Terms & Conditions
THIS AGREEMENT comes into effect when agreed verbally, in writing, and/or by performance
“The Investigator”: Precise Investigation [ABN: 39 101 150 645] of Victoria.
“The Client”: A person or party identified as part of this agreement, a verbal agreement or other written agreement, for whom the Investigator has offered or agreed to supply products and/or services.
A. The Client has requested products or services to be supplied by the Investigator.
B. The Investigator agrees to supply products or services to the Client, subject to the Client’s acceptance of the terms and conditions set out in this Agreement.
C. Unless assigned to another appropriately licensed individual or organisation, investigation services are offered and provided under Vic License Number.
IT IS AGREED AS FOLLOWS
1. DEFINITIONS & INTERPRETATION
Unless contrary intention appears from the context, in this Agreement:
1.1. “Agreement” refers to this document, together with any Schedules, annexures or amendments made in accordance with this Agreement;
1.2. “Confidential Information” refers to information that:
1.2.1. is, by its nature confidential;
1.2.2. is designated as confidential by the Client or the Investigator; or
1.2.3. the Client or the Investigator knows or ought to know is confidential;
1.2.4. and includes, without limitation, the terms of this Agreement and all information about the Client, the Investigator, their respective employees, agents, property, policies and operations which is made available or which becomes known during the term of this Agreement or as a result of executing this Agreement. Instances where information is not covered or referred to as “Confidential” include;
184.108.40.206. where such information was in the public domain at the time of its disclosure; or
220.127.116.11. became part of the public domain after its provision by the Investigator or its creation by the Investigator under this Agreement, otherwise than through a disclosure by the Investigator or party to whom that information has been disclosed.
1.3. “Services” refers to all services to be undertaken by the Investigator under this Agreement, including those listed verbally, in writing or though any other transmission between the Investigator and the Client, and are subject to any amendment as agreed between the Parties in writing;
1.4. “Products” refers to any tangible item sold through the Investigator, produced or distributed in-house or by another third party. Where products are sold, each is sold under the respective terms of the original producer and/or distributor and the Investigator is not liable for any failure, damages or loss of revenue as a direct result of the product(s) in question;
1.5. “Parties” refers to the parties to this Agreement and their respective successors and permitted delegates. “Party” refers to any one of them;
1.6. “Standard Terms” refers to the terms presented in this document, together with those outlined in associated Schedules and any amendments made in accordance with the Deemed Acceptance clause of this Agreement;
1.7. “Term” refers to the date and duration of the Service(s) specified verbally, in writing or through other transmission in regard to the Service(s) supplied by the Investigator;
1.8. “Expenses” refers to debts and costs incurred, payments, purchases and fees paid and monies spent by the Investigator, or where credits in a cashless system are expended in their equivalent cash value, in order to provide products or services;
1.9. “Fee” refers to the amount, in Australian currency and/or the method of calculating that amount, specified verbally, in writing or through other transmission in regard to the Service(s) supplied by the Investigator to the Client.
