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Sky Touch Terms.

1. Definitions and Interpretation

1.1 Definitions

“Ancillary Services” means services provided or to be provided by a third party which are ancillary to the Services.

“Business day” means the day on which banks are open for general banking business in Brisbane, Queensland, Australia.

“Claim” includes any claim, action, proceeding, demand, liability, obligation, costs (including legal costs), losses, damages and expenses, including those arising out of the terms of any settlement.

“Confidential Information” means information that:
(a) Is by its nature confidential;
(b) Is treated by the disclosing Party as confidential; or
(c) The receiving Party knows or ought to know is confidential
but does not include information that was already in the possession of the receiving Party and not subject to an obligation of confidentiality, is lawfully received from a third party or independently developed by the receiving Party or is already public knowledge other than through a breach of an obligation of confidentiality.

“Contract” means the agreement between You and Sky Touch for provision of the Services entirely constituted by the Terms and Conditions, the Schedule and Annexures. To the extent of any inconsistency the order of precedence will be the Special Conditions in the Schedule, the Terms and Conditions, the Schedule (other than the Special Conditions) and Annexures.

“Contract Manager” means the person specified in Table A of the Schedule by You or other person nominated from time to time by You, who by nominating such person You warrant is authorised by You to provide the information described in clauses 3.3.1 and 3.3.2 and any other information reasonably required by Sky Touch, its agents or contractors from time to time for provision of the Services.

“Contract Material” means any material that is created, written or otherwise brought into existence by or on behalf of Sky Touch in the course of providing the Services.

“Existing Material” means any material that (a) exists at the Commencement of this Contract; or (b) is produced after the Commencement of this Contract, independently of this Contract.

“Expenses” means expenses incurred by or on behalf Sky Touch, which relate to provision of the Services and without limitation includes the actual cost of any expenses estimated in Table F of the Schedule and other expenses which have been approved by You prior to being incurred by or on behalf of Sky Touch.

“GST” means Goods and Services Tax as imposed through Australia’s, a New Tax System (Goods and Services Tax) Act 1999 and any related tax imposition law (whether imposing tax as a duty of customs excise or otherwise) and includes any legislation which is enacted to validate, recapture or recoup the tax imposed by any such laws.

“Hotel” means the property identified in Table B of the Schedule You warrant having legal rights of ownership and control over.

“Intellectual Property Rights” includes all copyright, trademark, design, patents or other proprietary rights, or any rights to registration of such rights existing in Australia or elsewhere or as protected by legislation from time to time, whether created before, on or after the Commencement of this Contract.

“Minimum Standards” means the level of compliance as solely determined by Sky Touch from time to time for the various audit activities and/or certifications specified in Table D, based on global industry standards for hotel security.

“Party” means a party to this Contract.

“Services” means the work identified in Table D, of the Schedule to be provided under this Contract.

“Service Fee” means the fees specified in Table F of the Schedule calculated for the various Services by reference to the fees specified Table D,

“Sky Touch” means Sky Touch Global Hotel Security Consulting Pty Ltd ACN 166 069 030 its successors or assigns.

“Table” means the corresponding table specified in the Schedule of this Contract.

“Terms and Conditions” means the terms and conditions contained in this document.

“You”, “Your” means the person, company or other legal entity identified in Table A of the Schedule as the Client procuring the Services.

1.2 Interpretation

In these Terms and Conditions, unless the context otherwise states:
a) The singular includes the plural and vice versa;
b) A reference to a Party to these Terms and Conditions or any other document or arrangement includes the Party’s executors, successors, administrators and permitted assigns;
c) A reference to a period of time (including, without limitation, a year, a month and a day) is to a calendar period;
d) A heading is for convenient reference only and does not affect interpretation;
e) A reference to a clause is a reference to a clause in these Terms and Conditions; and
f) Unless otherwise specified all dollar amounts refer to Australian dollars;

2. Term

2.1 This Contract commences on the date the Contract is signed by both parties and if the Contract is not signed concurrently, the commencement date is the date that the last of the two parties signs the Contract.

