1. Definitions

"BVH ” means:

The Intuitive Health Choices Pty Ltd trading as Blackwood Village Health ( ABN 65 093 314 919 ), its successors and assigns or any person acting on behalf of and with the authority of BVH.

"Client ” means:

a. The legal entity or person receiving services from BVH;

b. The party contracting to being supplied the Goods or Services in this agreement;

c. Any person who signs this agreement and or makes an online booking on behalf of another person or legal entity;

d. Any person named and described as the Client, or any person purporting to be the named and described Client;

e. The executors, representatives, administrators and/or assigns of any person deemed to be a Client; and

f. Any person/s buying the Service or Services as specified in any invoice, quote, document, or order, and if there is more than one, Client is a reference to each Client jointly and severally and includes patients.

“ Online Booking ” means:

A booking made by the Client through BVH’s website from time to time requesting services from BVH.

“Order” means:

Each tax invoice, online booking, quotation, consent to treatment, or Order or other document provided by BVH to the Client which describes the service, goods, or work to be undertaken by BVH to the Client, and includes any variations made by BVH.

“ Service ” means:

All Goods, Services, Materials, Advice, Treatment and Works supplied by BVH to the Client, and selected by the Client during an online booking, on a consent to treatment or consent to procedures form, at the Client’s request from time to time (where the context so permits the terms Goods, Services, Materials shall be interchangeable with each other and the following:

• Chiropractic Services;
• Massage Services;
• Cupping;
• Moxibustion;
• Tui-Na Massage;
• Healthy Ageing Services; and
• Acupuncture Services.

“ Goods ” includes:

Any goods, supplements, plant, product or material required to undertake the Services, including those goods described in a quote, invoice, proposal, variation, or Order provided by BVH to the Client.

“ Price ” means:

The Price payable for the Service as agreed between BVH and the Client in accordance with clause 5.

“Site ” means:

The designated place, address, premises or location at which services are provided by BVH to the client

“ GST” has the meaning in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Laws” means:

All state and federal statutes and regulations and all other requirements of any statutory authority having jurisdiction over the Services.

“Notice” includes:

Any approvals, consents, instructions, orders, directions, statements, requests and certificates or other communications that may be given, or are required to be given, under this Agreement. If a notice delivered by hand, email or sent by facsimile is delivered or sent (as the case may be) after 5pm on any day, the notice will be deemed to have been received at the commencement of business on the next Business Day.

“Force Majeure” means:

An event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:

• Riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition, or compulsory acquisition by any governmental or competent authority;
• Ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
• Pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
• An act of God, pandemic, epidemic, earthquakes, flood, fire, lightning, storm, explosion, celestial events, solar flare, electromagnetic pulse, coronal mass ejection or other physical or natural disaster;
• Strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the service or this contract; and
• Strike, lockout or other interference with work, blockade, disturbance, governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licenses authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected (force majeure).



2. Interpretation

a. Any reference to any person includes that person’s executors, administrators, agents, assigns or, being a company, its successors or permitted assigns;

b. Words importing the singular shall include the plural and vice versa;

c. Words importing any gender include all genders;

d. Words that mean people will also include companies, corporate bodies and unincorporated bodies;

e. Periods of Time expressed in days do not include Saturdays, Sundays, rostered days off, the industry shut down period and public holidays;

f. Any reference in this agreement to a statutory provision shall include any subordinate legislation made from time to time;

g. References in this agreement to statutory provisions shall be interpreted to mean references to those provisions as respectively amended or re-enacted prior to but not after the date of this agreement;

h. BVH accepts no liability for the consequences of any changes in any law which may affect the Services;

i. Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this agreement;

j. A reference to a schedule is to a schedule to this agreement; a reference to a part, clause or other sub-clause is a reference to a part, clause or other sub-clause in this agreement; and

k. In this agreement the words “includes”, “including” or “such as” are not words of limitation, and when introducing an example, do not limit the meaning of the words to which the example relates to examples of a similar kind.




