Service Terms

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These Service Terms, together with your Service Agreement, contain the terms and conditions of a legally binding agreement (the “Agreement”) between Crew Outsourcing Solutions Pty Ltd (ABN 36 622 431 467) (“Crew”, “we”, “us” or “our”) and the Customer named in the Service Agreement (“Customer” or “you”), for the provision of the Services specified in the Service Agreement.

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See clause 16 for definitions of capitalised terms used in this Agreement.

Services
1. ‍Crew will provide the customer with the Services specified in the Service Agreement, in accordance with this Agreement.
‍Fees
1. The Customer must pay Crew the Fees specified in the Service Agreement for the selected Services, within 14 days after the issue of an invoice by Crew.
2. If the Customer fails to pay the Fees in accordance with this Agreement, Crew may (without limiting any other remedies available to it) immediately suspend access to or defer performance of all or any Services until the outstanding Fees are paid.
3. The Fees may be varied by Crew from time to time during the Term, as part of a general revision of customer Fees by Crew. Crew will provide the Customer notice of any Fee changes. The Customer may reject any fee increase by terminating the Agreement under clause 3(c), otherwise the Customer will be taken to have accepted the fee increase.
4. Crew will be entitled to set off any amount owed to the Customer against any amount payable by the Customer (including, for example, amounts payable as a result of breach of this Agreement by the Customer) at any time in connection with this Agreement.
Agreement duration and termination
1. This Agreement commences on the date of the Customer’s acceptance of these Standard Customer Engagement Terms, following the signing of a Service Agreement by the Customer. Unless otherwise specified in the Service Agreement, the Agreement continues until terminated by written agreement between the Parties or in accordance with this Clause 3.
2. Either Party may terminate this Agreement at any time by giving at least 30 days’ prior written notice of the termination to the other Party.
3. Either Party may terminate this Agreement by written notice to the other Party with immediate effect if the other Party is in breach of this Agreement and fails to remedy the breach within 30 days of receiving notice from the terminating Party requiring it to do so.
4. The termination of this Agreement will not affect clauses 5, 6, 9 and 10 or any other provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination.‍
Modification of Services
1. Crew may make modifications to any of the Services or particular components of a Service from time to time and will use reasonable endeavours to notify the Customer of any material modification.
Intellectual Property
1. Crew Material remains the property of Crew and nothing in this Agreement gives the Customer any Intellectual Property Rights in the Crew Material or any other interest in Intellectual Property Rights of Crew.
2. Customer Material remains the property of the Customer and other than the rights and licences specifically granted to Crew under this Agreement, nothing in this Agreement gives Crew any Intellectual Property Rights in the Customer Material.
3. Subject to paragraph (b) of this clause, the Customer grants to Crew a non-exclusive licence to exercise the Intellectual Property Rights in any Customer Material to the extent required for Crew to provide the Services to the Customer, including to use and modify the Customer Material.
4. The licence granted under paragraph (c) includes the right to sub-license to third parties.
5. If the Customer becomes aware of a third party claim alleging that Crew Material or any other Intellectual Property Rights of Crew infringes the Intellectual Property Rights of that third party, the Customer must:
  1. immediately notify Crew and provide Crew with all information concerning the claim available to the Customer;
  2. permit Crew to conduct the defence or settle the claim (as determined in Crew’s discretion);
  3. provide any reasonable assistance requested by Crew; and
  4. not make any statement or admission in relation to the claim without Crew's prior consent.
Confidential Information
1. 1. Each Party (“the Recipient”) agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other (“the Provider”) provided to or obtained by the Recipient prior to or after entry into this Agreement.
2. The Recipient may use or disclose Confidential Information of the Provide:
  1. to the extent that it is compelled to do so by applicable Law or the order of a court or governmental agency;
  2. to the extent that the information is already in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence;
  3. to the extent that the information is already known by, or rightfully received, or independently developed, by the Recipient free of any obligation of confidence; or
  4. to the extent that the Provider Party has given its prior written consent.
3. If either Party discloses (“the Disclosing Party”) Confidential Information under clause 6(b)(i), the Disclosing Party must ensure that such information is kept confidential by the person to whom it is disclosed and only used for the purposes of performing obligations or exercising rights under this Agreement.