2.2 The Contract remains in effect until it is terminated in accordance with clause 10 or it expires on the expiration date (if any) specified in Table H of the Schedule, whichever sooner.

3. Our Services

3.1 Acceptance of a Request for Services

3.1.1 Sky Touch may in its sole discretion accept, reject or not respond to a request for services received from You.

3.1.2 A contract for provision of the Services does not exist until both Parties have executed this Contract.

3.1.3 This Contract supersedes all prior representations, agreements, statements and understandings between the Parties, whether oral or in writing relating to the subject matter of the Contract.

3.2 Provision of Services

3.2 Sky Touch will provide the Services in a professional manner.

3.3 Your responsibilities

3.3.1 You agree to take all reasonable steps to provide to Sky Touch or its contractors specified in Table C of the Schedule, without charge the following information and material prior to commencement of the Services for provision of the Services:
a) Details of all dangerous, corrosive, highly combustible, potentially explosive, damaging or noxious substances you know or reasonably suspect is present at the Hotel and could in any manner whatsoever affect the health, safety and wellbeing of Sky Touch’s employees, contractors and agents while carrying out the Services;
b) Floor plans of the Hotel; and
c) Any similar or other information and material reasonably requested by Sky Touch for provision of the Services.

3.3.2 You agree to take all reasonable steps to provide to Sky Touch, its contractors and agents all information and material Sky Touch, its contractors or agents may reasonably request from time to time during provision of the Services.

3.3.4 You warrant all information and materials provided by You to Sky Touch, its contractor or agents is, unless otherwise specified in writing, accurate and reliable as at the date it is provided. You agree to promptly notify Sky Touch of any circumstances which suggest or may result in any of the information and/or material provided by You to Sky Touch, its contractors or agents to be inaccurate or unreliable and the extent to which such information and/or material is inaccurate or unreliable.

3.3.5 You are responsible for:
a) Compliance with any applicable rules, legislation and regulation that applies to the Hotel including those relating to security or workplace health and safety;
b) Ensuring Sky Touch its officers, employees, contractors and agents have full and safe access, free of charge, to all parts of the Hotel at all times for the purpose of providing the Services. Where access to any part of the Hotel requires a key, access card or security code You must ensure You appoint free of cost to Sky Touch an authorised person to act on your behalf (not Sky Touch, its officers, employees, contractors or agents) to assist Sky Touch, its officers, employees, contractors or agents with access;
c) Compliance with Sky Touch audit requirements; and
d) Notifying Sky Touch of any changes to Hotel policies and procedures, which relate to security at the Hotel.

3.4 Ancillary services

3.4.1 By written notice you may request Sky Touch arrange Ancillary Services on your behalf. Sky Touch will notify you in writing if it agrees to such request. Sky Touch has no obligation to agree to or to respond to a request to arrange Ancillary Services.

3.4.2 You will be responsible to meet the costs of all Ancillary Services and to satisfy Yourself as to the satisfactory completion of any Ancillary Services.

3.4.3 You agree to indemnify and keep indemnified Sky Touch its officers and employees from and against any Claim which may be brought against or made upon or incurred by Sky Touch, its officers and employees in connection with or arising out of any Ancillary Services arranged by Sky Touch on Your behalf.

3.5 Global Lighthouse Certification Audit

3.5.1 In consideration of You paying the pre-audit Service Fee, Sky Touch will carry out a pre-audit of the Hotel by the delivery date specified in Table E.

3.5.2 If the pre-audit does not meet the Minimum Standards to the satisfaction of Sky Touch, Sky Touch will provide to You a report on the areas of non-compliance and prescribe a period of up to three months for You to, comply with all areas of non-compliance and notify Sky Touch of such compliance.

