by the Client Sponsor arising directly or indirectly from SecondNature's failure or delay to perform any of its obligations as set out in this clause 2; and
  • (c) the Client Sponsor shall reimburse SecondNature on written demand for any costs or losses sustained or incurred by SecondNature arising directly or indirectly from the Client Sponsor Default.

• 5. Charges and payment

• 5.1 The Charges for the Services shall be as set out in the Program Information.
• 5.2 SecondNature shall invoice the Client Sponsor at the agreed times or stages as set out in the Program Information.
• 5.3 In consideration of the supply of Services by SecondNature, the Client Sponsor shall pay each invoice submitted by SecondNature:
  • (a) in accordance with the timeframes set out in the Program Information; or
  • (b) if no timeframes are specified within the Program Information, within 14 days of the date of the invoice, each payment to made in full and in cleared funds to a bank account nominated in writing by SecondNature, and time for payment shall be of the essence of the Contract.
• 5.4 All amounts payable by the Client Sponsor under the Contract are exclusive of amounts in respect of Goods and services tax chargeable from time to time (GST). Where any taxable supply for GST purposes is made under the Contract by SecondNature to the Client Sponsor, the Client Sponsor shall, on receipt of a valid GST invoice from SecondNature, pay to SecondNature such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
• 5.5 If the Client Sponsor fails to make a payment due to SecondNature under the Contract by the due date, then, without limiting SecondNature's remedies under clause 10, the Client Sponsor shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• 5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

• 6. Cancellation or re-scheduling of Services

• 6.1 SecondNature may cancel the Services at any time on written notice to the Client Sponsor (SecondNature Cancellation). If SecondNature cancels the Services, SecondNature shall return any of the Charges paid by the Client Sponsor to SecondNature for the relevant Services prior to the point of cancellation for any Services that have not been delivered.
• 6.2 The Client Sponsor may cancel the Services at any time on written notice to SecondNature (Client Sponsor Cancellation). If the Client Sponsor cancels any Services, the Client Sponsor may be liable to:
  • (a) pay SecondNature the Cancellation Charges as specified in clause 6.3 (if applicable); and/or
  • (b) reimburse any costs or losses sustained or incurred by SecondNature (including but not limited to loss of profits and loss of sales or business) arising directly or indirectly from the Client Sponsor cancelling the Services.
• 6.3 Full details of the Cancellation Charges are as follows:
  

  Point of Cancellation	Applicable Cancellation Charge
  If the Client Sponsor cancels 8 – 21 days before the Start Date	45% of the Charges shall be payable by the Client Sponsor
  If the Client Sponsor cancels after the Start Date or up to 7 days before the Start Date	100% of the Charges shall be payable by the Client Sponsor

• 6.4 If SecondNature are unable to provide the Services due to unforeseen circumstances (including but not limited to sickness of SecondNature's Personnel), SecondNature shall have the option to either:
  • (a) provide alternative Personnel to deliver the Services on the agreed dates; or
  • (b) agree alternative dates with the Client Sponsor for delivery of the Services, (Services Amendment). For the avoidance of doubt, if a Services Amendment occurs in accordance with this clause 6.4, this does not constitute a SecondNature Cancellation.
• 6.5 If any Participant, for whatever reason, wishes to reschedule (to an alternative date or time) a scheduled one-to-one coaching session that forms part of a particular program being delivered as part of the Services, SecondNature reserves the right to charge the Client Sponsor a fee of $500 (exclusive of GST) in order to accommodate such rescheduling (Rescheduling Charge). All Rescheduling Charges shall be paid by the Client Sponsor in accordance with clause 5.3. If a Participant swaps a scheduled one-to-one coaching session with another Participant that is also due to attend a one-to-one coaching session as part of the same program being delivered as part of the Services, a Rescheduling Charge will not apply. For the avoidance of doubt, whilst SecondNature will use its reasonable endeavours to comply with any Participant's request to reschedule a one-to-one coaching session, SecondNature is unable to guarantee that it will be able to comply with such request.

• 7. Intellectual property rights

• 7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client Sponsor) shall be owned by SecondNature.
• 7.2 SecondNature grants to the Client Sponsor a fully paid-up, worldwide, non-exclusive, royalty-free perpetual licence to the Client Sponsor solely to allow the Participants to use the Deliverables (excluding materials provided by the Client Sponsor) for the purpose of receiving and using the Services and the Deliverables within the Client Sponsor's business. For the avoidance of doubt, the licence clause 7.2 is granted strictly for the benefit of the Participants and may not be utilised by other personnel within or external to the Client Sponsor's business without the prior written consent of SecondNature.
• 7.3 The Client Sponsor shall not sub-license, assign or otherwise transfer the rights granted in clause 2.
• 7.4 The Client Sponsor grants SecondNature a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client Sponsor to SecondNature for the term of the Contract for the purpose of providing the Services to the Client Sponsor.

