In these Terms and Conditions, unless the context or subject matter otherwise require:
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
Contract means this legally binding agreement entered between you and MyPath for the supply of Training comprising these Terms and Conditions and any Quotation delivered by MyPath to you for the supply of that Training;
Debt means any and all moneys due and owing by you to MyPath whether in relation to one or more Contracts and includes, without limitation, any Overdue Amounts;
Equipment means any equipment, plant, machinery, tools and/or spare parts that a Trainee comes into contact with during his or her Training;
MyPath (we/us/our) means Ashtrail Pty Ltd ACN 057 404 074 and its servants and agents;
Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, promise, agreement, covenant, commitment, duty, undertaking or liability;
Overdue Amount means any amount of money that remains unpaid when Training commences;
Parties means you and MyPath;
Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth);
Quotation means a verbal or written offer from MyPath to you for the supply of Training to you;
Right means any legal, equitable, contractual, statutory or proprietary right, chose in action, power, authority, benefit, privilege, remedy, or discretion;
Special Condition means any condition set out in writing in signed by both parties that apply to the Contract;
Terms and Conditions means the terms and conditions set out in this document and includes the Special Conditions;
Client/Trainee (you/your) means the person or entity to whom Training is provided from time to time and that person or entity’s servants and agents;
Training means any training, tuition, instruction, demonstration or examination provided by us to you including, without limitation, that required for:
(i) the licenced, qualified , competent or safe operation of any equipment, plant, machinery, tools or motor vehicle;
(ii) the licenced, qualified, competent or safe carrying out of tasks or the supervision thereof; or
(iii) managing a business,
within the transport, construction, waste management, mining or other industry and whether forming part of an educational course, traineeship, apprenticeship or otherwise.
When you enter into a Contract with MyPath you agree that:
(a) you have read and understood these Terms and Conditions and you agree to be bound by them;
(b) these Terms and Conditions apply to every transaction for the supply of Training; and
(c) any variation to a Contract or these Terms and Conditions must be made with the consent of both Parties and must be in writing and signed by both Parties.
(a)A Quotation may be delivered by MyPath to you for the supply of Training to you.
(b)If you are an entity, you must deliver a Purchase Order to MyPath before accepting a Quotation and before commencement of the Training identified in the Quotation.
(c)A Quotation will lapse if:
(i) thirty days after the Quotation has been delivered to you, the Quotation has not been accepted by you; or
(ii) after sixty days of the Quotation being accepted by you, the Training identified in the Quotation has not commenced, at which point MyPath is entitled to review its Quotation at its discretion.
(d) You may accept a Quotation by:
(i) written notice to MyPath; or
(ii) verbally communicating your acceptance to MyPath personnel.
(a) No other terms or conditions apply to a Contract between the Parties.
(b) These Terms and Conditions and the details contained in a Quotation delivered for insertion in MyPath’s approved Purchase Order are the only terms that apply to the Contract.
(c) You fully indemnify and hold MyPath harmless from any Claim based on terms and conditions outside of these Terms and Conditions.
(a) Every Client/Trainee must:
(i) act in accordance with all directions and instructions given to him or her by us;
(ii) not remove or allow the removal of our Equipment or property from our premises without our prior written consent;
(iii) not alter, make any addition to, deface or erase any identifying mark, plate or number on our Equipment or property;
(iv) ensure that all safety and operating instructions and notices are observed and are not defaced or removed from our Equipment or property;
(v) do all things reasonably necessary to ensure the safety of our personnel and other persons attending Training;
(vi) do all things reasonably necessary to maintain the condition of our Equipment and property;
(vii) use our Equipment and property for purposes that are lawful and for which they are designed only;
(viii) verbally notify us within 15 minutes if any part of our Equipment becomes damaged, bogged, breaks down, requires inspection or repair or for any reason can no longer be used;
(ix) immediately cease the use of our Equipment and take all reasonable steps to prevent injury to any person or damage to our Equipment or property if the Equipment becomes damaged, bogged, breaks down or appears to require inspection or repair; and
(x) not repair or attempt to repair our Equipment without our prior written consent.
(b) You must provide a suitable training room or similar for the supply of any classroom-based Training at your premises or jobsite.
(c) You will be liable for any costs incurred or damages suffered by MyPath as a result of any Training provided to you or breach of any Obligation by a Trainee.
(a) You must pay the amount stated in any invoice issued by MyPath under the Contract before Training commences unless you have made a credit application to MyPath and a Credit Acceptance Letter has been issued to you by MyPath .