1.10. “Start Date” refers to the date on which the last Party signs this Agreement;
1.11. “Retainer” refers to any monies paid in advance of the full provision of the Services
1.12. “Half-day” refers to a maximum period of 6 hours and a minimum of 4;
1.13. “Hour” includes part thereof;
1.14. “Remainder” refers to any monies remaining from the Retainer after it having been set against the Fee, the Expenses and any other monies owed to the Investigator, including amounts payable as a result of a breach of this Agreement by the Client;
1.15. “Timetable” refers to the timetable for the undertaking of the Services as set out verbally, in writing or through transmission in reference to the Service(s) or as otherwise agreed by the Parties in writing;
1.16. In this Agreement, the following rules apply, except where the context stipulates otherwise:
1.16.1. the singular includes the plural and, conversely;
1.16.2. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
1.16.3. a reference to a “clause,” “paragraph,” “schedule” or “annexure” is a reference to a clause, paragraph of or schedule or annexure to this Agreement, and a reference to this Agreement includes any schedule or annexure;
1.16.4. a reference to a “document” or “instrument” includes the document or instrument as novated, altered, supplemented or replaced;
1.16.5. a reference to “writing” includes facsimile transmissions as well as any means of reproducing words in a tangible and permanently visible form;
1.16.6. a reference to “monies,” “dollars” or “$” is in reference to Australian currency, unless otherwise specified;
1.16.7. a reference to “time” is to Melbourne, Victoria, Australia time, unless otherwise specified;
1.16.8. a reference to “the Contractor” includes, where the context so admits, its employees, agents and authorised sub-contractors;
1.16.9. a reference to a “person” includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
1.16.10. a reference to a “statute,” “ordinance,” “code” or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
1.16.11. the meaning of general words is not limited by specific examples;
1.16.12. any agreement, representation warranty or indemnity by two or more parties (including where two or more persons are included in the same defined terms) binds them jointly and respectively;
1.16.13. any agreement, representation, warranty or indemnity in favour of two or more parties (including where tow or more persons are included in the same defined term) is for the benefit of them jointly and respectively; and
1.16.14. if a day on or by which an obligation must be undertaken or an event must occur is not a Business Day, the obligation must be undertaken or the event must occur on or by the next Business Day; and
1.16.15. headings and paragraph numbering are for ease of reference only and do not affect interpretation.
2. SUPPLY OF SERVICES
2.1. The Investigator will supply the Services
2.1.1. in accordance with any reasonable instructions and directions given by the Client, as and when may be necessary;
2.1.2. substantively in accordance with this Agreement; and
2.1.3. with due skill and care.
2.2. The Investigator will use all reasonable efforts to provide the Services in accordance with the timetable requested by the Client;
2.3. The Investigator may engage an agent who is a third party of appropriate skill and qualification, who may physically perform some or all of the Services. In this event, the arrangement between the Investigator and the third party is one of agency and not one of sub-contract nor employment.
2.4. The Investigator may assign all or part of the Services to a third party, in accordance with Clause 6 of this Agreement.
3. CONFIDENTIALITY & PRIVACY
3.1. The Client and the Investigator agree to keep confidential and to ensure their respective employees, agents and sub-contractors keep confidential, all Confidential Information:
3.1.1. created by the Client or the Investigator under this Agreement;
3.1.2. provided by the Client to the Investigator in connection with this Agreement; or
3.1.3. provided by the Investigator to the Client in connection with this Agreement; and
3.1.4. not to disclose such Confidential Information without the prior written consent of the Investigator acting in its absolute discretion.
3.2. Where due Fees and Expenses are not paid by the expiration of one week following the reminder notice described in Clause 4.6, the Investigator shall be released from their privacy obligations to the Client and may publish publicly or directly to any third party partially or in full, any or all information held in regard to the Service and the Client.
3.3. It is accepted that as part of the nature of the Service, it is foreseeable that is could be alleged that the Investigator has committed an offence, including but not limited to Stalking. In the event that the Investigator deems it necessary, Confidential Information may be disclosed to Police or investigating authorities to the extent necessary to illustrate the lawful purpose for the Investigator’s actions.
3.4. Where the Client or a party acting on their behalf publishes a negative review of the Service(s) received, the Investigator shall be released from the privacy obligations to the Client and may publish publicly or directly to any third party partially or in full, any and all information held in regard to the Service and the Client, so far as the Investigator deems necessary to defend their commercial standing.
4. FEES, EXPENSES & PAYMENT
4.1. The Client will pay the Investigator the nominated Fee in consideration of the Services.
4.1.1. The Services will be calculated and supplied at the agreed hourly rate, set out verbally or in writing and approved between both the Investigator and the Client.
4.1.2. Unless otherwise stipulated and agreed to by the Investigator, each Service where employees, contractors and/or sub-contractors are deployed is subject to a minimum period of 6 hours.
