1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the contrary intention appears or the context requires otherwise:
Agreement means these terms and conditions, the cover sheet and any appendix or schedule to them;
Additional Services means any services not specified in Schedule 2 and provided by Recall to the Customer as requested by the Customer from time to time;
Charges mean the charge or charges for the Goods or Services as listed in Schedule 2;
Confidential Information means information relating to the Customer’s business affairs disclosed to Recall by the Customer in the course of Recall providing the Services but excludes all information which is in the public domain or was known by Recall prior to the disclosure by the Customer;
Contract Period means the 12 month period immediately preceding an event giving rise to an action or claim;
Due Date means the time specified in Schedule 1, (or if not specified, within 14 days from the date of each invoice);
Force Majeure Event means any event outside the affected party’s reasonable control, including but not limited to an act of God, government or quasi-government act or regulation, riot, act of terrorism, war, flood, fire, industrial dispute, epidemic, or any risk to health or safety;
Goods means the goods, supplied by Recall to the Customer in accordance with this Agreement;
GST means any consumption tax, goods and services tax, value-added tax and any similar tax, impost or duty;
Initial Term means the period specified in Schedule 1 (or if not specified the period of 12 months) commencing on the Start Date;
Insolvency Event includes the winding up, dissolution or cessation of business, the appointment of an administrator or an official manager, an assignment for the benefit of creditors, scheme or arrangement with creditors, insolvency, bankruptcy of a party or any similar procedure;
Intellectual Property means all intellectual property (registered or unregistered) and includes without limitation: customer information, drawings, inventions, improvements, technical data, formulae, computer programs, databases, designs, patents and trademarks;
Personal Information has the meaning assigned to it in the Privacy Act;
Privacy Act means the Privacy Act 1988 (Cth) as amended, and includes the regulations and any guidelines issued by the Privacy Commissioner from time to time;
Records means all written or printed material or other objects including but not limited to any information storage mediums (such as documents, paper records, magnetic tapes, rigid and floppy disks, CD ROMs, DVD, video tapes, microfiche and microfilm or other computer media) and any accompanying containers and packaging materials, provided by the Customer to Recall in connection with the Services;
Renewal Term means the period specified in Schedule 1 or if not specified, the period equal to the Initial Term;
Safe Handling Rate means the maximum rate per day at which Recall is able to process the Records for return to the Customer or destruction, to be advised to the Customer as part of the transition out plan or bulk destruction;
(a) all of the services relating to the collection, scanning, cataloguing, digitising, retrieval, refiling, tracking, swapping (including loading computer media into customer devices), delivery, storage or destruction of Records as referred to in Schedule 2; and
(b) any Additional Services;
Special Conditions means those conditions agreed by both parties and specified as such in Schedule 1;
Start Date means the date specified as the start date In Schedule 1 of this Agreement, or if no date is specified, the date that this Agreement is executed by both parties;
Technology Licence means the licence attached in Schedule 3 in circumstances where Recall provides web-based or electronic technology as part of the Services;
Term means the term of this Agreement, being the Initial Term plus any Renewal Terms;
Terminate or Termination for the purposes of clause 6.5 includes the reduction of the Customer’s Records or, in the case of secure destruction services, the reduction in the number of scheduled services by more than 75%.
In this Agreement, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, assigns, employees, agents, representatives and contractors;
(c) if a period of time is specified, and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(d) headings in this agreement are inserted for convenience and do not affect the interpretation of this agreement;
(e) a reference to a statute, mandatory guideline or other law includes regulations and, amendments, or replacements of that statute, ordinance, code, guideline or law;
(f) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from the clause.
1.3 The Special Conditions form part of this Agreement and prevail to the extent of any inconsistency between the Special Conditions and the terms and conditions of this Agreement.
2.1 Recall agrees to provide the Services and any Additional Services to the Customer on the terms and conditions of this Agreement and the Customer agrees to engage Recall exclusively to provide the Services pursuant to the terms and conditions of this Agreement for the Term. 2.2 Recall agrees, having regard to the nature of the Services being provided, to perform the Services in a proper and professional manner and in accordance with industry practice.
3. TERM OF THE AGREEMENT
3.1 This Agreement commences on the Start Date and continues for the Initial Term unless terminated earlier in accordance with clause 6.
3.2 If this Agreement is not terminated as at the end of the Initial Term, this Agreement continues automatically for equal succeeding periods equivalent to the Renewal Term, until it is terminated in accordance with clause 6.
4. CHARGES AND PAYMENT
4.1 The Customer must pay the Charges and any GST payable to Recall by the Due Date free of set-off and without deduction. 4.2 Recall may adjust the Charges at any time, by giving 60 days’ notice in writing to the Customer, or as set out in Schedule 1. The adjusted Charges will take effect from the end of the 60 day notice period.
