Coates Hire Operations Pty Limited (ACN 074 126 971) of Level 6, 241 O’Riordan Street, Mascot in the state of New South Wales (“Coates Hire Training Services”)
the Party identified as the Customer in a Booking Form (“the Customer”)
(together, referred to as the Parties)
A. Coates Hire Training Services engages in the business of supplying training services to its customers.
B. The Customer wishes to appoint Coates Hire Training Services to provide training services.
C. This Training Services Agreement sets out the terms and conditions upon which the training services will be provided by Coates Hire Training Services to the Customer.
NOW IT IS HEREBY AGREED AS FOLLOWS:
GENERAL TERMS AND CONDITIONS
In this Agreement:
ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Agreement means this Training Services Agreement together with any schedules and the Special Conditions.
Booking Form means the booking form completed by the Customer and accepted by Coates Hire Training Services setting out the specifics of the Customer and the agreed Course, Participant and Fees and other agreed details of the Services.
Business Day means any day that is not a Saturday, Sunday or public holiday in the state in which the Services are supplied.
Consequential Loss means any loss of profits, lost production costs, increased production costs, and any other damages which are not direct and which do not flow naturally from the relevant breach of this Agreement.
Consumer Guarantees means the consumer guarantees set out in the ACL.
Course means any course provided by Coates Hire Training Services as described in the Booking Form to a Participant and includes all training, advice and recommendations.
Course Content means all content and materials used in the delivery of a Course by Coates Hire Training Services including, but not limited to, handouts, slides, videos and other training materials.
Course Outcome means the outcome arising from a Participant completing a Course, including, but not limited to statements of attainment, certificates of competency, certificates of attendance, verification of competency, licences and cards.
Coates Hire Training Services’ Personnel means personnel engaged by Coates Hire Training Services to deliver the Services, including training contractors and Coates Hire Training Services employees.
Fees means the fees for the Services as set out in the Booking Form.
Intellectual Property means all industrial and intellectual property rights, whether protectable by statute, at common law or in equity, including, without limitation, all copyright, inventions, business processes, know- how, patents, designs (whether or not registrable), registered and unregistered trade marks, circuit layout designs and rights in relation to circuit layout designs, but excluding non-assignable moral rights and similar non-assignable personal rights of authors and producers. This definition includes, but is not limited to, any training materials or modules communicated under this Agreement.
Services means those training services which will be delivered by Coates Hire Training Services to the Customer under this Agreement and which are more fully described in the Booking Form.
Panel means the panel established in accordance with clause 11.
Participant means an individual who is nominated by the Customer to attend a Course.
Special Conditions means the terms and conditions set out in Schedule 1 of this Agreement.
Term means the term of this Agreement as set out in clause 3.
In this Agreement, unless the context indicates a contrary intention:
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) A reference to includes or including should be construed without limitation.
(e) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(f) A reference to a Clause, Schedule or Annexure is reference to a Clause of, or a schedule or annexure to, this Agreement, and a reference to a paragraph is to a paragraph of the same Clause or Schedule unless the context requires otherwise.
(g) A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.
(h) A reference to a Party to this Agreement or another agreement or document includes the Party’s successors, permitted substitutes and assigns (and, where applicable, the Party’s legal personal representatives).
(i) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(j) A reference to conduct includes an omission, statement and undertaking, whether or not in writing.
(k) A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement whether or not in writing and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind.
(l) A reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form.
(m) A reference to any professional body includes the successors of that body.
(n) A reference to a year, month, week or to a day is to a calendar year, month, week or day respectively.
(a) A reference to dollars and $ is to the Australian currency and all invoices and payments under this Agreement shall be in Australian dollars.
(b) A reference to Party is a reference to a Party to this Agreement.
(c) A reference to Coates Hire Training Services includes Coates Hire Training Services’ Personnel, unless specified otherwise.
The Customer agrees to engage Coates Hire Training Services to provide the Services and Coates Hire Training Services hereby accepts the engagement for the provision of the Services in accordance with the terms and conditions of this Agreement.
This Agreement shall come into effect from the Date the Customer agrees to these terms
4.1 Delivery of Services
Coates Hire Training Services agrees to provide all Services in accordance with the terms of this Agreement and warrants that:
(a) the Services will be provided in a thorough, professional and competent manner using that standard of care, skill and diligence, that would reasonably be expected from an experienced provider of similar Services in Australia;
(b) the Services are fit for the purpose for which they were designed; and
(c) Coates Hire Training Services’ Personnel are appropriately skilled and experienced to perform the Services.
4.2 Compliance with laws
Coates Hire Training Services will comply with all federal and state laws and regulations with respect to the provision of the Services.
5.1 The Customer acknowledges that:
(a) Coates Hire Training Services owns all Intellectual Property rights in the Course Content;
(b) no title in the Course Content passes to the Customer under this Agreement;
(c) the Course Content can only be used by Participants for the purpose of completing a Course; and
(d) the Customer may not reproduce any part of the Course Content without the prior written consent of Coates Hire Training Services.