3. Acceptance and Basis of Contract

• Any legal entity or person signing these Conditions on behalf of the Client hereby covenants that he or she has the authority to sign on behalf of and bind the Client to these Conditions.
• The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all services provided under this agreement and to indemnify BVH against any claim in relation to the services or undertaking of any services and the provision of any related Services by BVH except where such claim has arisen due to the negligence of BVH.
• This agreement may only be amended with BVH consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and BVH.

If:

a. the Client requests a variation (requiring written details from the Client);

b. an unforeseeable problem occurs or is discovered, requiring a variation; or

c. a variation is made BVH will give the Client a written variation document detailing the Service, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.

e. Every online booking is an estimate only and is subject to withdrawal, correction or alteration at any time prior to BVH’s acceptance of the online booking or order.

f. Services will be performed by BVH during business hours from time to time unless otherwise stated in the Client’s Order. Prices are quoted on the basis that works will be performed during business hours referred to in the clause.

g. Services required by the Client or otherwise necessitated outside of these hours, may increase the quoted price and be subject to afterhours rates.

h. The Client consents to receiving treatment from BVH and has signed and returned a consent to treatment or consent to procedures form to BVH and that BVH has explained and warned the Client of risks associated with the Services




4. Change in Control

a. Where the Client is a business or company, the Client shall give BVH not less than seven (7) days’ prior written notice of any proposed change of Ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone numbers, email addresses or business practice).

b. The Client shall be liable for any loss incurred by BVH as a result of the Client’s failure to comply with this clause.



5. Price and Payment

a. At BVH’s sole discretion, the Price shall be either:

• as indicated by the quote provided by BVH’s Quote Agreement, online booking, or other ancillary document, valid for the period stated in the quotation or otherwise for a period of thirty (30) days;
• on any invoice provided by BVH to the Client;
• BVH’s hourly rate; or
• The price specified during the online booking.

b. BVH reserves the right to change the Price if a variation to BVH’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Service (including, but not limited to, any increases to BVH in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties).

c. Time for payment for the Service being of the essence, the Price will be payable by the Client, in full, upon completion of the Service (whichever is later). At BVH’s sole discretion, time for payment may alternatively be:

• 7 days from the date of any invoice provided;
• Payments by weekly instalments may be required where any service requires two (2) or more attendances by the Client;
• failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by BVH.

d. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price) or by any other method as agreed to between the Client and BVH.

e. Receipt by BVH of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then BVH’s rights and Ownership in relation to the Service, and this agreement, shall continue.

f. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to BVH an amount equal to any GST BVH must pay for any supply by BVH under this or any other agreement for the sale of the Service. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

g. BVH and the Client agree that the terms of this Agreement will not be finalised until:

• the Client has paid BVH all amounts owing to BVH; and
• the Client has met all of its other obligations to BVH.
h. Where the Client pays for BVH’s Service with private health insurance or Medicare, the Client warrants it uses its own policy of insurance and has sufficient coverage to afford BVH’s fees. Where the Client’s health insurance or Medicare coverage is insufficient to pay for BVH’s fees, BVH may refuse Services to the Client unless the Client is able to pay to BVH such fee for its Services in advance.



6. Undertaking service

a. Service is taken to have occurred at the time that:

• BVH undertakes the Service at the BVH’s premises, either in full or in part over one or more days; or
• Any other method of service occurring, as agreed in writing by the parties to this agreement.

b. The time, date and location for Service is to be agreed between the parties. If the Client is unable to receive Service as arranged then BVH shall be entitled to charge a reasonable fee for rescheduling, late attendance or nonattendance.

c. BVH may undertake the Service in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

d. Any time or date given by BVH to the Client is subject to change. BVH will not be liable for any loss or damage incurred by the Client as a result of Service being late.




