PARTIES
Global Skills Exchange Ltd ACN 129 590 656 (GSX)
AND
The Person named in Schedule 1 as the Company (Applicant).
RECITALS
A. The person named in Schedule 1 has Candidates which it wishes to make available to Members and wishes to Trade those Candidates through the Skills Exchange.
B. On the terms set out in this Agreement, GSX grants the Applicant access to the Skills Exchange.
OPERATIVE PROVISIONS
1. Interpretation
1.1 In this Agreement, including the Recitals, unless the context otherwise requires:
a. a reference to:
i. a party includes a reference to the directors, partners, officers, employees, agents and contractors of the party;
ii. a recital, clause, paragraph, schedule or annexure is a reference to a recital, clause, paragraph, schedule or annexure of this Agreement as the case may be;
iii. the singular includes the plural and vice versa;
iv. a gender includes the other genders;
v. a person includes a natural person, a partnership, an unincorporated association, a body corporate or a corporation;
vi. a party includes its legal personal representatives, successors and assigns;
vii. a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
viii. time is to local time in Canberra, Australian Capital Territory;
ix. “$” or “dollars” is a reference to the lawful currency of Australia; and
b. if a word or phrase is defined cognate words and phrases have corresponding definitions; and
c. the word “includes” is not a word of limitation.
1.2 In this Agreement, including the Recitals, unless the context otherwise requires:
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Access Code |
means a code and / or device provided by GSX to Authorised Persons in order to access the GSX Site and / or the Skills Exchange. |
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Activate |
means to alter the status of a Candidate from Verified Candidate to Active Candidate. |
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Active Candidate |
means Candidates who have been Entered and Verified and are available to Trade. |
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Agreement |
means this agreement between the Applicant and GSX and includes any schedules attached to the Membership Agreement and the Membership Code as amended from time to time. |
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Authorised Person |
means a person being either a Membership Manager, Trade Administrator, General User or any other person given an Access Code at the request of the Applicant, which Access Code has not been revoked. |
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Billing Cycle |
means the time between successive Seller’s Invoices during the term of a Skills Exchange Agreement and is one calendar month. |
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Business Day |
means a day that is not a Saturday, Sunday or public holiday in the Australian Capital Territory. |
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Buyer |
means a Member who agrees to Trade in respect of a Candidate it does not Control. |
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Candidate |
means a person whose details are Entered onto the Skills Exchange database and includes any person substituted for the Candidate at any time during a Skills Exchange Agreement whether or not that substituted person was ever Entered. |
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Commencement Date |
means the date of acceptance of the Registration Form by GSX. |
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Control |
A Candidate is controlled by a Member if: a) the Member has entered into with the Candidate: i. a contract of employment other than a Skills Exchange Agreement with the Candidate; or ii. a contract of agency or of provision of services that expressly permits the Member to Enter or Verify the Candidate; or b) the Candidate has consented to being represented by the Member and has not withdrawn that consent. |
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Deactivate |
means to alter the status of an Active Candidate to a Unverified Candidate. |
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Enter |
means to initially record the Candidate’s details on the Skills Exchange database. Candidates who have been Entered are initially Unverified Candidates. |
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Estimated Trade Fee |
means the amount estimated by the Buyer as the monthly average Trade Fee for a given Skills Exchange Agreement or, if no such estimate is provided to GSX, any other such amount as GSX determines. |
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General User |
means a person granted access to the Skill Exchange by a Member as a General User for the purposes of clause 4.2 of the Code. |
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GST |
means the Goods and Services Tax referred to in A New Tax System (Goods & Services Tax) Act 1999. |
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GSX Site |
means the GSX internet website. |
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GSX Trade Number |
Is a unique contract number issued by GSX to execute the Skills Exchange Agreement between the Buyer and Seller |
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Hire Fee
Insolvent |
means the fee charged by the Seller to the Buyer in respect of a Candidate under a Skills Exchange Agreement exclusive of the Trade Fee. means being an insolvent under administration or insolvent (each as defined in the Corporations Act 2001) or having a controller (as defined in the Corporations Act 2001) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due or having something with the same or a similar effect happen under the laws of any jurisdiction. |
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Law |
means both the general law and statutory law in force from time to time during the Term. |
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Member |
means a person accepted by GSX as being entitled to access and use the Skills Exchange, for the time being. |
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Member’s Lounge |
means the main area of the GSX Site through which Members can access the Skills Exchange and other administrative sections of the GSX Site. |
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Membership Code |
means the terms and conditions set out in Schedule 2. |
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Membership Fee |
means the annual fee payable by the Applicant to GSX for access to the Membership Services. |
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Membership Manager |
