Rapid Antigen and PCR Testing – Terms & Conditions
The following Terms and Conditions (“Terms”) shall apply to services provided by Bodycare Work Pty Ltd (ACN 634 054 256) trading as Bodycare Workplace Solutions (“Bodycare”) to its clients (“Client”).
- The Client (on behalf of itself and its related bodies corporate) wishes to engage Bodycare to provide Rapid Antigen Screening (RAT) and/or;
- Polymerase Chain Reaction (PCR) collection and testing at the Sites identified in Item 8 of Schedule 1 (the “Services”) for the Term.
- Bodycare agrees to provide the Services on the terms and conditions set out in this Agreement to the Client and its related bodies corporate.
THE PARTIES AGREE:
- DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context requires otherwise:
“Agreement” means this Agreement including the recitals, Schedule and annexure (if any);
“Bill Rate” means the amount of 5%;
“Business Day” means a day which is not a Saturday, Sunday or a public holiday;
“Commencement Date” means the date specified in Item 5 of the Schedule 1;
“Confidential Information” means all technical, commercial, financial or other information (whether oral, written, electronic or in any other form) disclosed by a party during the Term of this Agreement but excluding any information which is at the time of disclosure generally and publicly available or becomes lawfully in a party’s possession wholly independently of the other party;
“Equipment” means the items described in Item 10 of the Schedule 1;
“Fee” means the fee specified in Items 4 and 10 of the Schedule 1;
“Force Majeure Event” means any fire, flood, earthquake, pandemics, elements of nature or acts of God, strikes, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, embargoes and other similar governmental action, or any other similar cause beyond the reasonable control of a party.
“Intellectual Property Rights” means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including rights of any kind in:
a) inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
b) literary works, dramatic works, musical works, artistic works, cinematograph films, television broadcasts, sound broadcasts, published editions of works and any other subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the subject matter, subsist anywhere in the world;
c) registered and unregistered trade marks and service marks, including goodwill in the business concerned in the relevant goods and services;
d) trade, business or company names;
e) internet domain names; and
f) proprietary rights under the Circuit Layouts Act 1989 (Cth),
whether created or in existence before or after the date of these terms and includes any thing, whether tangible or intangible, which incorporates, embodies or is based on any of the things referred to in paragraphs (a) to (f) inclusive of this definition.
“Personnel” means the Health Professionals engaged/employed and provided by Bodycare to deliver or assist in the delivery of the Services, including any persons named in Item 9 of Schedule 1 and other persons as agreed in writing between the parties;
“Services” means the services described in Item 3 of the Schedule 1 and further described in Appendix 1.
“Subscriber Content” means all content and information provided by the Client to Bodycare.
“Term” means the minimum term specified in Item 7 of Schedule 1.
In this Agreement, unless the context requires otherwise:
a) the headings are used for convenience only and do not affect the interpretation of this Agreement;
b) a reference to a document includes the document as modified from time to time and any document replacing it;
c) if this Agreement requires something to be done on a day which is not a Business Day then that thing must be done by the next Business Day;
d) a reference to a person includes a natural person, any body or entity whether incorporated or not, partnership, government authority, any executor, administrator or successor in law of the person;
e) a reference to a party includes that party’s successors and permitted assigns;
f) a reference to dollars or “$” is a reference to Australian currency and all amounts payable by a party under this Agreement are to be paid in their respective currency;
g) a reference to a statute or other law includes regulations and other instruments made under it and includes consolidations, amendments, re-enactments or replacements of any of them.
- BODYCARE’S OBLIGATIONS
2.1 Provide Services
Bodycare will provide the Services to the Client and its related bodies corporate from the Commencement Date on the terms and conditions set out in this Agreement for the Term.
a) Bodycare will provide the Personnel to deliver the Services.
b) Bodycare warrants that:
i) Bodycare and its Personnel at all times will comply with all applicable laws, regulations and standards;
ii) Personnel shall have the necessary qualifications and training to deliver the Services as outlined in Appendix 1 to this Agreement
iii) Personnel shall be health screened by use of the My Occ Health Record Daily Health Screening App each day prior to commencing work on site to detect any risks including temperature or symptoms of COVID-19;
iv) Bodycare and its Personnel will not do any act that could have the potential to risk the reputation of the Client or place the Client’s employees or contractors at risk;
v) Bodycare Personnel will make every reasonable endeavour to foster a relationship of trust and confidence amongst that Client’s employees and management. In the event this does not occur, the Client may, by written notice to Bodycare, object to particular Personnel being engaged to deliver the Services. In the event that the Client does so object, Bodycare will provide alternative Personnel to deliver the Services within a timely manner.
(c) Bodycare is responsible for all acts and omissions of the Personnel as if they were those of Bodycare.
(d) All Bodycare Personnel must attend a Site induction and agree to comply with Site safety requirements and Client directions while on Site.