3.5.3 In consideration of You paying the audit Service Fee, Sky Touch will carry out an audit of the Hotel provided at least one of the following has occurred:
(a) You have waived provision of a pre-audit of the Hotel by Sky Touch;
(b) The pre-audit carried out by Sky Touch on the Hotel met the Minimum Standards to the satisfaction of Sky Touch. In such case the audit Service Fee payable will be the amount of the audit Service Fee specified in Table F less the amount of the pre-audit Service Fee already paid by You; or
(c) You have complied with all areas of non-compliance of the pre-audit reported by Sky Touch under clause 3.5.2, and accordingly notified Sky Touch within the prescribed period.

3.5.4 If Sky Touch is satisfied the Hotel meets the Minimum Standards of audit certification at that time, Sky Touch will issue an audit certificate for the Hotel which shall, subject to renewal under clause 3.6, remain valid only for an initial period of 24 months from the date of issue.

3.5.5 If the audit carried out by Sky Touch does not to Sky Touch’s satisfaction meet the Minimum Standards at that time, Sky Touch will provide to You a report on the areas of non-compliance and prescribe a period of up to three months for You to, comply with all areas of non-compliance and notify Sky Touch of such compliance.

3.5.6 If You have complied with all areas of non-compliance of an audit and notified Sky Touch of such compliance within the prescribed period, in consideration of You paying the revisit audit Service Fee Sky Touch will conduct a revisit audit within one month of notification or such extended period as may be agreed by the Parties.

3.5.7 If at the conclusion of the revisit audit Sky Touch is satisfied You have complied with all areas of non-compliance, Sky Touch will issue an audit certificate for the Hotel which shall, subject to renewal under clause 3.6, remain valid only for the period nominated in Table D.

3.5.8 If at the conclusion of the revisit audit Sky Touch is not satisfied the Hotel complies with the areas of non- compliance or otherwise meets the Minimum Standards at that time, Sky Touch will NOT issue an renewal audit certificate for the Hotel. Sky Touch will provide to You a report on areas of non-compliance. Any dispute will be dealt with in accordance with clause 6.0.

3.6 Global Lighthouse Certification Audit Renewal (Retake)

3.6.1 You authorise and request Sky Touch to undertake retake audits of The Global Lighthouse Certification Audit at the Hotel without need for further notification. Sky Touch will in consideration of the retake audit Service Fee, complete each retake audit prior to the expiration date of the then current audit certification issued by Sky Touch.

3.6.2 Sky Touch will render an invoice following completion of the retake audit. Invoices are payable within 14 days.

3.6.3 If Sky Touch is satisfied the Hotel meets the Minimum Standards of audit certification at the time of the retake audit, the then current audit certification for the Hotel will be extended for a further period of either 12 months or 24 months as nominated in Table D or otherwise agreed to by the Parties by an exchange of signed notifications in writing.

3.6.4 If the retake audit carried out by Sky Touch does not to Sky Touch’s satisfaction meet the Minimum Standards at that time, Sky Touch will provide to You a report on the areas of non-compliance and prescribe a period of up to three months for You to, comply with all areas of non-compliance and notify Sky Touch of such compliance.

3.6.5 If You have complied with all areas of non-compliance of a retake audit and notified Sky Touch of such compliance within the prescribed period, in consideration of You paying the revisit audit Service Fee Sky Touch will conduct a revisit audit within one month of notification or such extended period as may be agreed by the Parties.

3.6.6 If at the conclusion of the revisit audit Sky Touch is satisfied You have complied with all areas of non-compliance, Sky Touch will issue an audit certificate for the Hotel which shall, subject to further renewal under this clause 3.6, remain valid for the period referred to in clause 3.6.3.

3.6.7 If at the conclusion of the revisit audit Sky Touch is not satisfied the Hotel complies with the areas of non- compliance or otherwise meets the Minimum Standards at that time, Sky Touch will NOT issue a renewed audit certificate for the Hotel. Sky Touch will provide to You a report on areas of non-compliance. Any dispute will be dealt with in accordance with clause 6.0.