4.1.3. The Investigator will receive a Retainer before the Services are provided, which may be an amount up to or in excess of the combination of the estimated Fee and Expenses. At the completion of the Services or at another time agreed by the parties, the Remainder shall be returned to the Client, with the Fee and Expenses having been retained by the Investigator.
18.104.22.168. If the Fee and Expenses exceed the Retainer, an amount being the difference between the two shall be payable by the Client and invoiced accordingly. The invoice shall be paid within 7 days of the Invoice Date.
22.214.171.124. Documents, reports and media (including Video and Photographs) may be withheld by the Investigator until full payment of the Invoice; and
126.96.36.199. Or as otherwise agreed.
4.1.4. The Investigator will issue an itemised invoice for the Products or Services following confirmation of the agreement, as and when the nearest availability presents itself and/or upon request by the Client
4.1.5. Fees described and agreed to within associated verbal, email-based or other transmissions form part of these terms.
4.2. The Investigator will be entitled to reimbursement by the Client for reasonable Expenses incurred as part of supplying the Services.
188.8.131.52. This will be in addition to the Fee.
184.108.40.206. Where expenses exceed 30% of the rate of Services, these expenses will be approved by the Client in advance of the expense being incurred.
220.127.116.11. Unless otherwise agreed in advance, where travel is required by motor vehicle, this will be charged as an Expense, calculated per Kilometre travelled as set out in the verbal and/or written transmissions with regards to this Agreement.
18.104.22.168. Other expenses will be charged as the cost is incurred.
22.214.171.124. The Investigator will issue an itemised statement of the Expenses incurred upon request.
4.3. Payment of any and all Fees, Expenses and the terms of payment of the same shall be essential stipulations of this Agreement.
4.4. The Investigator may set off against the Retainer the Fee and/or Expenses and any other monies owed to the Investigator before returning the Remainder.
4.5. If the Client fails to pay an amount due under this Agreement by the due date, the Investigator reserves the right to take appropriate action, including withholding information not limited to associated enquiry results, withholding delivery of Reports, physical and virtual Media or other Documentation, bailing any property held on behalf of the Client, charging interest on the overdue amount, charging a Late Fee of up to 25% per month on the outstanding balance and taking debt recovery action.
4.5.1. In cases where the Client opens a PayPal or other online payment gateway dispute, places a hold on or reverses a credit or debit card payment through the provider or financial institution or similarly actions payment already made, an administrative penalty will be applied on the Account by the Investigator with the greater of $50.00 or 10% of the value of the payment withheld or revoked payable. This shall be added to the Invoice and the total shall be deemed unpaid and overdue.
4.6. Where due Fees and Expenses are not paid by the Client by the due date, a reminder notice will be sent. Should Fees and Expenses remain unpaid one week after the reminder notice, Clauses X.X and 4.7 shall come into effect.
4.7. Where due Fees and Expenses are not paid by the expiration of the week following the reminder notice (as described in Clause 4.6), any discounts present in any quote, estimate, invoice or reminder may be removed at the discretion of the Investigator. The Client shall then be required to pay the full Fees and Expenses amount, without the discount. Where no discount was specified, an amount up to and including 25% of the total invoice may be added as a Late Payment Fee.
4.8. Unless otherwise agreed or stated on the invoice, full payment shall be due within seven (7) days from the date of the invoice.
5. TERM & TERMINATION
5.1. This Agreement will commence on the Start Date as stipulated verbally, in writing and/or through any other form of transmission between the Investigator and the Client. The Term will continue either;
5.1.1. Until the completion of the Service(s) or;
5.1.2. As otherwise agreed.
5.2. If the Client wishes to extend the Term, the Investigator must agree in writing beforehand.
5.3. Either Party may terminate this Agreement by notice in writing to the other Party if the other Party is in breach of a term or condition of this Agreement and where that breach is not remedied within seven (7) days of the other Party serving notice of the breach and requiring it to be remedied.