4.3 Where Charges are based on estimated volumes of Records provided by the Customer, and there is a material difference in the actual volume of Records lodged, then Recall may, acting reasonably, vary the Charges based on the revised volumes.
4.4 Additional Services will be charged at Recall’s then-current standard charge for that service unless otherwise agreed in writing between the parties.
4.5 Charges for any audit of the Customer’s Records may be applicable depending on the size and location of the Records.
4.6 If the relevant payment is not received from the Customer by the date when it is due and payable, and the Customer has not raised a genuine dispute in relation to the relevant payment, Recall may in addition to its rights and remedies at law or equity, do any one or more of the following at its discretion:
(a) charge the Customer interest on the outstanding amount from the due date;
(b) recover from the Customer any reasonable costs which Recall may incur in recovering any outstanding amounts from the Customer;
(c) suspend all or part of any Service until the Customer has paid to Recall all outstanding amounts;
(d) deliver the Records to the Customer’s address last notified to Recall at the Customer’s risk and expense; or
(f) exercise its rights under the lien specified in clause 5.2(d).
4.7 Where any invoiced Charges remain unpaid for more than 12 months after the Due Date and the Customer has not responded to Recall’s requests for payment, Recall must send a final notice to the Customer advising the destruction of the Records unless payment is received within a specified timeframe. If such payment is not received, Recall shall, without further notice or compensation to the Customer, destroy the Records to which the unpaid Charges relate.
5. WARRANTIES AND ACKNOWLEDGMENTS
5.1 The Customer warrants that: (a) the Customer is the owner of the Records, or the authorised agent of the owner of the Records, and has authority to contract with Recall on the terms of this Agreement including the authority to destroy the Records;
(b) the Records are packaged and labelled in compliance with all relevant safety laws and regulations and are packed in a manner to withstand the ordinary risks of storage and/or transportation, having regard to the nature of the Records;
(c) the Records are not self-combustible, volatile, explosive, radioactive or otherwise dangerous and the Customer acknowledges and agrees that if any of the Records are or are liable to damage any other property, Recall may at any time destroy those Records without compensation to the Customer and without prejudice to any other rights of Recall whether under this Agreement or at law;
(d) the Customer will comply with applicable health and safety legislation and the reasonable directions of Recall to ensure the health and safety of all persons involved in the performance of the Services at its cost and the Customer acknowledges and agrees that where Recall is not reasonably satisfied with the Customer’s compliance under this clause 5.1(d) it may suspend the relevant Service(s) until it is satisfied in relation to those issues; and
(e) that the person executing this Agreement is authorised to do so on behalf of the Customer.
5.2 The Customer acknowledges and agrees that:
(a) Recall has relied on the Customer’s warranties in clause 5.1 in providing the Services;
(b) the Customer is satisfied that the Services are suitable for its Records and/or requirements;
(c) Recall will not be responsible for any loss due to natural degeneration of any Records over time;
(d) without limiting its rights at law or equity Recall shall have a lien (general or particular, as the case may be) on the Records and any documents relating to the Records for all sums payable by the Customer to Recall in respect of the Services conferred on Recall by the Warehousemen’s Lien Act 1935 No. 19 (NSW) or any comparable legislation in other States or Territories. If any requirement under the relevant legislation requires Recall to give notice of the existence of the lien, then this Agreement shall serve as the requisite notice to the owner of the Records;
(e) Recall is not a common carrier and does not have any liability to the Customer as such;
(f) Recall is not responsible for ensuring that the Customer complies with any statutory or other obligations that the Customer may have regarding the preservation, encryption or maintenance of the Records;
(g) Recall is not an insurer of the Records and Recall accepts no responsibility for insuring the Records. The Customer should arrange and maintain the appropriate and adequate insurance to cover its liability against loss and/or damage to its Records if required;
(h) Recall will not be liable for loss of or damage to any information or data contained in the Records;
(i) in the event that Recall is unable to perform the Services requested by the Customer due to the Customer’s default, and the Customer does not notify Recall prior to Recall commencing performance of the Services, the Customer will be liable to pay for those Services as if those Services had been rendered;
(j) where the Customer acquires Recall branded packaging materials it will not deal with such materials in any way that brings Recall into disrepute including, without limitation, disposing of the materials in a non-secure way;
(k) the Customer will be responsible for keeping Recall updated in relation to any changes to its name, authorised representatives, address or any other details; and
(l) where Recall has provided scanning services to the Customer, any scanned images that have been stored on Recall’s server will be deleted within four (4) weeks of the image being provided to the Customer, unless otherwise agreed.
6.1 Either party may terminate this Agreement with effect from the end of the Initial Term or Renewal Term by giving the other party at least 60 days written notice before the end of the Initial Term or the Renewal Term as the case may be.
