1. Definitions

In these Terms:

• Act – means the Residential Tenancies Act 1997 (Vic).
• Applicable Laws – includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by law whether commonwealth, state, territorial or local, industry standards, codes of practice and guidelines, as relevant, and includes the Act, the Regulations and the Building Act and Building Regulations.
• Australian Consumer Law – of the Competition and Consumer Act 2010 (Cth).
• Building Act – means the Building Act 1993 (Vic).
• Building Regulations – means the Building Regulations 2018 (Vic).
• Business Day – means day on which trading banks are open for business in Melbourne excluding a Saturday, Sunday or public holiday in that city.
• Commencement Date – means the date set out in the Invoice.
• Confidential Information – means any information or data that is by its nature confidential or is designated by a party as confidential, and which is disclosed, made available, communicated or delivered to a party to the other party (or any of its employees, officers, agents or contractors) directly or indirectly in connection with these Terms and includes drawings, reports, inspection reports, specifications, certificate and other documents provided by our Personnel, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Services and Think Compliance’s business, but excludes any information that is in or becomes part of the public domain otherwise than through a breach of these Terms.
• Consequential Loss – means any special, indirect or consequential loss, including but not limited to loss of profits, loss of business, loss of revenue, use, expectation or opportunity, wasted expenditure, lost production, loss of reputation, loss of goodwill or similar losses, howsoever arising and whether or not in the reasonable contemplation of the parties.
• Consumer – has the meaning given to that term in the Australian Consumer Law.
• Consumer Guarantee – means any statutory guarantee provided to Consumers under Division 1 of Part 3-2 of the Australian Consumer Law.
• Details – means the “Details” set out in the Invoice.
• Deliverables – means the deliverables set out in the Invoice.
• Electrical Safety Check – means an electrical safety check as defined in the Regulations, as amended from time to time.
• Expenses – means costs and expenses, which are incurred for and in connection with any of the Services, including for parts and materials, whether by us or our Personnel.
• Extended Period – means the period of time specified in the Invoice.
• Fees – means the fees payable for the Services as set out in the Invoice, and includes both the One-off Fees and Subscription Fees.
• Gas Safety Check – means a gas safety check as defined in the Regulations, as amended from time to time.
• GST – means any goods and services tax and any replacement or similar tax.
• GST Law – has the meaning given to that term in the A New Tax System Goods and Services Act 1999 (Cth).
• Initial Period – means the period of time specified in the Invoice.
• Insolvency Event – means the happening of any of these events:

(a) a party suspends payment of its debts generally, is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(b) a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(c) receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
(d) a party goes bankrupt; or
(e) a party ceases, or threatens to cease, to carry on a business.

• Intellectual Property Rights – means:

(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist;
(c) Confidential Information;
(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
(e) proprietary rights under the Circuit Layouts Act 1989 (Cth).

• One-off Services – means a one-off request for Services selected in the Invoice and provided in accordance with this agreement.
• One-off Fee – means the one-off fee payable for the One-off Services selected in the Invoice.
• Personnel – means any officer, employee, agent, representative, director, contractor or subcontractor of Think Compliance Pty Ltd.
• Premises – means the address (or addresses as the case may be) set out in the Invoice.
• Regulations – means the Residential Tenancies Regulations 2021 (Vic).
• Invoices – mean all Invoices attached to these Terms.
• Smoke Alarm Safety Check – means smoke alarm safety activities as set out in the Regulations, as amended from time to time.
• Services – means the services set out in the Invoice, and includes both the One-off Services and Subscription Services.
• Subscription Services – means a subscription for the Services selected in the Invoice and provided in accordance with this agreement.
• Subscription Fee – means the subscription fee payable for the Subscription Services as selected in the Invoice.
• Terms – mean these terms and conditions and the Invoices.
• Think Compliance, we, us or our – means Think Compliance Pty Ltd ACN 654 245 995, ABN 52 654 245 995.
• Urgent Repairs – means urgent repairs as defined in the Act.
• you, your – means the party set out in the cover sheet and execution page to this agreement.