5.4. The Investigator may terminate this Agreement with immediate effect by giving written notice to the Client if:
5.4.1. the Investigator becomes aware of a potential conflict of interest which the Investigator deems significant;
5.4.2. the Investigator becomes aware of anything which leads them to believe that the continuation of the Services may endanger the safety of any person or facilitate the commission of a criminal offence or the breach of a court order including the breach of bail conditions;
5.4.3. the Client becomes unable to pay the required Fees and/or Expenses when they become due;
5.4.4. the client enters into any arrangement between itself and its (or any class of its) creditors;
5.4.5. the Client ceases to carry on business;
5.4.6. the Client has a mortgagee enter into possession or dispose of the whole or any part of its assets or business;
5.4.7. the Client enters into liquidation or any form of insolvency administration; or
5.4.8. the Client has a receiver, receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person appointed to the whole or any part of its assets or business.
5.5. The Investigator may also terminate this Agreement at any time without cause and with immediate effect by giving the Client written notice.
5.6. Termination of this Agreement, for whatever cause, will not affect any right or cause of action which has accrued to the Party which terminates this Agreement at or prior to the date of termination.
5.7. Where the Client terminated the Agreement other than following a breach by the Investigator, the Investigator may charge or retain from any Retainer, an amount equal to the greater of six (6) hours at the Standard Rate, 25% of the total fees payable for the agreed Service(s), or the value of the first full day of deployment scheduled in undertaking the agreed Service(s).
6. RELATIONSHIP & ASSIGNMENT
6.1. This Agreement constitutes a relationship of principal (on part of the Client) and independent contractor (on the part of the Investigator) and no employment, partnership or joint venture relationship is created nor exists between the Parties.
6.2. Any part of the whole of any Service(s) provided under this Agreement may be assigned by Precise Investigation to another Party (a “Third Party”) at the sole discretion of Precise Investigation. In such a case, this Third Party takes the place of Precise Investigation in relation to those services, without being an employee, agent or in any way controlled or directed by Precise Investigation.
6.3. Where services are assigned to a Third Party, these terms shall apply to that Third Party as though they were Precise Investigation, to the fullest extent possible.
6.4. Any Third Party to whom any services are assigned agreed to be bound by the terms of this Agreement as Precise Investigation would have been bound. However, such services are undertaken as an independent Party, without the Third Party acting as an employee, agent or representative of Precise Investigation in any way.
7.1. Each Party warrants to the other Party that it has the power to enter into this Agreement and to undertake its obligations as stipulated in this Agreement.
7.2. The Investigator warrants that all Services will be supplied to the Client substantively in accordance with this Agreement.
8. INTELLECTUAL PROPERTY
8.1. Unless otherwise agreed, the Investigator will own all material created by the Investigator, its employees, agents and sub-contractors whilst undertaking the Service for the Client. To facilitate this, the Client:
8.1.1. acknowledges that no additional documentation is necessary to complete the assignment and, by virtue of this Clause, all such intellectual property rights will vest in the Investigator;
8.1.2. will ensure that any of the Client’s employees, agents or sub-contractors that own intellectual property in such material will assign to the Investigator all associated intellectual property rights referring to or necessary for the provision of the agreed Service(s);
8.1.3. assigns to the Investigator, including by way of an assignment of future intellectual property, all intellectual property rights in all such material (whether that material is created alone or jointly with the Investigator); and
8.1.4. will procure the prior written consent of the Client’s employees, agents or sub-contractors to the infringement of any moral rights which they may have in relation to such material.
9. LIMITATION OF LIABILITY
9.1. The Client acknowledges that other than as set out in Clause 7, the Investigator makes no warranties under this Agreement.
9.2. The Investigator excludes from this Agreement all conditions, warranties and liabilities implied or imposed by the statute, general law or custom except any liability or implied condition or warranty, the exclusion of limitation of which would contravene any statute or cause any part of this Clause to be void.