2.3 General obligations
a) take proper care in providing the Services and ensure that the Services are provided in a reasonable and professional manner;
b) act lawfully;
c) provide the Services in a timely manner;
- THE TERM AND FURTHER TERM/S
a) This Agreement shall continue for the minimum period as set out in Item 7 of Schedule 1.
b) The Client may provide written notice to Bodycare no less than 5 business days prior to the end of the Term notifying Bodycare that it wishes to terminate the Agreement.
c) If no express notice is received in accordance with Clause 3(b), then the Agreement will rollover for a further Term on the same terms and conditions as this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
a) Bodycare shall retain all Intellectual Property Rights in all material (including but not limited to documents drawings, designs, data, know how, software, databases, processes, inventions and discoveries) owned by Bodycare prior to the Commencement Date or in connection with delivery of the Services pursuant to this Agreement, including any modifications or improvements made during the course of the Agreement.
b) The Client acknowledges that the data (including aggregate data, non-personal information and anonymised data) generated by Bodycare arising out of the Services and any suggestions, enhancement requests, recommendations or other feedback provided by the Client to Bodycare in relation to the Services may be used by Bodycare for the purpose of further improving our technology, performing industry analysis or analytics, or otherwise delivering services.
- CLIENT OBLIGATIONS
The Client shall:
a) grant Bodycare and all Personnel access to its premises, equipment and reasonable resources required for delivery of the Services;
b) grant Bodycare permission to discuss and advertise the delivery of the Service to other potential customers for the purposes of its business development including but not limited to online and social media content;
c) appoint a representative who has appropriate authority to manage, facilitate and be the contact person for the delivery of the Services;
d) provide and use reasonable endeavours to ensure their staff provide a high level of co-operation with Bodycare;
e) provide appropriate facilities and resources as required by Bodycare to comply with safe testing protocols;
f) provide access and contact details for the Client’s staff who will receive the Services to sign consents and waiver forms as determined necessary by Bodycare; and
g) provide onsite car parking facilities for the Personnel free of charge. Where this is not possible, any parking costs associated with the provision of Bodycare’s services will be on-costed at the end of month;
h) agree that Bodycare shall provide all necessary Equipment required for delivery of the Services in accordance with the terms and conditions of this Agreement;
i) pay the Fee for the Equipment as specified in Item 10 of the Schedule 1.
- DELIVERY OF SERVICES
a) Bodycare Personnel shall provide the Services in each site during the hours specified in Schedule 1 of this Agreement.
b) In the event that the Client requires Services to be provided outside of the hours referred to in Clause 6(a), additional fees, charges and higher hourly rates may apply pursuant to Item 4 of Schedule 1.
- INVOICING AND FEE
a) The Client agrees to pay Bodycare the Fee during the Term and Further Term/s in accordance with this clause 7.
b) Bodycare will invoice the Client for the Fee on the dates detailed in Item 6 of Schedule 1.
c) The invoice will be site specific and outline the hours provided as well as any additional service costs.
a) The Client will be required to pre-pay the RAT screening in advance.
b) The Client will, within 14 days of invoice date, pay the Fee to Bodycare by electronic transfer to a bank account nominated by Bodycare or by credit card over the phone.
c) Rates are subject to an annual increase on 1 January in accordance with Item 4 of Schedule 1 this Agreement.
d) The Fee is determined in accordance with the duration of the Service delivery in accordance with Item 4 of Schedule 1.
7.3 Late Payment
a) In the event that the Client fails to pay any amount due in accordance with this clause 7, and Bodycare has issued a notice in writing to the Client that the Client has not paid an amount, the Client agrees to pay Bodycare interest on the amount outstanding from the due date for payment until full payment is made. Interest shall be payable at the Bill Rate.
b) In the event of a breach of this Clause 7, Bodycare has the right cease providing the Services immediately.
- LEGAL RELATIONSHIP
The legal relationship between the Client and Bodycare is that of principal and independent contractor. Neither Bodycare nor any of the Personnel is to be deemed to be an employee, agent or partner of the Client.
- LIABILITY AND INDEMNITY
a) Always subject to Clause 9(c), neither party will be liable to each other for any and all liability, loss, harm, damage, cost or expense (include legal fees) that may be incurred or sustained, save that each party (an indemnitor) indemnifies the other Party (indemnitee) for liabilities, losses, damages, costs and expenses (including legal fees) to the extent that they were directly caused by an unlawful or negligent act or omission by the indemnitor.
b) The indemnity given by the indemnitor will be reduced proportionately to the extent that a breach of this Agreement or any unlawful or negligent act or omission by the indemnitee may have contributed to any such liability, loss, harm, damage, cost or expense.
c) Nothing in this clause 9 will render a party liable for any loss of profits, special, indirect or consequential loss or damages (including economic loss and exemplary damages).
d) Nothing in this Agreement operates to limit or exclude liability that cannot by law be limited or excluded.