6.2 Without limiting their other rights under this Agreement, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) an Insolvency Event occurs in respect of the other party; or
(b) the other party materially breaches this Agreement and fails to correct the breach within 14 days after notice of that breach from the non-breaching party.
6.3 Without limiting clause 6.2, the following matters shall constitute a material breach of this Agreement by the Customer:
(a) the Customer does not pay for any invoiced Services within 14 days of the Due Date; or
(b) any warranty or representation given by the Customer to Recall under this Agreement is materially false or misleading.
6.4 On termination or expiry of this Agreement, the Customer must:
(a) pay Recall, prior to the removal or destruction of the Records:
(i) all Charges, including Charges incurred to the date of termination or expiry of the Agreement and any Charges which accrue from the date of termination or expiry until the Records are returned, collected or destroyed; and
(ii) any amounts specified in Schedule 2 for the permanent removal of such Records in addition to a retrieval charge for each item as well as any other Charges normally paid for retention during the transition out process, transport and handling of the Records; and
(b) return to Recall any equipment Recall has provided to the Customer for the provision of the Services, or allow Recall access to the Customer’s premises to collect such equipment.
6.5 The Customer acknowledges that Recall has relied on information from the Customer as to the proposed period for which the Customer will require the Services in entering into this Agreement and setting the Charges. If the Customer Terminates, or attempts to Terminate, this Agreement during the Initial Term other than in accordance with this clause 6, then the Customer agrees to pay to Recall, by way of liquidated damages, a sum equal to 75% of the Charges that would have been payable to Recall by the Customer for the unexpired portion of the Initial Term had the Customer continued to utilise the Services at the average rate incurred during the immediately preceding three months. Furthermore, the Customer acknowledges and agrees that the liquidated damages described in this clause 6.5 represent a genuine pre-estimate of loss.
7. TRANSITION OUT
7.1 On expiry or receipt of notice of termination of this Agreement the parties will negotiate and agree to a reasonable plan for the return or destruction of Records to the Customer which is consistent with Recall’s then current standard operating practices and which shall not exceed the current Safe Handling Rate. Such plan shall commence, subject to receipt of all amounts owed by the Customer, at the expiry of the notice period unless otherwise agreed. For the avoidance of doubt, unless otherwise agreed by the parties in writing, the provision of any Services during the transition out period shall be provided on the same terms and conditions as this Agreement.
8. CONFIDENTIALITY OF RECORDS
8.1 Recall will take all reasonable measures to ensure that all Confidential Information held in connection with this Agreement is protected from misuse or unauthorised disclosure.
10.1 To the extent permitted by law, all conditions and warranties not expressly included in this Agreement, other than the statutory guarantees outlined in the Australian Consumer Law (ACL), are excluded.
10.2 The Services or Goods provided by Recall are subject to statutory guarantees that cannot be excluded under the ACL. Where applicable, liability arising as a result of a proven breach of the statutory guarantees in the ACL will be limited in accordance with s64A of the ACL to:
(a) with respect to Services, the resupply of the Service or the payment of the cost of having the Services supplied again; and
(b) with respect to any Goods, the replacement of the relevant Goods.
10.3 Subject to clauses 10.2 and 10.4, Recall is not liable for and the Customer releases Recall from all liability in contract, tort, bailment or otherwise whether due to negligence, breach, wilful act or omission or any other cause in respect of any loss, damage, expense, injury or death arising out of or in connection with this Agreement.
10.4 To the extent permitted by law Recall shall not be liable for any indirect, special or consequential losses (including but not limited to any damages calculated by reference to loss of profit, information, revenue, goodwill or business opportunities, loss of intrinsic value of the Records and damage to reputation) arising out of or in connection with this Agreement.
10.5 To the extent that Recall’s liability cannot be excluded or limited in the manner prescribed by this clause 10, Recall’s total aggregate liability (including liability due to negligence, breach, wilful act or default or under an indemnity) under this Agreement for all claims arising out of or in connection with this Agreement in any one Contract Period shall be limited to the amount which is equivalent to the sum of the Charges paid by the Customer to Recall in that Contract Period.
10.6 The Customer is liable for and indemnifies Recall in respect of all losses, of whatever nature, caused or contributed to by the Customer and incurred by Recall in connection with the provision of the Services to the extent that the loss or damage is caused or contributed to by the Customer.
11.1 Recall is taken to have duly delivered Records to an address if a person there signs a delivery docket for the Records. Recall is taken to have duly collected Records from an address if Recall gives a person there a receipt for the Records.
11.2 Title to the Goods passes to the Customer upon payment of the Charges.
11.3 Risk in the Goods passes to the Customer when the Goods are delivered to the delivery address provided by the Customer.
11.4 Where any order, writ or mandatory instrument relating to the Services or the Records is served on or presented to Recall and appears on its face to be duly and properly created and executed, Recall may comply with it and the Customer indemnifies Recall for any loss or expenses in respect of Recall so complying.