7. Risk

a. Any advice, recommendation, information, assistance or service provided by BVH in relation to Goods or Services supplied is given in good faith, is based on BVH own knowledge and experience and shall be accepted without liability on the part of BVH and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Service.

b. Where BVH gives advice or recommendations to the Client, or their agent, regarding the suitability of Goods, and such advice or recommendations are not acted upon by the Client, BVH shall not be liable in any way whatsoever for any damages or losses that occur and any warranties, resupply or defects clauses will be revoked.

c. The Client has read, understands and agrees with the conditions of BVH’s consent to procedures or any other consent to treatment provided by BVH to the Client.

d. The Client understands the relevant risks factors associated with Chiropractic or Osteopathic treatment or Services provided by BVH to the Client at the Client’s request. n relation to it.

e. The Client agrees that BVH has advised the Client of risks associated with the treatment, including that:

• In a minority of cases the treatment or Services provided by BVH may not be successful and the Client will remain in the same condition;
Although uncommon, the treatment or Service may make the Client’s condition worse, including that:

i. In the case of treatment to the spine and pelvis, temporary soreness may occur in 1 in 3 patients; strains and sprains to the muscles, ligaments and other soft tissues occur but are uncommon; rupture to discs between the spinal vertebrae are uncommon but in these cases nerve pain can ensue with radiation of pain into the arms, trunk or legs and in rare instances this can cause permanent disabling pain and weakness in an arm or leg, and in very rare instances bowel, bladder and penis erectile function can be impaired; or fracture to the ribs

ii. In the case of manipulation or adjustment to the neck, injury to arteries in the neck. These very rare events (approximately 1:100,000 patients to 1:400,000 manipulations) but if they occur they have been known to cause stroke sometimes with serious injury such as quadriplegia or death.




8. Compliance with Laws and Safety Standards

a. The Client and BVH shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any directions in relation to Covid-19 and any work health and safety (WHS) laws relating to the relevant industry and any other relevant standards or legislation.




9. Instructions

a. BVH shall be entitled to rely on the accuracy of any instructions and other information provided by the Client.

b. If the giving of a quotation for the supply of Service involves the Client estimating measurements or quantities, it shall be the responsibility of the Client to verify the accuracy of the Client’s estimates in the preparation of quotes and proposals.

c. BVH reserves the rights to make changes to the estimates after the agreement has been signed to comply with regulations and requirements for providing the Services, such charges constitute a variation.

d. All information, specifications and samples provided by BVH in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the services provided to the Client’s use of the Goods or Services will not entitle the Client to reject the Goods or Services upon Delivery or Installation, or to make any claim in respect of them.




10. Timing & Late Attendance Policy

a. If the client is late to their online booking, the scheduled booking end time will remain the same.

b. The Client may request BVH to extend the booking session. Such extension will be a variation and be provided to the Client in writing before BVH consents to extending a scheduled booking.

c. The Client acknowledges that booking times are limited and scheduled on a first come first serve basis and that BVH may not be able to accommodate a request for an extended booking.

d. If the Client is late and requests to extend the service BVH will make attempts to accommodate, however this may not be possible due to other bookings.

e. Additional hours of service are subject to a variation.

f. If the Client(s) misses their booking entirely or provide less than 24 hours of notice to reschedule, the client will be charged a $100.00 rescheduling fee at BVH’s sole discretion.

g. If the Client fails to attend two (2) sessions, the client forfeits any deposit and incurs an administrative fee of $100.00.




11. Intellectual Property

a. Where BVH has designed, drawn, written plans or a schedule or developed a Service for the Client, or created any products for the Client, then the copyright in any designs, drawings, plans, schedules, products and documents shall remain vested in BVH, and shall only be used by the Client at BVH discretion.

b. The Client warrants that all designs, specifications or instructions given to BVH will not cause BVH to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BVH against any action taken by a third party against BVH in respect of any such infringement.

c. The Client agrees that BVH may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Service which BVH has created for the Client.

d. The Client agrees that BVH may also display the Client’s home, property, company or business name, logo, images or other media as part of BVH and/or other marketing materials relating to BVH’s Website, Social Media and Print Media, except where the Client has explicitly requested that BVH refrains from doing this in writing.