6.1 Neither Party will be liable to the other party in any circumstances for any Consequential Loss.
6.2 The Customer is liable for and indemnifies Coates Hire Training Services against all claims, liability, loss, costs and expenses (including without limitation any legal costs or environmental losses, costs, damages or expenses) arising from the Services or from a breach of this Agreement by it or its employees, agents or contractors. The Customer’s liability will be reduced to the extent that any loss or damage is caused or contributed to by Coates Hire Training Services or by Coates Hire Training Services’ breach of the Agreement.
6.3 Notwithstanding any other provision of this Agreement, Coates Hire Training Services’ liability to the Customer for any claim for loss or damage made in connection with this Agreement (for contract, tort, under statute or otherwise) in respect of death, personal injury or damage to property is limited to the Fees paid by Customer pursuant to this Agreement.
6.4 Where Services supplied under this Agreement are subject to the ACL and any of the Consumer Guarantees apply, Coates Hire’s liability for breach of a Consumer Guarantee) in respect of those Services is, to the extent permitted, limited to either of the following at Coates Hire’s election:
(a) The supplying of the Services again; or
(b) The payment of the cost of having the Services supplied again.
6.5 Nothing in this Agreement excludes or limits any right, remedy, guarantee, term, condition or warranty implied or imposed by any legislation (including the Consumer Guarantees) which cannot lawfully be excluded or limited,
The Services are to be provided by Coates Hire Training Services in accordance with the dates nominated by the Customer and agreed by Coates Hire Training Services.
8.1 In addition to any duty or obligation imposed on Coates Hire Training Services under general law, Coates Hire Training Services shall ensure that it and its respective employees act in accordance with their responsibilities as contained in relevant health and safety legislation.
8.2 The Customer agrees that it, all Participants and its respective employees shall comply with all relevant Coates Hire Training Services policies and procedures while on Coates Hire Training Services premises.
9.1 If a dispute arises, the Parties must, prior to the initiation of any legal proceedings, use their best efforts in good faith to reach a reasonable and equitable resolution of the dispute.
9.2 If a dispute arises, the dispute must be referred to a representative of each Party for resolution by written notice specifying that it is a notice given under this clause giving full particulars of the nature and extent of the dispute.
9.3 If the dispute is not resolved within 10 Business Days of a referral in accordance with this clause, the dispute must be referred to a Panel for resolution. Each Party must nominate a senior representative for the Panel within 3 Business Days of the referral to the Panel in accordance with this clause.
9.4 The Panel will determine its own procedures for the resolution of a dispute. Unless otherwise agreed by the Parties, all discussions involving the Panel will be conducted on a without prejudice basis.
9.5 Decisions of the Panel may only be made by unanimous agreement of the members of the Panel.
9.6 Any decision of the Panel which is recorded in writing and signed by each member of the Panel is binding on the Parties.
9.7 Neither Party may commence legal proceedings unless the Parties have undertaken the processes set out in this clause and: those processes have failed to resolve the dispute; or one of the parties has attempted to follow these processes and the other party has failed to participate; or a Party is unhappy with a decision of the Panel.
9.8 Nothing in this clause prevents a Party seeking urgent injunctive relief or similar interim relief from a court.
9.9 Despite the existence of a dispute, the Parties must continue to perform their respective obligations under this Hire Agreement.
10.1 As compensation for the provision of the Services, the Customer agrees to pay Coates Hire Training Services the Fees.
10.2 The Customer agrees to pay all Fees in advance of receiving the Services.
10.3 Payment can be made by EFTPOS, credit card, money order or cheque.
10.4 Where payment is made by credit card, additional charges for credit card use shall apply.
10.5 Where payment is made by cheque, cheques should be made payable to Coates Hire Operations Pty Limited.
10.6 Coates Hire Training Services will issue invoices for Fees as tax invoices containing a full itemisation of the Fees
10.7 Unless otherwise expressly stated, all amounts payable for any supply under this Agreement are expressed to be exclusive of GST. If GST is payable on a taxable supply made by Coates Hire Training Services to the Customer under this Agreement, then the Customer will pay to the supplier an amount in respect of the GST in addition to any other consideration provided that Coates Hire Training Services provides the recipient with a “tax invoice” in accordance with the applicable legislation.
10.8 In this clause the terms “GST”; “supply”, “taxable supply” and “tax invoice” have the meanings respectively given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
11.1 Coates Hire Training Services takes the protection of the privacy of Participants seriously.
11.2 The Customer consents to Coates Hire Training Services collecting personal information supplied by the Customer with respect to Participants for the following purposes:
(a) for the fulfilment of functions associated with the supply of Training Services
(b) to enable Coates Hire Training Services to contact Participants for Course feedback;
(c) to enable Coates Hire Training Services to send out Course Outcomes to Participants;
(d) to market to the Customer and to maintain a client relationship with the Customer; and
(e) For the lodgement of data as required by law to relevant government/training bodies.
11.3 The Customer also consents to Coates Hire Training Services disclosing personal information provided to it by the Customer:
(a) to Coates Hire Training Services’ providers, contractors and affiliated companies from time to time to help improve and market Coates Hire Training Services’ Services to the Customer.