11.5 The Customer authorises Recall to subcontract or assign the whole or any part of the provision of the Services.
11.6 Recall will be responsible for the actions of its subcontractors in the provision of the Services and every right, exemption from liability and defence to which Recall is entitled in accordance with this Agreement shall also be available and shall extend to protect all agents, employees and subcontractors of Recall.
11.7 Unless otherwise agreed in writing, Recall reserves the right to store the Records at any of its storage locations.
11.8 Any claim for missing or damaged Records must be made in writing to Recall within 30 days after delivery to the Customer.
11.9 No action, arising out of or in connection with this Agreement (other than an action by Recall for any amount due to Recall) may be brought more than one year after the cause of action first arose.
11.10 This Agreement will apply to the exclusion of all other terms and conditions provided by the Customer including as part of a purchase or work order. Recall’s fulfilment of its obligations under this Agreement shall not constitute acceptance of those terms and conditions.
11.11 This Agreement constitutes the entire agreement between the parties and supersedes all previous oral or written proposals, representations, agreements and other communications between the parties in relation to the subject matter.
11.12 Any variation to this Agreement must be agreed to in writing by a duly authorised officer of each party.
11.13 The failure by either party to observe or perform wholly or in part any obligation (other than an obligation to pay money) under this Agreement will not be a breach of this Agreement to the extent that the failure was caused by or arose as a result of a Force Majeure Event.
11.14 Any forbearance, indulgence or delay in enforcing any right or remedy by a party does not constitute a waiver of rights issued or in any way prejudice any right or remedy of that party.
11.15 If any part of this Agreement is unenforceable, invalid or void then that part of the Agreement is severed and the rights and obligations of the remaining parts of the Agreement continue to apply.
11.16 Any notice under this Agreement must be in writing and delivered, by facsimile or email, or by prepaid post to the last known facsimile number or email or physical address of the Customer as detailed on the coversheet of this Agreement or as advised from time to time.
11.17 The Customer may not assign its rights under this Agreement without first obtaining Recall’s prior written consent.
11.18 This Agreement is governed by the laws of the state of New South Wales and the Commonwealth of Australia and the parties submit to the non-exclusive jurisdiction of the courts of those places.
12. DISPUTE RESOLUTION
12.1 If a dispute arises under this Agreement, a party may give written notice to the other specifying the dispute and requiring its resolution under this clause (Notice of Dispute).
12.2 If the dispute is not resolved within 14 days of the Notice of Dispute, the parties may jointly refer the dispute to mediation in accordance with this clause.
12.3 If the parties are unable to agree on a mediator within 21 days of the Notice of Dispute, the mediator shall be appointed by the Australian Commercial Disputes Centre (or other similar body).
12.4 The parties must pay the mediator’s fees in equal shares. Each party must pay its own costs of the mediation.
12.5 If the dispute is not resolved within 28 days after the appointment of the mediator, the parties shall be free to commence court proceedings.
12.6 This clause does not prevent any party from obtaining any injunctive, interlocutory or declarative relief from a court, which may be urgently required.
13. DESTRUCTION OF RECORDS
13.1 Where the Services involve the destruction of Records the title to those Records passes to Recall upon destruction.
13.2 Any Records not contained in a bin provided by Recall will not be collected unless otherwise agreed in writing between the parties, and it is the Customer’s responsibility to ensure that the correct material is removed by Recall.
13.4 The Customer:
(a) must not remove, deface, cover up or interfere in any way with any equipment (including any identifying marks of ownership on equipment), provided by Recall;
(b) acknowledges that it has no proprietary rights to any equipment provided by Recall and will not purport to sell, lease or otherwise part with possession of such equipment without Recall’s prior written approval;
(c) must compensate Recall for any loss or damage to such equipment (caused by someone other than Recall) at Recall’s then current replacement cost for that item of equipment plus any other costs incurred by Recall in connection with the loss of or damage to such equipment.
13.5 Any bulk destruction will be carried out at the Safe Handling Rate.
14. INTELLECTUAL PROPERTY
14.1 Where Recall provides web-based or electronic technology as part of the Services, that technology is provided for use by the Customer as a licensee on a non-exclusive basis, solely for the purposes of making use of the Services provided by Recall and otherwise in accordance with the attached Technology Licence.
14.2 The parties acknowledge that property in all Intellectual Property which arises pursuant to or during the course of the performance of this Agreement and relating to the business of or products marketed by Recall is vested and shall vest in Recall and the Customer undertakes to do all such acts and things to execute all such documents as may be necessary or effective to vest such property in Recall.
SCHEDULE 1 – Agreement Details
SCHEDULE 2 – Goods and Services and Charges
SCHEDULE 3 –Technology Licence ReView or eVault (where applicable)