• SERVICES

1. 1. 1. DS reserve the right to refuse any request that DS deem inappropriate, unreasonable or illegal.
      2. DS will commence providing the Services on the Commencement Date and cease providing the Services on the End Date (Service Period).
      3. At the end of the Service Period the parties may agree to continue the Services under these Terms for an additional period. A new agreement will need to be signed.
      4. DS will not provide chemical transport services on the partner’s behalf

• PRICE, INVOICING AND PAYMENT

1. 1. 1. You agree to pay DS the Fees and Expenses (if any) for the Services that you have requested, as set out in the Agreement.  All amounts are stated in Australian dollars. All amounts include Australian GST (where applicable).
      2. The Fees and Services cannot be varied once these Terms has been executed.
      3. You agree to pay our Invoices within the Invoice Terms.  If an Invoice is unpaid for more than sixty (60) days DS will cease to provide the Services to you until DS receive payment of the Invoice.
      4. If invoices are unpaid for thirty (30) days after the payment date, DS have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to DS.

• YOUR OBLIGATIONS AND WARRANTIES

1. you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing DS with the necessary consents, licences and permissions;
2. you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
3. if applicable, you hold a valid ABN or a company identification number depending on your jurisdiction, which has been advised to DS; and
4. if applicable, you are registered for GST or other relevant taxation schemes depending on your jurisdiction.

• OUR INTELLECTUAL PROPERTY

1. 1. The work and materials that DS provide to you in carrying out the Services contains material which is owned by or licensed to DS and is protected by Australian and international laws (Materials).  DS own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
   2. You agree that, as between the client and DS, DS own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
   3. Your use of our Materials does not grant you a licence, or act as a right to use any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
   4. You must not breach our Intellectual Property rights by, including but not limited to:

1. altering or modifying any of the Materials;
2. creating derivative works from the Materials; or
3. Using our Materials for commercial purposes such as onsale to third parties.

1. 1. 1. This clause will survive termination of these Terms.

• CONFIDENTIAL INFORMATION

1. 1. DS, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
   2. You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by DS to you, and not for any other purpose.
   3. These obligations do not apply to Confidential Information that:

1. is authorised to be disclosed;
2. is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
3. is received from a third party, except where there has been a breach of confidence; or
4. must be disclosed by law or by a regulatory authority including under subpoena.

1. 1. 1. This clause will survive termination of these Terms.

• FEEDBACK AND DISPUTE RESOLUTION

1. 1. Your feedback is important to DS. DS seek to resolve your concerns quickly and effectively.  If you have any feedback or questions about the Services, please contact DS.
   2. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

1. The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
2. If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator.  If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator.  The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

1. 1. 1. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

• TERM AND TERMINATION

1. 1. These Terms will begin on the Commencement Date and continue until the End Date, or the date on which these Terms are terminated in accordance with this clause, if earlier.
   2. Either Party may terminate these Terms without cause by providing the other Party with notice, in writing, per the Notice Period.
   3. Either Party may terminate these Terms, if there has been a material breach of these Terms, subject to the dispute resolution procedure in these Terms.
   4. DS may terminate these Terms immediately, at our sole discretion, if:

1. DS consider that a request for the Service is inappropriate, improper, unsafe or unlawful;
2. you fail to provide DS with clear or timely instructions to enable DS to provide the Services;
3. DS consider that our working relationship has broken down including a loss of confidence and trust;
4. you and/or your employees or contractors display unsafe behaviour or refuse to follow our reasonable instructions;  

1. 1. On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
   2. On termination of these Terms, DS agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
   3. On completion of the Services, DS will retain your documents (including copies) as required by law or regulatory requirements.  Your express or implied agreement to these Terms constitutes your authority for DS to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
   4. The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
   5. Delay: Where the provision of Services depends on your information or response, DS have no liability for a failure to perform the Services in the period set out in the Agreement where it is affected by your delay in response, or supply of incomplete or incorrect information.
   6. Warranties: To the extent permitted by law, DS exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. DS expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
   7. Liability: To the extent permitted by law, DS exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:

1. implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
2. the Services being unavailable; and
3. any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services, and the late supply of Services, even if DS were expressly advised of the likelihood of such loss or damage.

1. 1. 1. Limitation: To the extent permitted by law our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the amount recoverable under our professional indemnity and public liability insurance.
      2. This clause will survive termination of these Terms.

• INDEMNITY

1. 1. You are liable for and agree to indemnify, defend and hold DS harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

1. any information that is not accurate, up to date or complete or is misleading or a misrepresentation;  
2. any breach of these Terms;
3. your refusal or inability to proof Works provided to you; and
4. any misuse of the Services from or by you, your employees, contractors or agents.

1. 1. 1. You agree to co-operate with DS (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given DS.
      2. The obligations under this clause will survive termination of these Terms.

• GENERAL

1. 1. 1. Privacy: DS agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines in your jurisdiction.
      2. Publicity: You consent to DS using advertising or publicly announcing that DS have undertaken work for you.
      3. Email: You acknowledge that DS are able to send electronic mail to you and receive electronic mail from you. You release DS from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
      4. Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
      5. Assignment: These Terms are personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
      6. Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
      7. Force Majeure: DS will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If DS are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, DS may terminate our agreement with you by giving you 5 Business Days’ notice in writing.
      8. Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to you at the address in the Agreement.  Our address is set out in the Agreement. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
      9. Jurisdiction & Applicable Law: These terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
      10. Entire Agreement: These terms and any document expressly referred to in them represent the entire agreement between you and DS and supersede any prior agreement, understanding or arrangement between you and DS, whether oral or in writing.

• DEFINITIONS

1. 1. Agreement means the final written agreement entered into between you and DS in relation to the provision of Services.
   2. Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria, Australia.
   3. Commencement Date is set out in the Agreement.
   4. Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to these Terms or otherwise.
   5. Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
   6. End Date is set out in the Agreement.
   7. Fees is set out in the Agreement
   8. Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs (whether or not registered or registrable), any corresponding property rights under the laws of any jurisdiction, discovery, circuit layouts, trade names, trade secrets, secret process, know-how, concept, idea, information, process, data or formula, business names, company names or internet domain names, and any Confidential Information as described in clause 10.4.
   9. Invoice Terms is set out in the Agreement.
   10. Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
   11. Notice Period is set out in the Agreement.
   12. Payment Method is set out in the Agreement
   13. Services is set out in the Agreement.

Unless otherwise defined herein or the context otherwise requires, capitalized terms used in these Terms will have the meanings given to them in the Agreement.

Last update: 22 March 2016

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