12. Default and Consequences of Default

a. If an invoice remains unpaid for seven (7) days and the client has received three (3) email reminders, BVH will charge the Client an administration fee of $100.00.

b. If the invoice remains unpaid after the reminder has been provided, solicitors or collection agents will be engaged, and the Client agrees to indemnify BVH for any legal and/or collection costs.

c. Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of five percent (5%) per annum pro rata, after as well as before any judgment.

d. If the Client owes BVH any money the Client shall indemnify BVH from and against all costs and disbursements incurred by BVH in recovering the debt (including but not limited to collection fees, legal costs on a solicitor and own client basis, BVH’s contract default fee, Court or any other institution filing fees and bank dishonour fees).

e. Without prejudice to any other remedies BVH may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions BVH may suspend or terminate the supply of Service to the Client. BVH will not be liable to the Client for any loss or damage the Client suffers because BVH has exercised its rights under this clause.

f. Without prejudice to BVH or any other remedies at law, BVH shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BVH shall, whether or not due for payment, become immediately payable if:

• any money payable to BVH becomes overdue, or in BVH’s opinion the Client will be unable to make a payment when it falls due;

• the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

• a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

13. Cancellation

a. BVH may cancel any contract to which these terms and conditions apply or cancel the Service at any time before the Service is supplied or delivered by giving notice to the Client.

b. On giving such notice BVH shall invoice the Client for any work completed up to that point and any materials bought.

c. The Client may cancel any contract to which these terms and conditions apply.

d. In case of cancellation by the Client, the Client agrees to the following fees:

• Less than 2 (2) days – 50% of the deposit;
• On the day – Full cost of the service.

e. BVH reserves the right not to refund any deposit where the Client has cancelled or terminated a contract.

f. In the event that the Client cancels or terminates this agreement, BVH reserves the right to charge an administrative fee of up to $190.00 to the Client.

g. Cancellation or termination shall only be accepted by BVH if provided in writing. The Client shall be liable for any and all loss incurred (whether direct or indirect) By BVH as a direct result of the cancellation (including, but not limited to, any loss of profits).




14. General

a. The failure by BVH to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BVH right to subsequently enforce that provision.

b. These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which BVH has its principal place of business and are subject to the jurisdiction of the courts in that state.

c. Except as otherwise provided for in these terms and conditions, BVH shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach BVH of this Service Agreement (alternatively BVH liability shall be limited to damages which under no circumstances shall exceed the Price).

d. The Client agrees that BVH may amend the Service Agreement at any time. If BVH makes a change to this Service Agreement, then that change will take effect from the date on which BVH notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for BVH to provide Services to the Client.

e. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable.

f. A failure by a party to this agreement to give notice to any other party or to take any steps in exercising any right, or in respect of the breach of or non-compliance with any provision of this agreement, is not to be construed as a waiver of that right, breach or provision nor will any single or partial exercise of any right preclude any other or future exercise of that right or the exercise of any other right, whether in law or otherwise.

g. This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties.

h. Each party must not make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party, or cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so and must take all reasonable steps to prevent its Representatives from doing so. However, this clause shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable and reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

i. Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

j. The obligations of the parties relating to confidentiality, non-disparagement, payment and intellectual property will survive the termination of this agreement.

k. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.

l. Any notices required or permitted to be given pursuant to this Agreement shall be given in writing and shall be delivered:

• In person;
• By certified mail (postage prepaid, return receipt requested);
• By facsimile; or
• By commercial overnight courier that guarantees next day delivery and provides a receipt.

Any notice shall be effective only upon delivery, which for any notice given by facsimile shall mean notice that has been received by the party to whom it is sent as evidenced by confirmation slip.




15. Counterparts & Electronic Exchange

a. This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.

b. Delivery of an executed counterpart of this Contract by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

c. If the Client delivers an executed counterpart of this agreement under clause 15 it must also:

• deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
• in any legal proceedings relating to this agreement, the Client waives the right to raise any defence based upon any such failure.