9.3. To the extent permitted by law:
9.3.1. the Investigator excludes liability, including liability in negligence, for any direct or indirect loss or damage, including but not limited to loss of revenue, wasted overheads, loss of opportunity, loss of profit and any costs or damages sustained as a result of a claim by a Third Party, which may arise in respect of the Service(s) or otherwise in connection with this Agreement; and
9.3.2. the Investigator’s total liability to the Client, under or in relation to this Agreement, including liability for negligence and breach of this Agreement, arising in relation to acts, omissions and events occurring in a particular year of this Agreement, is limited in aggregate to the price paid by the Client under this Agreement, in the year of this Agreement during which the liability was incurred.
10. DIPSUTE RESOLUTION
10.1. A Party claiming that a dispute has arisen under this Agreement (Dispute) must notify the other Party, giving written details of the Dispute. The Parties agree to negotiate in good faith on a commercially realistic basis, to resolve the Dispute and will refer resolution of the Dispute to officers within each Party who are authorised to hear the Dispute before commencing any legal proceedings in relation to the Dispute.
10.2. Any Dispute which cannot be settled under Clause within a reasonable time must be referred for determination by a person appointed for that purpose, by the Parties and failing Agreement, appointed by the President of the Institute of Arbitrators and Mediators Australia (Victoria Division) or by other method agreed between both the Investigator and the Client.
10.3. Any determination made under the above Clause is binding on both Parties and the Commercial Arbitration Act 1984 (VIC) applies to the determination, except to the extent otherwise agreed by both Parties.
10.4. Nothing in this Clause will prevent a Party from seeking interlocutory relief.
11. SPECIAL CONDITIONS
11.1. This Agreement is subject to the special conditions (if any) set out in the verbal, written and/or other transmissions associated with the required Service(s) and the terms of this Agreement. In the event of inconsistency between the special conditions and the provisions of this Agreement, the special conditions will prevail.
12. DEEMED ACCEPTANCE
12.1. As an alternative to Execution herein, this agreement may be entered into verbally or through agreement to its terms presented in writing.
12.2. Reference to the “Standard Terms” of the Investigator shall constitute reference to this document.
12.3. Acceptance on the part of the Client shall be expressed or implied in writing, or expressed or implied verbally, or deemed by any payment or agreement to make payment to the Investigator with agreement that the Investigator’s “Standard Terms” shall apply, either partly or in full.
12.4. Acceptance on the part of the Investigator shall be either expressed in writing or by acceptance of any payment or by partial undertaking.
12.5. Any term herein may be modified by agreement between the Client and the Investigator. Where it is not sown that the terms have been modified, the Standard Terms herein shall apply.
13.1. Governing law and Jurisdiction.
13.1.1. The laws applicable in Victoria, Australia govern this Agreement and each Party submits to the jurisdiction of the courts of Victoria and any courts which may hear appeals from those courts.
13.2. Entire Agreement.
13.2.1. This Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties in connection with its subject matter.
13.3.1. This Agreement may only be amended in writing.
13.4.1. The Client may only assign this Agreement or a right under this Agreement with the prior written consent of the Investigator acting in its absolute discretion.
13.5.1. A Party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further 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 giving the waiver.
13.6.1. A term or part of a term of this Agreement this is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of this Agreement continue in force.
13.7.1. This Agreement may be executed in counterparts, including facsimile counterpart. All executed counterparts constitute one document.
13.8.1. Each Party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by and within it.
13.9. Payment of taxes and charges.
13.9.1. Subject to Clause 4, any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with this Agreement or any transaction contemplated by this Agreement, must be paid by the Client.
13.10. Force Majeure. Neither Party will be liable to the other for the consequences of any delays or failures of its performance which are caused by any event beyond the Parties’ reasonable control, including, without limitation, acts of God, fire, flood, accident, terrorism, strike and riots and either Party may terminate the Agreement if such an event occurs and continues for a period of 30 days or more.