3.6.8 Notwithstanding clause 3.6.1, You may by giving not more than three (3) months notice and not less than one (1) month notice prior to the expiration date of the then current audit certification, request Sky Touch not to undertake, and if so requested Sky Touch will not undertake, a retake audit for the Global Lighthouse Certification Audit.

3.7 Supplemental Certification Audit

3.7.1 In consideration of You paying the audit Service Fee, Sky Touch will carry out a supplemental audit of the Hotel provided:
(a) the Hotel has current Global Lighthouse Certification Audit certification issued by Sky Touch; or
(b) Sky Touch is in the process of conducting an audit activity under this Contract including pre-audit, audit, revisit audit or retake audit activities under the Global Lighthouse Certification Audit.

3.7.2 If Sky Touch is satisfied the Hotel meets the Minimum Standards of supplemental audit certification at that time, Sky Touch will issue a supplemental audit certificate for the Hotel which shall, subject to renewal under clause 3.8, remain valid only for an initial period of 12 or 24 months from the date of issue as specified in Table D.

3.7.3 If the supplemental audit carried out by Sky Touch does not to Sky Touch’s satisfaction meet the Minimum Standards at that time, Sky Touch will provide to You a report on the areas of non-compliance and prescribe a period of up to three months for You to, comply with all areas of non-compliance and notify Sky Touch of such compliance.

3.7.4 If You have complied with all areas of non-compliance of a supplemental audit and notified Sky Touch of such compliance within the prescribed period, in consideration of You paying the revisit supplemental audit Service Fee Sky Touch will conduct a revisit supplemental audit within one month of notification or such extended period as may be agreed by the Parties.

3.7.5 If at the conclusion of the revisit supplemental audit Sky Touch is satisfied You have complied with all areas of non-compliance, Sky Touch will issue a supplemental audit certificate for the Hotel which shall, subject to renewal under clause 3.8, remain valid only for the period nominated in Table D.

3.7.6 If at the conclusion of the revisit supplemental audit Sky Touch is not satisfied the Hotel complies with the areas of non- compliance or otherwise meets the Minimum Standards at that time, Sky Touch will NOT issue a renewal supplemental audit certificate for the Hotel. Sky Touch will provide to You a report on areas of non-compliance. Any dispute will be dealt with in accordance with clause 6.0.

3.8 Supplemental Certification Audit Renewal (Retake supplemental)

3.8.1 You authorise and request Sky Touch to undertake retake supplemental audits at the Hotel without need for further notification. Sky Touch will in consideration of the retake supplemental audit Service Fee, complete each retake supplemental audit prior to the expiration date of the then current supplemental audit certification issued by Sky Touch.

3.8.2 Sky Touch will render an invoice following completion of the retake supplemental audit. Invoices are payable within 14 days.

3.8.3 If Sky Touch is satisfied the Hotel meets the Minimum Standards of supplemental audit certification at the time of the retake supplemental audit, the then current supplemental audit certification for the Hotel will be extended for a further period of either 12 months or 24 months as nominated in Table D or otherwise agreed to by the Parties by an exchange of signed notifications in writing.

3.8.4 If the retake supplemental audit carried out by Sky Touch does not to Sky Touch’s satisfaction meet the Minimum Standards at that time, Sky Touch will provide to You a report on the areas of non-compliance and prescribe a period of up to three months for You to, comply with all areas of non-compliance and notify Sky Touch of such compliance.

3.8.5 If You have complied with all areas of non-compliance of a retake supplemental audit and notified Sky Touch of such compliance within the prescribed period, in consideration of You paying the revisit supplemental audit Service Fee Sky Touch will conduct a revisit supplemental audit within one month of notification or such extended period as may be agreed by the Parties.

3.8.6 Subject to clause 3.8.7, if at the conclusion of the revisit supplemental audit Sky Touch is satisfied You have complied with all areas of non-compliance, Sky Touch will issue an supplemental audit certificate for the Hotel which shall, subject to further renewal under this clause 3.8, remain valid for the period referred to in clause 3.8.3.