11.4 Coates Hire Training Services will take all necessary measures to prevent unauthorised access to or disclosure of Participants’ personal information. This personal information will be disclosed as required to the State Government authorised body and to Australian Skills and Quality Authority (ASQA). This information will not be disclosed to any other external agencies unless required or authorised by law.
11.5 Participants are able to access their training records from Coates Hire Training Services upon request.
12.1 Entire Agreement
(a) The terms and conditions contained in this Agreement and the terms of the Special Conditions constitute the entire agreement and supersede any other agreement or understanding between the Parties.
(b) In the event of any inconsistency between the terms of the Agreement and the terms of the Special Conditions, the terms of the Special Conditions shall prevail to the extent of that inconsistency.
(c) The Parties acknowledge that changing circumstances may require changes to this Agreement.
In the event of the invalidity of any part or provision of this Agreement, such invalidity shall not affect the enforceability of any other part or provision of this Agreement.
This Agreement cannot be amended except by an instrument in writing signed by the Parties and stating the Parties’ intention to amend this Agreement accordingly.
This Agreement and the rights contained herein are not assignable without the prior written consent of the other Party.
12.5 No waiver
The failure of either Party to exercise or the delay in exercising, any right, power or privilege available to it under this Agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise by that Party of any other right, power or privilege under this Agreement.
12.6 Force majeure
Failure or delay in performance of any obligation under this Agreement by either Party will not be deemed to be a breach of this Agreement if that failure or delay is due to any cause beyond the reasonable control and without the fault or negligence of that Party, but in order to excuse its default on this basis, a Party will notify the other of the occurrence of the cause as soon as it becomes aware, specifying the nature, particulars and expected duration thereof.
12.7 Governing Law
This Agreement is governed by the applicable law of the state or territory in which the Services are delivered, and the Parties agree to submit to the exclusive jurisdiction of the courts of that state or territory.
SCHEDULE 1 – SPECIAL CONDITIONS
Administration Fee means 20% of the Course Fee.
Course Fee means the fee payable by the Customer with respect to a particular training course.
High Risk Licensing means a licence required by each state WHS regulator to operate certain items of equipment.
All Participants must have a basic level of literacy and numeracy skills. If assistance in these areas is required please contact Coates Hire Training Services.
3.1. Competencies are assessed throughout each Course and each Course includes an assessment.
3.2. If a competency is not achieved at the initial assessment, Participants are given the opportunity to be reassessed at a time agreed between the Parties.
The Customer must ensure that each Participant is made aware of the following requirements, and agrees to comply with the following:
a) Coates Hire Training Services accepts no responsibility for damage or loss of any property left on its premises by Participants.
b) Coates Hire Training Services recommends that Participants carry their personal valuables at all times, and Coates Hire Training Services will not be responsible for any loss or damage to a Participant’s personal valuables or property unless such property is damaged as a result of Coates Hire Training Services’ negligence.
c) There is no provision for child minding at Coates Hire Training Services Courses and children are not permitted at any premises where Courses are conducted.
d) Participants are required to report all injuries and incidents to Coates Hire Training Services’ Personnel immediately.
e) Participants must turn off mobile phones during Courses.
f) Where Participants are, in the reasonable opinion of the Coates Hire Training Services’ Personnel:
i. being disruptive during the Course;
ii. found to be cheating (collusion or plagiarism);
iii. acting inappropriately towards, or harassing, Coates Hire Training Services employees or other Participants;
Coates Hire Training Services will remove that Participant from the Course immediately, without a refund of the Fees.
5.1. Subject to successful completion of all Course requirements and the Fee being paid in full, Coates Hire Training Services will issue each Participant with the appropriate Course Outcome (unless otherwise agreed between the Parties).
5.2. Coates Hire Training Services will not release Course Outcomes to Participants for any Course that has not been paid for in full.
6.1. Coates Hire Training Services reserves the right to cancel any Course for any reason.
6.2. In the event of a cancellation that is not caused by a force majeure event, Coates Hire Training Services will refund the Fees paid by the Customer for the cancelled Course.
7.1. Where a Course is cancelled by the Customer with a notice period of at least 3 Business Days prior to the commencement date of the Course, the Customer will be refunded the Course Fee, less the Administration Fee. The Administration Fee is non-refundable.
7.2. Where a Course is cancelled by the Customer with a notice period of less than 3 full Business Days prior to the commencement date of the Course, the Course Fee is non-refundable.
7.3. If a Participant is enrolled in a Course and they wish to transfer to another Course date for the same Course they are able to do so providing they advise Coates Hire Training Services a minimum of 3 Business Days in advance. Should a Participant wish to transfer to another date and does not provide notice at least 3 full Business Days in advance, the Customer forfeits the full Course Fee.
8.1. Where Participants are to be assessed for High Risk Licensing, they must be 18 years of age or over.
8.2. For all other Courses Participants must be 16 years of age or over with the exception of WHS Construction induction White Card where participants must be 14 years of age or over.
November 2020 Edition