4. Each Party acknowledges that:
  1. the other Party may suffer financial and other loss and damage if there is any unauthorised use or disclosure of the Confidential Information of the other Party, and that monetary damages for a breach of this clause 6 would be an insufficient remedy; and
  2. in addition to any other remedy available at Law or in equity, the other Party is entitled to injunctive relief to prevent or remedy a breach of, and to compel specific performance of this clause 6.‍
Data Breaches‍
1. Each Party (the “Notifying Party”) must notify the other Party of any breach of their data, including any information relating to the other Party, or any obligations under this agreement (each a ‘Data Security Incident’), regardless of whether or not the data breach constitutes a notifiable data breach under the Privacy Act.
2. Once a Data Security Incident has been identified, whether or not the Data Security Incident constitutes a notifiable data breach, the Notifying Party must take all appropriate or necessary remedial action to mitigate any potential loss or interference of data, prevent any further harm and protect the data from further misuse, loss, access or disclosure.
3. If a Data Security Incident constitutes a notifiable data breach and involves data jointly held by both Parties, the Parties will collaborate to manage and control notification of the breach to the OAIC and affected Individual. However, the Party with the most direct relationship or whose data infrastructure is the subject of the Data Security Incident will be responsible for managing the required notification.
4. Once:
  1. a Data Security Incident is contained;
  2. risk of immediate harm is mitigated; and
  3. any required notifications to the OAIC or other Regulatory Authority and affected individuals are issued,
5. The Notifying Party will:
  1. provide to the other Party, upon written request, a final report which specifies the cause of the Data Security Incident, identifies whether that cause and/or the Data Security Incident is a prevailing or system risk, and the corrective actions to be undertaken to prevent a repeat occurrence of the Data Security Incident, including such actions to be incorporated into a prevention plan to the reasonable satisfaction of the other Party.
No Poaching
1. During the term of this Agreement and for aperiod of 12 months after the termination of this Agreement, the Customer must not, directly or indirectly (including through a related body corporate):
  1. employ, solicit for employment or otherwise engage or seek to engage the services of any person who is or was an employee or contractor of Crew or a sub-contractor of Crew during the term of the Agreement, and who is or was involved in the performance of the Services;
  2. induce or attempt to induce any employee or contractor of Crew or a sub-contractor of Crew to terminate his or her employment or other relationship with Crew or the sub-contractor (whether or not such action would result in a breach of contract by such person) or encourage, counsel, persuade or procure that person to do so, unless the Customer has obtained Crew's prior written approval, or the person in question has ceased to be employed or contracted by Crew or the Crew sub-contractor for a period of not less than 12 months.‍
Warranties‍
1. The Customer warrants, and it is a condition of this Agreement, that:
  1. use of the Customer Material by Crew in accordance with this Agreement will not infringe the Intellectual Property Rights of any third Party;
  2. all information provided by the Customer or on the Customer’s behalf to Crew is accurate and is not, whether by omission of information or otherwise, misleading;
  3. the Customer has not withheld from Crew any information that could reasonably be expected to be material to the decision of Crew to enter into this Agreement;
  4. the Customer has all necessary consents required under Privacy Laws to provide Crew with any Personal Information which forms part of the Customer Data or other Customer Material and permit Crew to use any Personal Information which forms part of the Customer Data or other Customer Material as required to provide the Services.
  5. To enable Crew to meet its obligations under the Agreement, the Customer will ensure that Crew has all necessary information, including relevant underlying documents and third Party systems access including and not limited to third Party authorisation required by Crew to perform the Services.
2. Crew warrants that the Services will be performed:
  1. in accordance with Law and this Agreement;
  2. with reasonable care and diligence;
  3. in accordance with any reasonable instructions and directions given by the Customer from time to time; and,
  4. will be suitable for the Customer’s intended purpose.
  5. The Parties acknowledge and agree that they will not engage in any conduct which will cause the other Party to breach any Law.‍
Limitation of liability‍
1. To the maximum extent permitted by law, Crew excludes all liability for any loss, damage, cost or expense (including consequential, indirect or special loss, loss of profits, loss of opportunity, loss of data or damage to reputation) suffered or incurred by the Customer or any third party in connection with this Agreement, however caused (including by the negligence of Crew), and whether arising in contract, tort (including negligence), statute or otherwise.
2. Without limiting clause 9(a), Crew will not be liable for any loss, damage, cost or expense arising from:
  1. any act or omission of the Customer or its personnel;
  2. any delay, interruption or unavailability of the Services; or
  3. any reliance by the customer on information, advice or recommendations provided by Crew.
3. Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited by law, including any non-excludable rights under the Australian Consumer Law or equivalent legislation in any other jurisdiction.