3.8.7 If at the conclusion of the revisit supplemental audit Sky Touch is not satisfied the Hotel complies with the areas of non- compliance or otherwise meets the Minimum Standards at that time, Sky Touch will NOT issue a renewed supplemental audit certificate for the Hotel. Sky Touch will provide to You a report on areas of non-compliance. Any dispute will be dealt with in accordance with clause 6.0.

3.8.8 Notwithstanding clause 3.8.1, You may by giving not more than three (3) months’ notice and not less than one (1) month notice prior to the expiration date of the then current supplemental audit certification, request Sky Touch not to undertake, and if so requested Sky Touch will not undertake, a retake supplemental audit.

3.8.9 Sky Touch will render an invoice following completion of the retake supplemental audit. Invoices are payable within 14 days.

3.9. Assessment Services

3.91.1 The parties will agree on details for delivery of assessment services by an exchange of signed letters in writing, which will be subject to these Terms and Conditions. To the extent of any inconsistency the order of precedence will be the agreed terms and conditions of the exchanged signed letters in writing, Schedule then the Terms and Conditions.

3.9.2 Unless otherwise agreed in accordance with clause 2.9.1, in consideration of You paying the assessment Service Fee and providing to Sky Touch information and material requested by Sky Touch to Sky Touch’s satisfaction, Sky Touch will provide the assessment services referred to in Table F by the service delivery date specified within Table H.

3.9.3 Invoices are payable within 14 days.

3.10 No Warranty

3.10.1 Sky Touch does not warrant that the Hotel will:
(a) Experience a reduction in the number or degree of severity of security incidents; or
(b) Not experience an increase in the number or degree of severity of security incidents,
after Sky Touch has conducted any audit activity under this Contract including pre-audit, audit, revisit audit or retake audit activities under the Global Lighthouse Certification Audit and/or Supplemental Certification Audit.

3.10.2 To the full extent permitted by law, and except as expressly provided by this Contract, all terms, conditions, warranties, representations whether express, implied, statutory or otherwise are excluded.

4. Payment and GST (Good and Service Tax)

4.1 Payment of Service Fee and Expenses

4.1.1 You must pay the Service Fee and Expenses in accordance with Table F of the Schedule and this clause 4.1.

4.1.2 Unless Expenses are specified in the Schedule to be payable in advance, You will reimburse Sky Touch for all Expenses, after the Expenses have been incurred by Sky Touch or it’s Contractors.

4.1.3 Airfare and related travel Expenses specified in Table F of the Schedule are provided as estimates only based on economy class airfares of Sky Touch’s choice of airline, travel hours and travel route.

4.1.4 Sky Touch may, at its sole discretion, for any reason whatsoever and without notification, change its choice of airline, travel hours, and travel route and incur additional airfares and related travel Expenses in relation to provision of the Services.

4.1.5 Actual airfare and related travel Expenses will be payable by You within 14 days of invoicing, notwithstanding such Expenses may exceed the estimated amount for such Expense or be an Expense not previously estimated.

4.1.6 You may arrange and meet the costs of airfares and related travel Expenses for provision of the Services in advance with the prior written consent of Sky Touch, which it may refuse.

4.1.7 Invoices are payable within 14 days.

4.2 Interest on late payments

4.2.1 If an amount due and payable by You to Sky Touch remains unpaid You will pay simple interest on the daily balance of the unpaid amount, calculated using the commercial overdraft rate of the Commonwealth Bank, Australia prevailing at time of payment.

4.3 Alteration of Service delivery dates

4.3.1 If You require a date specified in Table E of the Schedule for delivery of any Service to be changed, Sky Touch may charge a fee for You changing such date, including an administrative charge for time spent changing travel arrangements and other loss and expense caused or incurred by Sky Touch by the change and such amount will be due and payable within 14 days of invoicing.

4.4 Cancellation charges

4.4.1 If a Service is cancelled by You Sky Touch may charge the cancellation fee specified in Table H without further notification and such amount will be due and payable within 14 days of invoicing.