means the person named as the “Principal / Manager contact” in Schedule 1 or otherwise notified to GSX to be the Membership Manager in writing to be the Membership Manager for the purposes of clause 4.2 of the Code. |
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Membership Services |
means the services specified on the GSX Site as applicable to the level of Membership applied for by the Applicant and as amended from time to time in accordance with clause 6. |
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Package |
means a Candidate’s total first year annual remuneration. |
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Recruitment Agency |
means a person who has applied for membership of the Skills Exchange as a recruitment agency and has been accepted by GSX as such. |
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Registration Form |
means the completed registration form forming Schedule 1 to this Agreement. |
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Remove |
means to alter the status of a Candidate from an Active Candidate or Verified Candidate to an Unverified Candidate. |
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Representation |
means the relationship between a Candidate and a Controlling Member. |
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Running Balance Account |
means an account kept by GSX of all liabilities of the Applicant and all payments received in respect of those liabilities. |
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Seller |
means a Member who agrees to Trade in respect of a Candidate it Controls. |
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Seller’s Invoice |
means the invoice sent by a Seller to a Buyer in respect of a Skills Exchange Agreement for each Billing Cycle. |
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Skills Exchange |
means the data and functionality provided on the GSX Site through which the Member is able to make available or source Candidates it wishes to Trade. |
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Skills Exchange Agreement |
means the agreement between the Applicant and another Member setting out the terms and conditions of the Trade. The Skills Exchange Agreement can be oral, written, express, implied or any combination thereof. This Agreement must quote the GSX Trade Number in all cases. |
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Skills Matrix |
means the list of the Candidate’s skills relevant to his or her employment held on the Skills Exchange database. |
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Suggested Terms |
means the contractual terms defined as such in the Membership Code. |
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Trade |
means to agree to Buy or Sell a Candidate who is listed on the Skills Exchange. |
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Trade Administrator |
means a person granted access to the Skill Exchange by a Member as a Trade Administrator for the purposes of clause 4.2 of the Code. |
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Trade Fee |
means: a) for a Skills Exchange Agreement which is not a permanent placement, 2.5% of the Hire Fee for the relevant Billing Cycle; or b) for a Skills Exchange Agreement which is a permanent placement: i. 2.5% of the Candidate’s Package if the Seller is a Recruitment Agency; or ii. in any other case, 5% of the Candidate’s Package. |
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Unverified Candidate |
means a Candidate whose details are stored on the Skills Exchange database require confirmation as being accurate and complete or a Candidate without Representation. |
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Verify |
In respect of a Candidate means that its Controlling Member confirms that the Candidate’s details held on the Skills Exchange database are complete and accurate and that the Candidate is under its Control. |
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Verified Candidate |
means a Candidate whose Controlling Member has confirmed that the Candidate’s details held on the Skills Exchange database are complete and accurate and that the Candidate is under its Control. |
2. Grant of Access to Skills Exchange
2.1 In consideration of GSX accepting and processing the Registration Form by and conferring to the Applicant access to the Membership Services, GSX must during the Term, grant the Applicant access to the Skills Exchange on the terms and conditions set out in this Agreement.
2.2 The Applicant must pay the Membership Fee in full within 30 days of the Commencement Date.
3. Term
3.1 3.1 The term of this Agreement will start on Commencement Date and will continue until the Termination Date, which is the earlier of:
a) the date 12 months from Commencement Date; and
b) the date this Agreement is terminated in accordance with clause 22.
4. GSX Obligations
4.1 GSX must provide the Applicant with access to the Membership Services during the Term.
4.2 GSX must set up and maintain a separate Access Code to the Skills Exchange for each person nominated by the Applicant during the Term, but only for the period of their respective nominations.
4.3 Subject to this Agreement, GSX must make the Skills Exchange available for access by each person nominated by the Applicant during the hours 7.00am to 7.00pm Monday to Friday, but only for the period of their respective nominations.
4.4 GSX may at its sole discretion allow access to the Skills Exchange (through the use of the Access Codes) at any time other than that specified in clause 4.3 above.
5. Membership Code
5.1 At all times during the Term the Applicant must comply with the Membership Code, as amended from time to time.
5.2 GSX may amend the Membership Code at any time during the Term in accordance with this clause 5.
5.3 Amendments to the Membership Code will automatically become effective 30 days or other such longer time as specified by GSX after the Applicant is notified that the Membership Code has been amended.
5.4 If the Membership Code is amended, the Applicant may:
a) accept the varied terms of the Membership Code as part of this Agreement by continuing to access the Skills Exchange on or after the date on which the amended Membership Code comes into effect; or
b) terminate its Membership in accordance with clause 22.3.
6. Membership Access
a) Membership Manager;
b) Trade Administrator; or
c) General User.
6.2 By nominating persons in accordance with clause 6.1, the Applicant warrants that those persons have the authority to access the Skills Exchange and do all things permitted under nominated capacity.