16. Force Majeure

a. Neither party is responsible for any failure to perform its obligations under this contract, if it is prevented or delayed in performing those obligations by an event of force majeure.

b. Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this contract must immediately notify the other party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfil its or their obligations under the contract.

c. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.




17. No set-off or Deduction

a. All amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).

b. If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.




18. Training & Advice

a. The Client agrees and acknowledges that it has received adequate instructions (including manuals) from BVH regarding the services which may include a demonstration or verbal or written instructions.

b. The Client acknowledges that:

• It has not relied on any service involving skill and judgment, or on any advice recommendation, information or assistance provided by BVH in relation to the goods or services or their use or application; and
• It has not made known, expressly or impliedly, to BVH any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the Client’s use.



19. Marketing

a. The Client grants to BVH the right to take photographs, film, videotape or other images of the Services provided to the Client in BVH’s or the Client’s, and to use, reproduce, publish, edit, modify, dispose of or otherwise deal with those images; and

b. Reproduce and publish the Client’s name and trademarks and disclose the fact that BVH has provided Services or Goods to the Client.




20. Subcontracting

a. BVH may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

b. BVH will endeavour to notify the Client of such license or sub-contracting; however, it is not obliged to do so.

c. Any fees incurred by sub-contractors in relation to services or goods provided to the Client must be paid by the Client according to the terms of this Agreement.

d. BVH makes no assertion to, nor will they be liable for any acts, omissions, or claims regarding the quality of work provided by any licensed or sub-contracted party.




21. Enforceability

a. If any one or more of the provisions contained in this agreement must, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability must not affect any other provisions of this agreement, but this agreement must be construed as if such invalid, illegal or unenforceable provisions had never been contained in this agreement, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated in this agreement to be unreasonable.




22. Novation

a. BVH may transfer, novate, and otherwise deal in any manner with, all or any part of the benefit of this Agreement and any of its rights, remedies, powers, duties and obligations under this Agreement to any person, without the consent of the Client.




23. Assignment upon written consent only

a. Neither party must assign, whether in whole or part, the benefit or any rights orobligations under this agreement, without the prior written consent of the other party.

b. A purported assignment without written consent will be deemed to be void and convey no rights.




24. Advice

a. The Client agrees and acknowledges that it has received adequate instructions from BVH.

b. The Client acknowledges it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by BVH in relation to the goods or services or their use or application.




25. Dispute Resolution

a. If a dispute arises between the parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.

b. Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.

c. If the dispute is not resolved by agreement within five (5) working days of the Second Party receiving the notice referred to in clause 25 above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited.

d. The costs of the mediator must be borne equally between the disputing parties. The chosen mediator must determine the procedures for the mediation.

e. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.

f. If the parties have not mediated a resolution of the dispute within 14 days of the selection of a mediator, neither party must be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.




26. Liability and Indemnity

a. The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold BVH harmless from and against, any and all losses that may be suffered by BVH and which arise, directly or indirectly, in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct in the provision of the Services .

b. Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.




27. Limitation of Liability

a. To the maximum extent permitted by law, BVH and its Representatives expressly:

• (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.

Without limitation to the foregoing, BVH and its Representatives make no representation, and provide no warranty or guarantee, that

• the Client will achieve any particular results from the provision of the Services
• any particular individuals will perform the Services on behalf of BVH; or
• the Services will be:

i. error-free or that errors or defects will be corrected; or

ii. meet the Client's requirements or expectations; and

b. BVH limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against BVH under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the BVH's sole discretion):

• re-supply of the Services
• payment of the costs of supply of the Services by a third party; or
• the refund of any amounts paid by the Client to BVH under this agreement in
respect to the Services,
• even if BVH has been advised of the possibility of such Losses or harm and the Client acknowledges and agrees that BVH holds the benefit of this clause 27 for itself and as agent and trustee for and on behalf of each of its Representatives.




28. Entire Agreement

a. The Contract constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by the Client and BVH in writing.