4.5 GST

4.5.1 All monetary amounts specified in this Contract are exclusive of any GST.

4.5.2 If this Contract or any supply under or in respect of this Contract is or becomes subject to GST, and if the recipient of the consideration is liable to GST in relation to any supply under this Contract, then to the extent that GST is not already clearly specified as included in the amount payable for the particular supply made under or in respect of this Contract, the Parties agree that the amount payable for the supply shall be adjusted by the amount of the GST.

4.5.3 Each Party agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the other Party to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Contract or in respect of any supply under this Contract.

5. Subcontractors

5.1 Use of subcontractors

Sky Touch may use subcontractors to undertake the whole or any part of the Services.

6. Problems or disputes

6.1 A Party to this Contract must not commence legal proceedings against another Party to this Agreement, unless that Party wishing to commence proceedings has complied with clauses 6.2 – 6.6. Clauses 6.2 – 6.6 shall not apply where a Party seeks urgent interlocutory or equitable relief from a Court.

6.2 When a Party claims that a dispute has arisen under this Agreement, that Party must serve written notice of that dispute on each other Party.

6.3 Following the notification of a dispute pursuant to clause 6.2, the Parties must each, within three days; appoint a representative to resolve the dispute. The appointed representative of a Party must:
(a) have authority to resolve the dispute in all respects, and to bind the Party, which the appointed representative represents, to any resolution of the dispute; and
(b) use their best endeavours to resolve the dispute.

6.4 If a dispute has not been resolved within 30 days of the first notification of the dispute, or such further period as the Parties or the representatives appointed pursuant to clause 6.3 shall allow, those representatives must refer the dispute to mediation by a mediator to be appointed in accordance with clause 6.5.

6.5 The mediator shall be appointed by agreement between the Parties, within a period of 14 days from the referral of the dispute to mediation. Failing such appointment within such time, the mediator may be chosen and appointed by the President for the time being of the Queensland Law Society on application by any Party.

6.6 If the dispute is not resolved by way of mutual agreement on mediation within 21 days after appointment of a mediator (or such longer time as the Parties may agree), then any Party may commence action in an appropriate court.

6.7 Pending the resolution of the dispute under this clause 6.0, or pending termination of this Contract, each Party must continue to perform its obligations under this Contract.

7. Privacy and confidentiality

7.1 Subject to clause 7.3, a Party must not without the prior written consent of the other Party, disclose any Confidential Information of the other Party to a third party.

7.2 In giving written consent to the disclosure a Party may impose such conditions as it thinks fit, and the other Party agrees to comply with those conditions.

7.3 The obligations on each Party under clause 7.1 will not be taken to have been breached to the extent that Confidential Information of the other Party is:
(a) Disclosed by a Party to its legal or financial advisors and its employees and the Party’s employees, on a need to know basis, solely in order to comply with the obligations, or to exercise rights, under this Contract; or
(b) Authorised or required by law to be disclosed.

7.4 Sky Touch will only email marketing material to clients who give us permission to do so. By agreeing to these Terms and Conditions You give us this permission. If Sky Touch sends You an email other than one containing factual information, an opt-out option will be available in the email.

7.5 Subject to clauses 7.4 and 7.6, Sky Touch will not share any personal details of Your officers, employees, advisers, contractors or agents including email and phone, with any third party except as required on a needs to know basis for the provision the Services or by law. Sky Touch will not sell, trade or rent any such personal details to any third party.

7.6 Personal details of Your officers, employees, advisers, contractors or agents may be provided to a subcontractor of Sky Touch, where applicable, for the purpose of provision of the Services. By agreeing to these Terms and Conditions you give us this permission.

8. Intellectual property

8.1 Nothing in this Contract affects Intellectual Property Rights in any Existing Material.

8.2 Intellectual Property Rights in Contract Material vests in Sky Touch immediately upon its creation.

8.3 Sky Touch grants to You, a non-exclusive, non-transferable, royalty free licence to use security audit certificates issued by Sky Touch as part of the Contract Material for Your own corporate purposes.