4. Where any law implies a guarantee, warranty or condition into this Agreement which cannot be excluded, Crew’s liability for breach of that guarantee, warranty or condition is limited, at Crew’s option, to:
  1. in the case of goods — replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
  2. in the case of services — supplying the services again or paying the cost of having the services supplied again.
5. This clause 9 survives the termination or expiry of this Agreement.‍
Indemnities‍
1. The Customer indemnifies and must keep indemnified Crew, its related bodies corporate, and each of their officers, employees, contractors and agents (together, the Indemnified Parties) from and against any and all actions, suits, claims, demands, losses, damages, liabilities, fines, penalties, costs and expenses (including legal costs on a full indemnity basis) arising out of or in connection with:
  1. any breach of this Agreement by the Customer or its personnel;
  2. any negligent, unlawful, dishonest, fraudulent or wilful act or omission by the Customer or its personnel;
  3. any infringement or alleged infringement of a third party’s intellectual property rights by the Customer or its personnel;
  4. any claim by a third party (including any employee, contractor or agent of the Customer) arising from or in connection with the Services; and
  5. any act or omission of the Customer or its personnel that results in a fine, penalty, investigation or enforcement action by a government agency.
2. This indemnity is a continuing, irrevocable and unconditional obligation, independent of the Customer’s other obligations under this Agreement, and survives termination or expiry of this Agreement.
3. It is not necessary for Crew to incur expense, make payment, or prove loss before enforcing a right of indemnity under this clause.‍
Force majeure
1. Crew will not be in breach of this Agreement as a result of, or liable for, any failure or delay in the performance of Crew’s obligations under this Agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Customer.‍
Dispute Resolution‍
1. The Parties agree that if any dispute arises out of or in connection with this Agreement (“Dispute”), the Parties will first meet promptly to try to resolve the Dispute by negotiation. If the Parties do not resolve the Dispute by negotiation within a reasonable period of time, the Party raising the Dispute may refer it to mediation by an accredited mediator they agree on (and absent agreement by a mediator appointed by the Resolution Institute). Neither Party may commence any court proceedings in relation to a Dispute until it has exhausted the dispute resolution procedure in this clause, unless the Party is seeking injunctive or other interlocutory relief in connection with the Dispute.‍
GST‍
1. Any words or expressions used in this Clause 13 and not defined in clause 15 have the meaning (if any) given to them in the GST Act.
2. Unless otherwise expressly stated in this Agreement, the consideration for a supply made under or in connection with this Agreement does not include GST.
3. If a supply made under or in connection with this Agreement is a taxable supply, then at or before the time the consideration for the supply is payable:
  1. the recipient must pay the supplier an amount equal to the GST for the supply (in addition to the consideration otherwise payable under this Agreement for that supply); and
  2. the supplier must give the recipient a tax invoice for the supply.
4. The GST payable under paragraph (c) is to be correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the supply for which the supplier is liable, however caused.
5. If either Party has the right to be reimbursed or indemnified by another Party for a cost incurred in connection with this Agreement, that reimbursement or indemnity excludes any GST component of that cost for which an input tax credit may be claimed by the Party being reimbursed or indemnified, or by its representative member or other similar person entitled to the input tax credit (if any).‍
General‍
1. This Agreement is governed by the Law in force in New South Wales, Australia.
2. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and courts competent to hear appeals from those courts.
3. The Customer Representative will represent the Customer for the day to day purposes of this Agreement.
4. The Customer may not assign, in whole or part, or novate or otherwise transfer the Customer’s rights or obligations under this Agreement without the prior written consent of Crew, which will not be unreasonably withheld.
5. Crew may assign its rights and interest under this Agreement.
6. Time is not of the essence in the performance of obligations under this Agreement except in relation to payment obligations.
7. The Parties are independent contractors. This Agreement is not intended and will not be taken to constitute any partnership, agency, trust or joint venture relationship between the Parties.
8. If any provision of this Agreement is void or otherwise unenforceable for any reason, that provision will be severed and the remainder will be read and construed as if the severed provision had not been included.
9. Any notice or approval required or contemplated by this Agreement must be in writing and delivered, posted or e-mailed to the other Party at the address provided for them in the Service Agreement, which address may be updated from time to time by written notice to the other Party.
10. Any variation or amendment to this Agreement must be in writing and executed by the Parties, except for the variations specified in Clauses 2(c) and 4.
