Terms and Conditions

HANDS OF THE WORLD PTY LTD (ABN 57 894 909 854), (HoW)

BACKGROUND

A. HoW is a specialised travel advisory service for Deaf and hard of hearing clients and provides travel advice, arrangements and interpreting (Services).

B. The Tourer engages HoW to provide its Services.

OPERATIVE PART

1. Interpretation

This Agreement is governed by the laws of New South Wales and the Parties submit to the non-exclusive jurisdiction of the courts of that State.

In the interpretation of this Agreement:

(a) defined terms appear as capitalised and bold;

(b) references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;

(c) words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders and references to documents or agreements also mean those documents or agreements as changed, novated or replaced;

(d) grammatical forms of defined words or phrases have corresponding meanings;

(e) the Parties must perform their obligations on the dates and times fixed by reference to the capital city of New South Wales;

(f) reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

(g) if the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;

(h) references to a ‘Party’ are intended to bind their heirs, executors, administrators, successors and assigns; and

(i) obligations under this Agreement affecting more than one Party bind them jointly and each of them severally.

2. Appointment, Itinerary & Price

(a) The Tourer appoints HoW to provide the Services at the agreed price, subject to 2(c)(v) below, as invoiced (Invoice) (together, Price).

(b) In consideration of the Services, the Tourer will pay the Price to HoW by instalments of:

(i) 50% of the Price on signing and submitting this Agreement (Deposit); and

(ii) the remaining 50% 90 days before the Services commence (Commencement), (together, Instalments).

(i) the Price is reasonable, on account of the Services;

(ii) the Instalments are necessary for HoW to make appropriate prior arrangements for the proper provision of its Services;

(iii) the failure to make any Instalment entitles HoW to immediately cancel this Agreement and apply its Termination Fee (see clause 10(d)); and

(iv) payment of both Instalments is only for the Services identified in HoW’s Invoice(s); and

(v) The Price is subject to change.

3. Term of Agreement

(a) This Agreement commences on receipt by HoW of:

(i) payment by the Tourer of the first Instalment (50% of the Price); and

(ii) this Agreement, signed by the Tourer – which the Parties agree can be electronically signed.

(b) This Agreement ends on the earlier of:

(i) the provision of the Services, unless frustrated by Third Party Services and/or Adverse Events; or

(ii) the Termination of this Agreement under clause 10.

4. Tourer’s Acknowledgments

The Tourer acknowledges and agrees that:

(b) the Services require HoW to procure third-party services (such as accommodation, flights, transportation and meals) (Third Party Services);

(i) it has no control over Third Party Services; and

(ii) the Tourer will not hold HoW responsible for any Third Party Services;

(d) HoW’s Services primarily involve travel, which can be affected by things beyond HoW’s control, such as adverse weather/environmental conditions/natural disasters, political/civil/industrial unrest, health factors including pandemics, cancelled flights and/or accommodation (Adverse Events). The Tourer:

(i) will assist HoW with all things reasonably necessary to overcome any Adverse Events; and

(ii) will not hold HoW responsible for any Adverse Events.

5. Provision of Services

HoW will:

(a) do all things necessary to ensure that the Services are provided to the reasonable satisfaction of the Tourer;

(b) exercise all due care and skill in providing the Services;

(d) comply with its obligations in relation to ‘personal information’ under the Privacy Act 1988 (Cth) and the Privacy and Personal Information Protection Act 1998 (NSW),

(e) endeavour to maintain a safe travelling environment;

(f) ensure that the Services are carried out in a proficient manner by properly trained, experienced and qualified staff;

(g) comply with all legal requirements as may from time to time apply to the provision of the Services; and

(h) perform and fulfil the obligations in this Agreement.

6. HoW’s Warranties

HoW warrants that at all times it:

(a) is a member of the Australian Travel Industry Association (ATIA);

(b) is accredited with the Australian Travel Agent Accreditation Scheme (ATAS);

(c) operates at all times in compliance with the Australian Consumer Law and in accordance with ATAS’ Charter and Code of Conduct;

(d) holds certification in Auslan, including:

(i) Minimum CertificateIV; and

(ii) Certified Interpreter (Auslan) with the National Accreditation Authority for Translators and Interpreters.

(e) ascribes to the Tour Guides Australia Code of Conduct;

(f) holds current insurances necessary to properly provide its Services; and

(g) is trained to meet and discharge all work, health and safety obligations in providing the Services.

7. Tourer’s Warranties and Obligations

The Tourer:

(a) warrants it has authority to enter this Agreement;

(b) warrants it has read, understood and agrees to be bound by this Agreement;

(c) warrants it will have a valid, machine-readable passport – with at least six (6) months validity, beyond the last day of its planned stay, visas and re-entry permits;

(d) warrants it will take out travel insurance from their departure date and valid for the whole duration of travel, which covers personal accident, death, medical expenses and repatriation – with minimum cover of AUS$300,000.00 and provide proof of insurance seven (7) days prior to travel;

(e) agrees it is responsible for all correct travel documents – such as airline tickets, accommodation and tour vouchers and checked-baggage;

(f) agrees it alone is responsible for all baggage items;

(g) warrants it has considered taking out personal insurances and such insurance is its sole responsibility;

(h) warrants it is physically capable of undertaking the Services and has all necessary vaccinations/immunisations ;

(i) agrees it will carry out any direction of HoW for the protection and safety of people and property;

(j) agrees it will act, at all times, in accordance with generally accepted standards of good and proper conduct and behaviour; and

(k) agrees it will respect the owners/inhabitants of all places visited and their cultures, beliefs and traditions.