2. Our agreement

(a) These Terms constitute the agreement between you and us relating to the supply of Services to you.
(b) Acceptance by you of these Terms, as amended from time to time in accordance with these Terms, may be by any of the following ways (as applicable):

(i) by signing and returning a copy of these Terms;
(ii) by confirming acceptance by email or facsimile these Terms;
(iii) by request in writing to us, including by email;
(iv) by performing an act that is done with the intention of adopting or accepting these Terms, including directing or confirming Services to proceed or requesting Services after receiving these Terms; or
(v) by oral acceptance.

3. Duration

(a) These Terms commence on the Commencement Date and, subject to clause 3(b) or early termination in accordance with its terms, will remain in force for the Initial Term.
(b) These Terms will automatically continue for the Extended Term unless either party provides the other party with at least 30 days’ prior written notice of its intention to terminate before the end of the Initial Term.
(c) If the Initial Term of these Terms is extended in accordance with clause 3(b), these Terms shall continue for the duration of the Extended Term commencing on the expiry of the Initial Term.

4. Services

(a) We will provide or procure the Services (in our discretion) to you in accordance with these Terms.
(b) You agree that the provision of Services under these Terms is a non-exclusive arrangement and that we may provide services the same or similar to the Services to any other clients, or enter into arrangements or agreements similar or the same as these Terms with any other person or entity.

5. Our Obligations

We agree to use best endeavours to ensure the Services:

(a) comply with all Applicable Laws that apply to the provision of the Services;
(b) are delivered by Personnel who hold all necessary licences, approvals, permits and authorisations in relation to the performance of the Services;
(c) and that our Personnel have appropriate qualifications to ensure the adequate delivery of Services.

6. Your Obligations

(a) You must make available to us and provide us (in a prompt and timely manner) with any relevant information (including details of your real estate agent), instructions and material that we request to enable us to perform the Services.
(b) You must provide us with access to the Premises to perform the Services and must inform the tenant or other occupier of the Premises of our attendance prior to our access to those Premises.
(c) You acknowledge and agree that our ability to provide the Services will depend on the quality, detail, accuracy and correctness of all information that you provide to us.
(d) You agree and acknowledge that:

(i) we are not liable to you, and you will indemnify us, for any delay in the provision of the Services as a result of your failure to provide relevant information and access to the relevant Premises or equipment in accordance with our requests;
(ii) nothing in these Terms limits your liability under the Act or Regulations;
(iii) you are not delegating your authority or obligations as landlord, residential rental provider or under the Act or Regulations;
(iv) any record provided to you for and in connection with the Services by us or our Personnel is solely for you and your use and may not be used or relied upon by anyone else;
(v) it is your sole responsibility and liability to ensure that the findings and any recommendations in any record or document or of any deliverable in connection with the Services are acted upon, or to engage an appropriate third party to carry out such recommendations, and to comply with all Applicable Laws.

7. Your Warranties to us

You warrant to us that you:

(a) you are the owner of each of the Premises listed in the Details;
(b) you will inform us immediately if you are not the owner of any of the Premises listed;
(c) you have authority to enter into this agreement and engage us to perform the Services;
(d) you have informed and will inform the tenant or any occupier of the Premises of access we require for the performance of the Services;
(e) you will inform us immediately if you change real estate agents;
(f) you have not relied on any representation ours other than those contained in these Terms;
(g) all information that you provide to us is accurate and complete and that you will provide us with all information relevant which comes to your attention and material to our provision of the Services and/or is within the scope of our requests for information.

8. Payment and Fees and Expenses

(a) In consideration for the provision of the Services, you must pay us the Fees and Expenses.
(b) All Fees and Expenses are in Australian dollars, and unless otherwise expressly stated, exclusive of GST and any other sales, value added or similar tax.
(c) If you have selected Subscription Services:

(i) you authorise us to arrange for the Subscription Fee to be debited from your account;
(ii) we will only arrange for the Subscription Fee to be debited from your account either:

(A) as authorised in the Request and Authority to Debit; or
(B) if we have sent to the address nominated by you in the Request and Authority to Debit, a billing advice which specifies the amount payable by you to us and when it is due;

(iii) if the debit day falls on a day that is not a banking day, we may direct your financial institution to debit your account on the following banking day. If you are unsure about which day your account has or will be debited you should ask your financial institution.