7. Membership Services
7.1 GSX may amend the Membership Services at any time during the Term in accordance with this clause 6.
7.2 Amendments to the Membership Services will automatically become effective 30 days or other such longer time as specified by GSX after the Applicant is notified that the Membership Services have been amended.
7.3 If the Membership Service are amended, the Applicant may:
a) accept the varied Membership Services as part of this Agreement by continuing to access the Skills Exchange on or after the date on which the amended Membership Service come into effect; or
b) terminate its Membership in accordance with clause 22.3.
8. Trade Fee
8.1 The Applicant must pay all Trade Fees for which it becomes liable under this Agreement to GSX in accordance with the terms of this Agreement.
8.2 The Applicant must provide GSX with notification of a Trade and the Trade terms and a copy of the Purchase Order within 7 days of a Skills Exchange Agreement being entered into, whether as Buyer or Seller.
8.3 Subject to clause 22 the Applicant is liable to pay Trade Fees in respect of each Skills Exchange Agreement to which it is a party for the duration of the Skills Exchange Agreement.
8.4 The Applicant agrees that the Buyer is liable to GSX for the Trade Fees, administration fees and interest in relation to that Trade.
8.5 If the Applicant fails to provide GSX the information specified in clause 8.2 the Applicant agrees that the Estimated Trade Fee in respect of a given Skills Exchange Agreement for the Billing Cycle is due and payable to GSX.
8.6 For each Skills Exchange Agreement to which clause 8.5 applies in a given Billing Cycle:
a) The Trade Fee for the Billing Cycle will be increased to include an administration fee of $20.00 exclusive of GST and any administration fees will be payable on the next Billing Cycle;
b) The Applicant remains liable for any shortfall between the actual Trade Fee and the Estimated Trade Fee; and
c) GSX will credit any excess between the actual Trade Fee and the Estimated Trade Fee in a Running Balance Account on behalf of the Applicant upon the Applicant providing information to verify that difference.
8.7 The Applicant remains liable for the payment of all Trade Fees to GSX in relation to any unexpired Skills Exchange Agreement to which it is a party even if the other party to such an agreement ceases to have access to the Skills Exchange for any reason.
8.8 Trade Fees for existing Skills Exchange Agreements cannot be varied as a result of any variations to the deliverables or terms and conditions after the initial Purchase Order has already been issued.
8.9 Any adjustment to Trade Fees as a result of variations to the deliverables or terms and conditions after the initial Purchase Order has already been issued will be incorporated in the GSX invoice for the Buyer’s next Skill Exchange Agreement that is executed with another Seller.
9. Interest
9.1 Trade Fees must be paid to GSX by the Applicant acting as the Buyer to a Skills Exchange Agreement within 30 days of receipt of a GSX Invoice.
9.2 Interest accrues on amounts due to GSX from the final date for payment of the amount at the rate of 20% per annum applied on a daily basis and calculated for each day the payment is late.
10. Undisclosed Trades or Invoices
10.1 This clause 10 applies if the Applicant fails to advise GSX of:
a) any Skills Exchange Agreement to which the Applicant is a party (‘Undisclosed Agreement’), or
b) any services provided under a Skills Exchange Agreement which would result in a liability for Trade Fees, or increased Trade Fees, on the part of the Applicant (‘Undisclosed Services’).
10.2 GSX will create an invoice (‘Undisclosed Services Invoice’) for each Skills Exchange Agreement for each calendar month to which clause 10.1(b) applies.
10.3 The Applicant must pay GSX:
a) an administration fee of $500 exclusive of GST for each Undisclosed Agreement;
b) an administration fee of $75 exclusive of GST for each Undisclosed Services Invoice;
c) all amounts owing to GSX as Trade Fees on all Undisclosed Services Invoices; and
d) interest on amounts under paragraph (c) above in accordance with clause 9.2 as if the final date for payment for each Undisclosed Services Invoice was 30 days after the last day of the month in which the Undisclosed Services were provided.
11. Events of Default
11.1 It is an Event of Default if the Applicant:
a) fails to pay the Membership Fee in full;
b) fails to provide GSX with notification of a Trade or Trade terms and conditions within 7 days of a Skills Exchange Agreement being entered into, whether as Buyer or Seller per clause 8.2;
c) fails to pay GSX the Trade Fee applicable to a Skills Exchange Agreement within 30 days of a Seller’s Invoice being issued in respect of the Trade;
d) fails to co-operate with GSX in the conduct of an audit.