8.4 You acknowledge that Sky Touch may cite or refer to the Hotel and any Global Lighthouse Certification or Supplemental Certification for the Hotel including using the name, logo and photographs of the Hotel and a link back to the Hotel website on Sky Touch websites and on Sky Touch promotional material. Sky Touch will provide to You a reasonable opportunity to review and amend the information that will be cited or referred prior to publication.

9. Indemnity, Release and Insurance

9.1 You (the “Indemnifying Party”) hereby indemnify and agree to keep indemnified, Sky Touch, its officers, employees, contractors, agents and representatives (the Indemnified Party”) from and against any and all liability, loss, damage, cost or expense (including reasonable legal fees) that the Indemnified Party may suffer, incur or sustain as a result of:
(a) Any unlawful or negligent act or omission of the Indemnifying Party or any of its officers, employees, contractors, agents or representatives in connection with the performance of this Contract or in the course of undertaking a particular Service; or
(b) Any breach of this Contract by the Indemnifying Party or any of its officers, employees, agents, contractors or representatives.

9.2 The liability of the Indemnifying Party under clause 9.1 shall be reduced by the extent to which the Indemnified Party contributed to the liability, loss, damage, cost or expense in respect of which it seeks indemnity.

9.3 Subject to clause 9.5, the liability of Sky Touch arising under and/or in connection with this Contract and/or provision of the Services shall exclude any liability for any loss of profit, revenue, goodwill, actual or anticipated savings or business opportunities, damage to reputation whether such losses are direct (losses arising naturally from a breach of this Contract) or indirect or consequential (losses reasonably contemplated by the Parties at the time of making this Contract to be a probable result of a breach of this Contract)and any indirect or consequential loss.

9.4 Subject to clause 9.5, the liability for any unlawful or negligent act or omission of Sky Touch or any of its officers, employees, agents or representatives in connection with the performance of this Contract or in the course of undertaking a particular Service shall not exceed $5 Million.

9.5 Where any Act of Parliament implies in this Contract any term, condition or warranty and that Act avoids or prohibits provisions under a Contract which exclude or modify the operation of such term, condition or warranty, such term, condition or warranty is deemed to be included in this Contract. However, if permitted by law, Sky Touch’s liability for any breach of such term, condition or warranty will be limited at Sky Touch’s option to (a) supplying the Services again; or (b) paying the reasonable cost of having the Services provided again.

9.6 Sky Touch will not be liable for any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect to goods recommended to You by Sky Touch and supplied by a third party.

9.7 Sky Touch accepts no liability for any failure or delay in complying with the Terms and Conditions where such failure or delay is due to circumstances beyond Sky Touch’s reasonable control.

9.8 You warrant that You will hold and maintain for the Term of the Contract and for a period of six year after the Contract has ended, with an insurer that is authorised and licensed to operate in the country of the Hotel: (a) all insurance policies required to be held by You by law in the country of the Hotel, and (b) adequate amounts of public liability and professional indemnity insurance applicable to the country of the Hotel.

10. Termination

10.1 This Contact may be terminated without cause by either Party giving to the other Party not less than two months notice in writing prescribing the date of termination.

10.2 Either Party may terminate this Contract if the other Party: (a) has breached a provision of the Contract and failed to remedy the breach within 30 days after receiving written notice from the notifying party to rectify the breach; (b) breaches a material provision of this Contract where that breach is not capable of remedy; (c) becomes insolvent or bankrupt, goes into liquidation, has a receiver or a receiver and manager appointed, has a mortgagee go into possession of any of its assets, becomes subject to any form of external administration, enters into an arrangement with its creditors or otherwise takes advantage of any laws in force in connection with insolvent debtors, or is wound up voluntarily or involuntarily; (d) commits any fraudulent, illegal, defamatory or offensive act or breaches any third party intellectual property rights; or (e) uses any the Services in a manner which is contrary to any laws, rule or regulations applicable to the Hotel and its activities.