• 8. Data protection

• 8.1 The parties shall comply with their respective data protection obligations as set out within the Data Protection Legislation.
• 8.2 Without prejudice to the generality of clause 8.1, SecondNature shall process any personal data provided to it by the Client Sponsor in accordance with SecondNature's Privacy Policy.

• 9. Limitation of liability

• 9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
• 9.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
• 9.3 Nothing in this clause 9 shall limit the Client Sponsor's payment obligations under the Contract.
• 9.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
  • (a) death or personal injury caused by negligence;
  • (b) fraud or fraudulent misrepresentation; and
  • (c) any other liability that cannot be legally limited under the laws of England and Wales.
• 9.5 Subject to clause 2 and clause 9.4, SecondNature's total liability to the Client Sponsor under a Contract shall not exceed the sum of the Charges that have been paid or are payable in relation to the Services in which the liability arose, or the sum of $10,000 (ten thousand dollars), whichever is greater.
• 9.6 Subject to clause 2, clause 9.3 and clause 9.4, this clause 9.6 sets out the types of loss that are wholly excluded:
  • (a) loss of profits;
  • (b) loss of sales or business;
  • (c) loss of agreements or contracts;
  • (d) loss of anticipated savings;
  • (e) loss of use or corruption of software, data or information;
  • (f) loss of or damage to goodwill; and
  • (g) indirect or consequential loss.
• 9.7 Except where otherwise expressly stated in these Conditions, SecondNature excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.
• 9.8 Unless the Client Sponsor notifies SecondNature that it intends to make a claim in respect of an event within the notice period, SecondNature shall have no liability for that event. The notice period for an event shall start on the day on which the Client Sponsor became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
• 9.9 This clause 9 shall survive termination of the Contract.

• 10. Termination and consequences of termination

• 10.1 Without affecting any other right or remedy available to it, SecondNature may terminate the Contract with immediate effect by giving written notice to the Client Sponsor if:
  • (a) the Client Sponsor fails to pay any amount due under the Contract on the due date for payment;
  • (b) the Client Sponsor fails to comply with any of its obligations as set out under the Contract and further to being notified by SecondNature fails to remedy the non-compliance within 7 days of receipt of such notification;
  • (c) the Client Sponsor takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • (d) the Client Sponsor suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • (e) the Client Sponsor's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
• 10.2 Without affecting any other right or remedy available to it, SecondNature may suspend the supply of Services under the Contract or any other contract between the Client Sponsor and SecondNature if:
  • (a) the Client Sponsor fails to pay any amount due under the Contract on the due date for payment;
  • (b) the Client Sponsor becomes subject to any of the events listed in clause 1(c), clause 10.1(d), or clause 10.1(e) or SecondNature reasonably believes that the Client Sponsor is about to become subject to any of them.
• 10.3 On termination of the Contract:
  • (a) the Client Sponsor shall immediately pay to SecondNature all of SecondNature's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SecondNature shall submit an invoice, which shall be payable by the Client Sponsor immediately on receipt;
  • (b) the Client Sponsor shall return any Deliverables which have not been fully paid for. If the Client Sponsor fails to do so, then SecondNature may enter the Client Sponsor's premises and take possession of them. Until they have been returned, the Client Sponsor shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
• 10.4 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of terminatio
• 10.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

• 11. General

• 11.1 Assignment and other dealings.
  • (a) SecondNature may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  • (b) The Client Sponsor shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of SecondNature.
• 11.2 Confidentiality
  • (a) Each party undertakes that it shall not at any time during the Contract, and for a period of [2 (two)] years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2(b).
  • (b) Each party may disclose the other party's confidential information:
    • (i) to its Personnel or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its Personnel to whom it discloses the other party's confidential information comply with this clause 2; and
    • (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • (c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
• 11.3 Entire agreement.
  • (a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • (a) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  • (c) Nothing in this clause shall limit or exclude any liability for fraud.
• 11.4 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• 11.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
• 11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
• 11.7 Notices.
  • (a) Any notice or other communication given to a party under or in connection with the Contract shall be sent by email to:
    • (i) SecondNature: [email protected] and [email protected]; and
    • (ii) Client Sponsor: the address utilised by the Client Sponsor to receive any recommendations or other information related to the Services from SecondNature.
  • (b) Any notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  • (c) This clause 7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
• 11.8 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any third party beneficiary rights.
• 11.9 Governing law and jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of NSW. Each party irrevocably agrees that the courts of NSW shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

August 2022