(b) Where a Quotation allows for a certain number of persons to attend Training and the number of persons that actually attends for Training exceeds that certain number allowed for, MyPath may adjust the amount of that Quotation on a pro rata basis and invoice you for the adjusted amount without your approval.
(c)? If you fail to pay an invoice in accordance with paragraph (a), the unpaid portion of the amount of that invoice becomes an Overdue Amount.
(d) You do not have any right to set-off an amount against a Debt or Overdue Amount and any Claim you believe that you have against MyPath for monetary remuneration shall not limit your Obligations to pay a Debt under this Contract.
(e) MyPath may charge interest at the rate of 4% per month on any Overdue Amount until that Overdue Amount is paid.
If you have made a credit application to MyPath, the payment terms stipulated in your “Credit Acceptance Letter” will apply until such time as MyPath revokes your entitlement to credit which may occur at any time completely at MyPath’s discretion. These terms will be 30 days in the event no payment terms are supplied in a “Credit Acceptance Letter”.
8.LIMITATION OF LIABILITY
(a) If you have a genuine grievance with any Training you must notify MyPath in writing within three days after that Training is provided. MyPath will then consider the merits of your claim and at its sole discretion:
(i) provide a partial or full refund for that Training;
(ii) provide further Training; and/or
(iii) decline to provide any remedy contained in this clause.
(b) MyPath expressly disclaims, to the fullest extent permitted by law, all express, implied and statutory warranties.
(c) Where any statutory warranties may not be excluded, MyPath’s liability is limited to an amount equal to the amount invoiced by MyPath for the Training.
(d) MyPath is not obliged to provide any refund or further Training to you where you cancel Training after Training has commenced or fail to attend any scheduled Training for any reason.
(e) MyPath will not be liable for any damage, loss, expense, charge or cost incurred by you as a consequence of:
(i) any delay by MyPath to supply Training to you;
(ii) termination of a Contract by you or us;
(iii) cancellation of Training by you or us;
(iv) any injury or death to you or any other person; and/or
(v) any damage to Equipment or property.
(f) You must give MyPath a minimum of 72 hours’ notice for cancellation of Training. You will be liable to pay the amount equal to 50% of the amount that would have been payable under a Quotation had you not cancelled the Training, together with any travel costs incurred by MyPath as a result of late cancellation. All refunds or credit claims must be made within a 90 days period from the date of the cancelled training.
(g) MyPath in no way warrants the appropriateness of any Training for any specific purpose. It is the Trainee’s responsibility to ensure that any Training will accomplish what the Trainee wishes it to accomplish.
(h) You must fully indemnify MyPath against any Claim that becomes due and payable by MyPath under a Contract or as a result of entering into a Contract and arises from or in connection with:
(i) any injury or death to you or any other person; and/or
(ii) any damage to or theft of Equipment or property.
(a) Termination by MyPath
(i) MyPath may terminate a Contract immediately upon notice to you in any form at any time and for any reason.
(ii) MyPath only liability to you upon termination of the Contract without reason is to refund to you any advance payments made for Training not yet taken place, less any Debt owing to MyPath .
(b) Termination by you
(i) You may terminate a Contract upon written notice to MyPath sent by registered post to MyPath’s head office at 38 Prairie Road, Ormeau QLD 4207;
(ii)Upon your termination of a Contract, you will still be liable to pay MyPath jor any Overdue Amounts and any amount that would have been payable pursuant to a Quotation had you not terminated the Contract.
Except as permitted under these Terms and Conditions, MyPath will not, without your consent, use your Personal Information in a way that breaches the Privacy Act 1988 (Cth).
12. ILLEGALITY AND SEVERABILITY
So far as possible a Contract will be construed so as not to be invalid, illegal or unenforceable but if any provision on a proper construction is illegal, invalid or unenforceable:
(a) that provision will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable and in such manner as may be reasonable in all the circumstances so as to give it a valid operation of a partial character; or
(b) if the provision or part of it cannot be read down in a manner that will give it a valid operation, then the provision or relevant part will be deemed to be void and severable and the remaining provisions of this document will not in any way be affected or impaired.
You agree that the laws of Queensland apply to a Contract regardless of your business, residential location, the address for supply of Training or any other factor.
If the Client/Trainee is a corporation, in consideration for MyPath agreeing to provide Training to the Client/Trainee, the parties listed either at the foot of these Terms and Conditions or within the Credit Application unconditionally and irrevocably guarantee to MyPath the Clients/Trainee’s performance of the Clients/Trainee’s Obligations under the Contract and the payment of all monies owing at any time by the Client/Trainee to MyPath , whether owing under the Contract or otherwise.