(d) If you have selected Subscription Services, we will send you invoices for Expenses in accordance with details on the invoice. You must pay the Expenses in accordance with the requirements in the invoice.
(e) If you have selected One-off Services, we will send you invoices for the One-off Fees and Expenses in accordance with the details on the invoice. You must pay the One-off Fees and the Expenses in accordance with the requirements in the in the invoice.
(f) In addition to our Fees, you must pay us for any Expenses we incur, or our Personnel incurs, in performing the Services.
(g) You acknowledge and agree that Expenses incurred up to the amounts in accordance with rental law do not require your approval. We will seek your consent prior to incurring additional Expenses if Expenses are likely to be more than those amounts.
(h) Time for payment of our Fees and Expenses is of the essence.
(i) If you do not pay the Fees and Expenses in accordance with this clause 7, we may charge you interest on the unpaid amount at 2% above the average of the most recent corporate reference rate for business overdrafts published by the Commonwealth Bank of Australia.
(j) On each anniversary of the Commencement Date, the Fees may increase by Consumer Price Index (all groups) last published by the Australian Bureau of Statistics before the relevant anniversary of the Commencement Date, up to a maximum of 10%. We will notify you of Fee increases.

9. Direct Debit

(a) It is your responsibility to ensure that there are sufficient clear funds available in your account to allow a debit payment to be made in accordance with the Request and Authority to Debit.

(i) If there are insufficient clear funds in your account to meet a debit payment:
(ii) you may be charged a fee and/or interest by your financial institution;
(iii) you may also incur fees or charges imposed or incurred by us; and
(iv) you must arrange for the debit payment to be made by another method or arrange for sufficient clear funds to be in your account by an agreed time so that we can process the debit payment.

(b) You should check your account statement to verify that the amounts debited from your account are correct.
(c) You should check:

(i) with your financial institution whether direct debiting is available from your account as direct debiting is not available on all accounts offered by financial institutions.
(ii) your account details which you have provided to us are correct by checking them against a recent account statement; and
(iii) with your financial institution before completing the Request and Authority to Debit if you have any queries about how to complete the Request and Authority to Debit.

10. Intellectual Property and Confidential Information

(a) We remain the owner of all Intellectual Property Rights in respect of or in connection with the supply of the Services. By these Terms you assign all right, title and interest in Intellectual Property Rights created in respect of or in connection with our supply of the Services, any must do all things that we reasonably request to confirm your assignment of such Intellectual Property Rights to us.
(b) Nothing in these Terms effects an assignment of any of your Intellectual Property Rights. To the extent that we need to use any of your Intellectual Property Rights to perform our obligations or exercise our rights under these Terms, you grant to us a non-exclusive, non-transferrable, royalty-free licence to use and reproduce those Intellectual Property Rights in Australia for the sole purpose of performing our obligations and exercising our rights under these Terms.
(c) We will keep any information (including your account details) in your Request and Authority to Debit confidential. We will make reasonable efforts to keep any such information that we have about you secure and to ensure that any of our employees or agents who have access to information about you do not make any unauthorised use, modification, reproduction or disclosure of that information.
(d) Neither you nor we will use, disclose any Confidential Information of the other except:

(i) as required by law;
(ii) with prior written consent;
(iii) as required to seek advice from professional advisors (including lawyers, accountants and auditors or in our case, to debt collection or debt recovery agencies in circumstances where you have failed to pay our Fees by their due date);
(iv) where such information is already in the public domain; and
(v) in our case, as reasonably required to perform the Services.

11. Insurance

(a) You must, at your own cost, take out and maintain with a reputable insurer in connection with the provision of our Services:

(i) public liability insurance for a minimum cover of $10 million for each claim (or such other cover we agree in writing); and
(ii) any insurances required by law.

(b) At our request, you must provide us with certificates of currency for any relevant insurance policy and any other documentation necessary to satisfy us that you are complying with your obligations under this clause 11.
(c) We will take out and maintain public liability insurance and other insurances that we are required to procure and maintain at law with a reputable insurer.