11. This Agreement represents the Parties’ entire agreement and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
12. Crew may sub-contract the performance of all or any part of Crew’s obligations under this Agreement.
13. A right under this Agreement may only be waived in writing signed by the Party granting the waiver, and is effective only to the extent specifically set out in the waiver.
14. Without limiting any other remedy available to Crew, if the Customer fails to pay any amount payable under this Agreement, the Customer must pay Interest on that amount to Crew on demand.
15. The Customer must comply with all applicable Laws in connection with the receipt and use of the Services.‍
Definitions‍‍
1. Agreement means these Service Terms together with the Service Agreement entered into between the Customer and Crew.‍
2. Confidential Information of a Party means the terms of this Agreement and any information:
  1. relating to the business or affairs of that Party;
  2. relating to the customers, clients, employees, contractors or sub-contractors of, or other persons doing business with, that Party;
  3. which is by its nature confidential;
  4. which is designated as confidential by that Party; or
  5. which the other Party knows or ought to know is confidential,
  6. and includes all trade secrets, knowhow, financial information and other commercially valuable information of that Party, and in the case of Crew, includes the Crew Material, and in the case of the Customer, includes the Customer Material.‍
3. Consequential Loss for the purpose of clause 9(d), means indirect loss, loss of revenues, loss of reputation, consequential loss, loss of profits, loss of bargain, loss of actual or anticipated savings, loss of opportunities and loss or corruption of data.‍‍
4. ‍Customer Data means any data provided by the Customer to Crew or input by Customer into the Services.‍
5. Customer Material means the Customer Data and any material provided by or to which access is given by the Customer to Crew for the purposes of this Agreement, including documents, reports, technical information, plans, calculations, schedules and data stored by any means.‍
6. Customer Representative means the Customer representative specified in the Service Agreement, or any replacement notified in writing by the Customer to Crew.‍
7. Fees means the fees as set out in the Agreement.‍
8. Force Majeure Event means any occurrence or extraordinary condition or state of affairs outside a Party’s control, including but not limited to a natural disaster, epidemic or quarantine restriction, a prohibition or restraint by government order, a Law taking effect after the date of this Agreement, a disruption to or unavailability of the internet, a labour dispute, or the failure of a third Party service provider to Crew to provide services, including hosting services.‍
9. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other legislation or regulation which imposes, levies, implements or varies a goods and services tax.‍
10. Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, trade or business or company name, indication of source or appellation of origin or other proprietary right, or right of registration of such rights.‍
11. Interest means interest on any payment owing under this Agreement, calculated at the rate which is 5% in excess of the published Reserve Bank of Australia cash target rate from time to time (or, if lower, the maximum rate permitted by applicable Law), daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant interest.‍
12. Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-Law, present or future, and whether state, federal or otherwise.‍
13. OAIC means the Office of the Australian Information Commissioner.‍
14. Party means a Party to this Agreement and Parties means both of them.‍
15. Personal Information means information or an opinion (including information or an opinion forming part of a database), whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.‍
16. Privacy Act means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.‍
17. Privacy Laws means the Privacy Act, the Australian Privacy Principles, and all other applicable Laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the use, disclosure or possession of Personal Information.‍
18. Services means all services as specified in the Agreement.‍
19. Service Agreement means the Service Agreement entered into and executed by the Customer that sets out the Services, the terms of service, conditions, and obligations of both the Customer and Crew
20. ‍Crew Material means any material provided by or to which access is given by Crew to the Customer for the purposes of this Agreement, including documents, reports, technical information, studies, plans, calculations, schedules and data stored by any means, excluding Customer Data.‍
Interpretation‍
1. a reference to any Party includes that Party’s administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
2. a reference to any document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
3. a reference to any statute or to any statutory provision includes any statutory modification or re‑enactment of it or any statutory provision substituted for it, and all ordinances, by-Laws, regulations, rules and statutory instruments (however described) issued under it;
4. words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
5. references to Parties, clauses, schedules, exhibits or annexures are references to Parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, appendix, exhibit or annexure to this Agreement;
6. where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
7. the word including or words of like meaning are not words of limitation;
8. a reference to $ or dollar is to Australian currency; and
9. in the event of an inconsistency or conflict between the documents constituting this Agreement, the documents shall rank in the following order of priority (with document (i) being the highest in priority, etc.):
  1. the Service Agreement;
  2. any other documents attached to the Service Agreement;
  3. these Service Terms;
  4. other documents attached to or specifically incorporated by reference into this Agreement.