a) Bodycare will take out and keep current public liability insurance with a minimum amount of $20,000,000 AUD and to a maximum amount of $50,000,000 and professional indemnity insurance to a maximum of $10,000,000 as well as any other insurance required by law to undertake the Services and will produce a certificate of currency to the Client on request.
b) Bodycare shall provide the Client with current Certificates of Insurance in relation to Public Liability, Workers Compensation and any other insurance documentation the Client may require from time to time.
a) In this clause the expressions “consideration”, “GST”, “input tax credit”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the (Goods and Services Tax) Act 1999 (Cth).
b) Unless otherwise expressly stated, all amounts payable or consideration provided under this Agreement are exclusive of GST.
c) If GST is imposed on any supply made under this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on the taxable supply subject to the recipient first receiving a valid tax invoice. The additional amount is payable at the same time as payment is required for the taxable supply under this Agreement.
d) If a party is required under this Agreement to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by the other party, the amount payable by the first party will be the sum of:
- the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
- if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply,
such that after the other party meets the GST liability, it retains the net amount.
a) If either party wishes to terminate this Agreement, they may do so by giving 5 business days’ written notice to the other party.
b) Should either party be in breach of its obligations under this Agreement, the Services may be terminated by the non-defaulting party by giving the defaulting party 7 days’ notice in writing of the breach and stating that if the breach is not remedied, the Agreement may be terminated without further notice.
c) Upon the expiry of the notice period, if the breach has not been remedied, the Agreement shall, at the election of the non-defaulting party within a further 48 hours, be terminated by written notice.
12.2 Obligations on termination
a) If the Client terminates this Agreement under clause 12.1, the Client must pay for the Services provided and products to the date of termination.
b) In the event that the Client terminates this Agreement Bodycare shall not be required to continue providing the Services to the Client after the date of termination.
c) On termination, Bodycare must leave the area of the Site where it performed the Services in a clean and tidy condition.
12.3 Obligations on suspension
In the event that the Services are suspended as a result in accordance with Australian Government requirements, the suspension period will be added on to the remainder of the Term.
- CONFIDENTIALITY AND PRIVACY
13.1 Confidential Information
All Confidential Information obtained by one party from the other party in the course of performing this Agreement will be treated as confidential and will not be disclosed to any third party except as required by law, court order or relevant stock exchange.
13.2 Obligations survive termination
The obligations imposed by this clause survive termination of this Agreement, to the fullest extent permitted by law.
Bodycare must comply with all relevant provisions of the Privacy Act 1988 (Cth) and the Australian Privacy Principles in connection with providing the Services.
14.1 Entire Agreement
This Agreement contains the entire Agreement between the parties and supersedes all prior communications, representations, warranties and undertakings between the parties concerning the subject matter of this Agreement.
14.2 No Variation
This Agreement cannot be varied, unless agreed to in writing and signed by both parties.
Notices under this Agreement may be delivered by prepaid postage, by hand, or by electronic or email transmission to each of the parties at the address set out in the Item 11 of Schedule 1 or such other address as either party may specify by notice in writing to the other. Notices will be deemed to be given:
(a) two (2) days after deposit in the mail with postage prepaid;
(b) when delivered by hand; or
(c) if sent by electronic or email transmission, upon an apparently successful transmission being noted by the sender’s internet service provider,
as the case may be, but any notice or communication which is received on a day which is not a Business Day or after 5.00 pm in the place of receipt, will be deemed to have been received by the recipient at 9.00 am on the next Business Day.
14.4 Governing Law
This Agreement is governed by and construed in accordance with the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
This Agreement may be signed in counterparts and the counterparts when taken together are to be taken to form one document.
14.6 Electronic signatures
Each party authorises the use of electronic or digital signature(s) in this Agreement, agrees to be bound by its respective electronic or digital signature(s) and acknowledges that the other party will rely on its respective electronic or digital signature(s).
Bodycare must not assign or subcontract the Services or any of its rights or obligations under this Agreement without the Client’s prior written consent.
14.8 Force majeure
Neither party will be liable for any failure to perform its obligations under this Agreement where that performance is delayed, prevented, restricted or interfered with as a result of a Force Majeure Event, provided that the Force Majeure Event could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non performing party through the use of alternate sources, workarounds or other means. The party unable to perform its obligations as a result of a Force Majeure Event must notify the other party promptly of any delay referred to this clause 14.8 and use its best efforts to minimise the effect of the Force Majeure Event and resume performance in accordance with this Agreement as soon as possible.
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.
14.9 Cumulative rights
Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law.
14.10 Further assurances
Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising that right, power or remedy. Furthermore, a single or partial exercise of a right, power or remedy does not prevent another or future exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party granting the waiver.
14.12 Survival and merger
a) No term of this Agreement merges on completion of any transaction contemplated by this Agreement.
b) Clauses 1,2,8, 10, 13, 14 survive termination or expiry of this Agreement, together with any other term which by its nature is intended to do so.