12. Disputes

(a) If a dispute arises under or in connection with the Services or these Terms:

(i) you and we must first try to resolve the dispute in good faith between ourselves;
(ii) if the dispute is not resolved within 10 Business Days of the date one of us notified the other of the dispute arising, the dispute may be referred by either of us to mediation administered by the Resolution Institute (Institute);
(iii) any mediation under clause 12(a)(ii) must be conducted in accordance with Institute Mediation Rules;
(iv) the terms of the Institute Mediation Rules are deemed to be incorporated into these Terms; each party must bear its own costs in connection with the mediation, and must share the costs of the mediator and mediation process equally; and
(v) if the dispute is not resolved under clause 12(a)(iii) within 40 Business Days after the date that the dispute was first notified, either party may seek resolution of the dispute before a court.

(b) Except where:

(i) either of us seeks urgent equitable relief from a court; or
(ii) where we seek recovery of money you owe us no party may commence court proceedings without first complying with the provisions of clause 12(a).

13. GST

(a) Words or expressions used in this clause that are defined in the GST Law have the same meaning given to them in the GST Law.
(b) Unless otherwise stated, any amount specified in these Terms as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
(c) If a party makes a taxable supply under these Terms (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
(d) Notwithstanding the foregoing, the Recipient is not obliged under these Terms to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
(e) If an adjustment event arises in relation to a taxable supply made by a Supplier under these Terms, the amount paid or payable by the Recipient pursuant to clause 13(c) will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
(f) If a third party makes a taxable supply and these Terms require a party to these Terms (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
(g) This clause 13 does not merge on completion and will continue to apply after expiration or termination of these Terms.

14. Assignment

You must not transfer all or any part of your rights, interests, obligations or liabilities under these Terms by assignment or by novation, without our prior written consent.

15. Suspension

(a) We may suspend all or any part of the Services:

(i) for reasons of health and safety at a Premises; or
(ii) if you fail to pay our Fees and Expenses by the due date.

(b) In such circumstances, we will not be liable to you for any cost, expense, loss or damage you suffer, including any Consequential Loss. Subject to any other right we have under these Terms (including our right to terminate under clause 17), we will recommence the Services as soon as reasonably practicable once all outstanding Fees and Expenses are paid in full.

16. Force Majeure

(a) We may also suspend all or any part of the Services during any period in which we are (or our Personnel are), prevented or hindered from providing the Services as a result of a circumstance beyond our reasonable control, including but not limited to war, fire, vandalism, acts of terror, strikes, lockouts, epidemics or pandemics, labour shortages, government orders, accidents or breakdowns of plant & equipment (Force Majeure Event).
(b) We will not be liable to you for any cost, expense, loss or damage, including any Consequential Loss, in connection with a suspension of the Services under this clause 16. Subject to any other right we have under these Terms (including our right to terminate under clause 17), we will recommence the Services as soon as reasonably practicable once the Force Majeure Event has ceased.
(c) You must continue to meet your obligations under clause 7 during such periods of suspension in respect of Services already rendered.

17. Termination

(a) We may terminate our agreement with you without cause by providing at least 30 days’ written notice to the you.
(b) If we terminate this agreement under clause 17(a), we will refund to you any unused portion of Fees paid in advance.
(c) You must notify us and our agreement with you will terminate on that notice:

(i) in respect of the Services to a Premises where you have sold or transferred your Premises and you are no longer the owner of that Premises, in which case the agreement is varied to the extent that Premises is no longer subject to the Services;
(ii) if you no longer are the owner of any of the Premises listed in the Details in the Invoice.

(d) Either party may terminate the agreement represented by these Terms by written notice to the other party if:

(i) the other party breaches any of its obligations under these Terms and

(A) the failure is incapable of remedy; or
(B) the breaching party does not remedy the breach within 10 Business Days, after written notice requiring it to be remedied;=

(ii) the other party breaches any of its obligations under these Terms and the failure is not reasonably capable of remedy; or
(iii) the other party suffers an Insolvency Event.