8. Variation of Services

(a) If all Services cannot be provided by HoW – including on account of Third Party Services and/or Adverse Events or the Tourer requests additional services or changes to the Services, the Parties will negotiate in good faith to agree upon either a reduction or increase of the Price, as appropriate (Variation).

(b) If the Parties cannot agree upon a Variation within five (5) business days, the matter will be dealt with in accordance with the dispute resolution provisions at clause 12 of this Agreement.

9. Special Conditions

The Tourer will inform HoW of any special requirements – including any security concerns.

10. Intellectual Property

(a) The Tourer acknowledges and agrees that all intellectual property, designs and moral rights in any material disclosed, arising or created under this Agreement (Intellectual Property), is the exclusive property of HoW and that it will not use, disclose or otherwise exploit them – by any means.

(b) The obligations in relation to Intellectual Property continues after completion of the Services and is enforceable by HoW – including by way of injunctive relief, without notice.

11. Confidentiality

(a) The Parties agree that this Agreement is confidential and it cannot be disclosed to any third party without HoW’s prior written consent (Confidentiality).

(b) This Confidentiality provision continues after Completion and is enforceable by HoW – including by way of injunctive relief, without notice.

12.Termination

Termination for Convenience

(a) Without affecting any of its other rights under this Agreement, HoW can terminate this Agreement at any time, or any part of it, after seven (7) days’ notice to the Tourer.

Immediate Termination

(b) HoW can terminate this Agreement immediately by notice for:

(i) breach of any of the essential terms of this Agreement, including the Tourer’s:

(A) warranties, agreement and obligations at clause 5;

(B) obligations in relation to Intellectual Property at clause 8; and/or

(together, Essential Terms); or

(ii) if the Tourer fails to pay the Price or any of the Instalments in accordance with clause 2(a);

(iii) if the Tourer breaches a material term that it fails to remedy it within five (5) days;

(iv) if Third Party Services are changed, suspended or cancelled, rendering this Agreement incapable of performance; or

(v) if Adverse Events make this Agreement incapable of performance

(c) If HoW terminates its Services immediately under this clauses 10(b)(i), (ii) and/or (iii), all costs arising from termination will be the Tourer’s sole responsibility and it indemnifies HoW in full in respect of all and any such costs.

Termination Fees

(d) Excluding those costs at clauses 10(b)(iv) and (v), if this Agreement is terminated, the Tourer acknowledges HoW will incur costs which it is entitled to retain the Deposit as follows:

(i) more than 42 days before Commencement: 10%

(ii) between 41 and 30 days before Commencement: 30%

(iii) between 20 and 7 days before Commencement: 70%

(iv) six (6) days or less before Commencement: 100%

Reservation of Rights

(e) Any payment made on termination is made on account and each Party otherwise reserves their rights.

13. Liability & Indemnity

Limitation of Liability

(a) The Tourer agrees that under this Agreement:

(i) HoW is not liable for any personal or financial loss, injury or damage it might incur; and

(ii) any loss, injury or damage it might incur, is limited to the Price – subject to Variation but, only in accordance with clause 6.

Indemnity

(b) The Tourer agrees that it will indemnify HoW for any loss it incurs under this Agreement, caused or contributed by it.

Release

(c) In extension of subclause (b) above, the Tourer releases HoW for any loss it incurs under this Agreement, caused or contributed by it.

14. Assignment

(a) This Agreement is personal to the Tourer and cannot be assigned, without the prior written consent of HoW – such consent will not be unreasonably withheld.

(b) HoW may assign, transfer or deal with its interests under this Agreement, without the Tourer’s approval.

15. Dispute resolution

(a) If a dispute arises, before any proceeding is commenced, the Party claiming that a dispute has arisen (Dispute) must give five (5) days’ notice to the other Party setting out:

(i) the reasons for the Dispute; and

(ii) proposing terms of compromise,

(together, Dispute Notice).

(b) If the Dispute is not resolved within 14 days after service of the Dispute Notice, then it must be referred by the Parties to arbitration on terms under the Commercial Arbitration Act 2010 NSW (Arbitration) and the costs of the Arbitration shall be paid equally by the Parties.

(c) Despite subclauses (a) and (b) above, HoW must continue to provide the Services and perform its obligations under this Agreement pending resolution of the Dispute.

(d) Nothing in this clause prevents either Party from seeking urgent interlocutory relief.

16. Notices

A notice or other communication to a Party must be in writing and delivered to that Party, in one of the following ways:

(a) delivered personally; or

(b) posted to their address when it will be treated as having been received on the second business day after posting; or

(c) sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.

17. Relationship of the parties

The Parties acknowledge that this Agreement is intended as a contract of service and not any other relationship, in particular, that of employer and employee, principal and agent or the relationship of a partnership.

18. Consent to Provision of Personal Information

(a) The Tourer acknowledges that in providing the Services, HoW is required to provide the Tourer’s “personal information” (as defined under the Privacy Act 1988 (Cth)) to third parties.

(b) The Tourer consents to HoW providing its “personal information”, including by electronic means, to third parties but, only for the proper provision of the Services.

19. Counterparts & Exchange

This Agreement is executed electronically by the Tourer by:

(a) acknowledging electronically through HoW’s website that it has read, understood and agrees to its Short Form Tourer’s Agreement and this Long Form Services Agreement;

(b) paying HoW the Deposit; and

20. Jurisdiction

This Agreement is subject to the laws of New South Wales and the Parties submit to the non-exclusive jurisdiction of the Courts and Tribunals in that state.

21. Severability

Any part of this Agreement which is invalid or unenforceable can be severed, without affecting its remaining validity.

22. Variation

Any variation to this Agreement must be in writing and signed by both Parties.

23. Entire Agreement

This Agreement is the entire agreement between the Parties. It replaces any prior discussions, negotiations or arrangements in relation to its subject matter.