10.3 Termination of this Contract does not affect any accrued right or remedies of a Party.

10.4 If this Contract is terminated pursuant to clause 10.1: (a) You will be liable to pay Sky Touch for: (i) the Services rendered before the effective date of termination; and (ii) reasonable costs incurred or committed to by Sky Touch directly attributable to the termination; and (b) Sky Touch will deliver to You any audit reports which exist at the effective date of termination that You would have been entitled to receive under this Contract had it not been terminated.

11. Notices

11.1 All notices and other formal communications required pursuant to this Contract must be delivered by hand, post, faxed or emailed to the addresses set out in the Schedule, or other address as notified in writing by the Party from time to time.

11.2 Except that a delivery by hand, fax or email received after 5.00pm local time of the receiving Party will be deemed to be given on the next Business Day, notice will be deemed to be given:
(a) if posted, within the ordinary course of the post;
(b) if by hand, on the date of delivery;
(c) if by fax ,on the date the sender’s facsimile machine notes a complete and successful transmission; and
(d) if emailed, on the date recorded on the device from which the Party sent the email, unless the sending Party receives an automated message that the email has not been delivered.

12. Force Majeure

12.1 If either Party is wholly or partially precluded from complying with its obligations under this Contract by reason of Force Majeure, then the obligations to perform in accordance with these conditions will be suspended for the duration of the Force Majeure.

12.2 As soon as practicable after an event of Force Majeure arises, the Party affected by the Force Majeure must notify the other Party of the extent to which it is unable to perform its obligations under this Contract.

12.3 If the duration of the Force Majeure continues for more than three months either Party may terminate provision of the particular Services and/or this Contract.

12.4 Subject to clause 12.3 at the end of the duration of the Force Majeure each Party will resume its performance under this Contract.

12.5 For the purposes of this clause, “Force Majeure” means anything outside the reasonable control of a party, including but not limited to, acts of God, fire storm, earthquake, explosion, accident, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labour dispute, labour shortage, transportation embargo, failure or delay in transportation, act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency.

13. Jurisdiction/Applicable Law

13.1 These Terms and Conditions are governed by and construed in accordance with the laws of Queensland, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Queensland and the courts of Australia.

14. Assignment

14.1 You may not assign or transfer your rights or obligations under these Terms and Conditions without the prior consent in writing from Sky Touch.

15. No Adverse Construction

15.1 In the interpretation of this Contract or any part of it, no rule of construction shall apply to the disadvantage of any Party on the basis that that Party:
(a) Prepared this Contract or any part of it; or
(b) Seeks to rely on this Contract or any part of it.

16. Variation

16.1 The Contract, of which the Terms and Conditions are a part of, can only be validly altered or varied in writing signed by both Parties.

17. Survival of Clauses

17.1 The operation of clauses 1, 3.9.1, 3.9.2, 4.2.1, 4.4.1, 4.5, 6, 7, 8, 9, 10.3, 10.4, 11, 13, 15 and 17 and any other provision which expressly or by implication from its nature is intended to continue, survive the expiration or earlier termination of this Contract.

18. Miscellaneous

18.1 This Contract may be signed in any number of counterparts (whether in original or facsimile form) and all those counterparts together make one instrument.

18.2 Each Party must bear its own costs of preparing and executing this Contract.

18.3 Part or all of any provision of this Contract that is illegal or unenforceable may be severed from this Contract and the remaining provisions of this Contract continue in force.

18.4 No rights under the Contract will be deemed to be waived except where the waiver is in writing and signed by both Parties. A waiver by a Party will not prejudice that Party’s rights in respect of any subsequent breach of this Contract. Any failure by either Party to enforce any clause of this Contract, any forbearance, delay, or indulgence generated by either Party to the other will not be construed as a waiver of rights under this Contract.

18.5 The relationship of the Parties under this Contract is one of principal and contractor and neither Party is by virtue of the Contract in partnership or joint venture with the other Party and neither Party will represent or allow itself to be represented as a partner or joint venturer of the other.