(e) On termination:

(i) unless these Terms expressly provides otherwise, all rights, benefits and appointments granted under these Terms will cease;
(ii) you must pay us:

(A) immediately, all current outstanding invoices for Fees and Expenses; and
(B) within 14 days after delivery to you of a tax invoice, all Fees and Expenses in respect of Services rendered by us up to the date of termination;

(iii) the accrued rights or remedies of either party are not affected.

18. Indemnity

(a) You indemnify us and hold us harmless against any loss, cost (including legal fees on a full indemnity basis), liability, expense (including Expenses), penalty, fine or claim that we may suffer or incur in connection with these Terms and the provision or our Services, including but not limited to:

(i) any act or omission by you;
(ii) injury to or death of any of us, any our Personnel;
(iii) any breach of these Terms by you; or
(iv) your fraud, negligence or wilful misconduct, save to the extent of any act or omission by us.

(b) You agree to indemnify us for all reasonable costs we incur in enforcing our rights against you under these Terms, including where we engage a debt collection agency to recover any outstanding Fees from you.

19. Limitation of liability

a) Subject to clause 19(b):

(i) all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Services;
(ii) our maximum aggregate liability to you under or in connection with these Terms whether in contract, tort, negligence, breach of warranty, strict liability, or any other basis whatsoever is limited to the Fees you have paid us under these Terms in respect of which the claim is made to the extent the claim, loss or liability is not covered by the proceeds of applicable insurance policies;
(iii) if these Terms for the provision of Services are on an ongoing or regular basis exceeding a duration of 12 months, our maximum aggregate liability to you (whether in contract, tort, negligence, breach of warranty, strict liability, or any other basis whatsoever) under or in connection with these Terms or request for Services is limited to the Fees you have paid us in the 12 months preceding the date of the relevant claim, to the extent the claim, loss or liability is not covered by the proceeds of applicable insurance policies; and
(iv) you agree any liability to you is excluded for legal costs and disbursements that you might incur and, without limitation, any Consequential Loss suffered by you under or in connection with these Terms, request for Services and/or the Services.

b) The Australian Consumer Law provides Consumers with a number of protections and Consumer Guarantees that cannot be excluded or limited. These Terms, and in particular the limitations of liability set out in these Terms, are therefore subject to, and will not apply to the extent that they limit or exclude, such protections and Consumer Guarantees applicable to Consumers. However where the Australian Consumer Law permits us to limit the remedies available to us for a breach of a Consumer Guarantee, we hereby limit our remedy to you, at our option, to supplying the Services again or paying the cost of having the Services supplied again.

20. General

(a) These Terms are governed by the laws of the place set out in State of Victoria (Locality). The Courts of the Locality have the non-exclusive jurisdiction to hear all disputes under or in connection with these Terms, request for Services or the Services.
(b) No right under these Terms shall be deemed to be waived, except by written notice signed by the waiving party. A waiver by either party shall not prejudice its right in respect of any subsequent breach of any provision of these Terms or any other right of the other party.
(c) We may subcontract any part or all of the Services under these Terms.
(d) These Terms supersede all previous terms or agreements in respect of its subject matter and embodies the entire agreement between the parties in respect of its subject matter.
(e) A variation of any term of these Terms or request for Services must be in writing and signed by the parties.
(f) Each of the parties are independent contracting parties and nothing in these Terms shall make either party the agent or legal representative of the other or grant either party any authority to assume or create an obligation on behalf of the other. The relationship between the parties is of principal and contractor. These Terms do not create any relationship of employment or partnership between you and us.
(g) Any provision of, or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction. Where a clause in these Terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Terms.
(h) If there is any inconsistency between the these Terms, the Invoices or request for Services then, to the extent necessary to resolve such inconsistency, the documents comprising this agreement will apply in the order appearing in this clause 20(h).
(i) Without limiting or affecting the continued operation of any clause which as a matter of construction is intended to survive the termination of these Terms clauses 6, 7, 10, 11, 12, 13, 14, 15, 18, 16, 17, 19 and 20 survive the termination of these Terms or other request for Services.