12. No Undertaking and Disclaimer
12.1 GSX relies entirely on the completeness and accuracy of the information concerning Candidates supplied to it by Members including the Applicant and gives no undertakings, representations or warranties in relation to such information published to Members including the Applicant in relation to Candidates whose details are Entered on the Skills Exchange, including with respect to:
a) Control of the Candidate;
b) the content and accuracy of each Candidate’s Skills Matrix;
c) a Candidate’s ability to meet the Applicant’s or any other Member’s requirements or expectations; or
d) the ability of other Members to enter into or discharge a Skills Exchange Agreement or pay any fees associated with such agreement.
13. GSX Disclaimer
13.1 The Applicant agrees that:
a) The use of the Skills Exchange is at the Applicant’s sole risk;
b) GSX, in no way warrants that:
i. a Traded Candidate will be released to the Buyer in a timely manner;
ii. a Member will discharge a Skills Exchange Agreement; or
iii. any information provided on the Skills Exchange is complete, accurate, error-free or reliable;
c) no advice or information obtained by the Applicant from GSX shall create any warranty by GSX that is not expressly stated in this Agreement or the Membership Code; and
d) notwithstanding the liability of the Applicant to GSX for the Trade Fee, GSX is in no way involved in the Trade or Skills Exchange Agreement, and is not liable for the failure of any Member to fulfil its obligations under the terms and conditions of a Skills Exchange Agreement to another Member.
14. Use of Information
14.1 GSX undertakes that its directors and employees:
a) will use the information provided by Members for the sole purpose of the Skills Exchange; and
b) in accordance with section 183 of the Corporations Act, will not improperly use the information provided by Members to:
i. gain an advantage for themselves or someone else; or
ii. cause detriment to GSX.
15. No Liability
15.1 The Applicant agrees that to the maximum extent permitted by law, the liability of GSX to the Applicant under or in connection with:
a) this Agreement;
b) the Skills Exchange;
c) information published on the Skills Exchange;
d) another Member's acts or omissions; or
e) the Applicant’s use of or misuse of the Skills Exchange, is limited to the cost of GSX performing its obligations again regardless of how such liability might arise.
15.2 GSX’s liability is limited in accordance with clause 15.1 in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
16. Member’s Warranties
16.1 The Applicant warrants that:
a) the Trading of Candidates under its Control does not contravene any Law or the rights of any person;
b) the Trading of Candidates under its Control is not for an illegal purpose;
c) there is no reason why the Candidates should not be Listed, made Active or Traded as the case may be;
d) each Controlled Candidate has given, and has not withdrawn, consent to being Entered and Traded;
e) it has provided complete, accurate and current information in relation to this Agreement and shall only provide complete, accurate and current information to GSX in relation to the Applicant’s Candidates Controlled by the Member for publication on the Skills Exchange;
f) it will maintain and update the information held by GSX in relation to the Applicant’s Candidates Controlled by the Member to enable GSX to hold current records at all times;
g) it holds the legal capacity to enter into this Agreement;
h) each submission of information to GSX under this Agreement shall be made by a person who has the authority to supply that information; and
i) it has obtained all applicable licences to Trade Candidates on the Skills Exchange.
17. Indemnity
17.1 The Applicant releases, indemnifies and keep indemnified GSX from all actions, claims, costs including legal costs and expenses on a solicitor and own client basis, losses, proceedings, damages, liabilities, or demands suffered or incurred by GSX arising out of or in connection with:
a) the Applicant’s failure to comply with this Agreement;
b) the Applicant’s failure to enter into a Skills Exchange Agreement following a Trade;
c) the Applicant’s failure to pay Trade Fees or a Member’s failure to pay Trade Fees or honour any one or more terms of a Skills Exchange Agreement;
d) the inaccuracy or incompleteness of ay information published on the Skills Exchange, whether by the Applicant, another Member or GSX;
e) the Applicant’s or any Authorised Person’s use of the Skills Exchange or the GSX Site; or
f) any Trade or attempted Trade involving the Applicant.
18. No Waiver
18.1 The fact that GSX fails to do, or delays in doing, something GSX is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, the Applicant.
18.2 A waiver by GSX is only effective if it is in writing, and a written waiver by GSX is only effective in relation to the particular obligation or breach in respect of which it is given.
18.3 A written waiver is not to be taken as an implied waiver of any other obligation or breach, or as an implied waiver of that obligation or breach in relation to any other occasion.
19. Intellectual Property
19.1 The Applicant grants GSX a world-wide, perpetual, irrevocable, transferable, royalty-free licence with right to sub-licence in respect of any intellectual property provided by the Applicant to GSX whether for publication on the Skills Exchange or not.
19.2 The intellectual property referred to in paragraph 19.1 includes information given to GSX in respect of a Candidate that the Applicant Controls.
19.3 GSX may maintain historical records of all Candidates entered on the Skills Exchange database and of all activity by the Applicant on the Skills Exchange.
20. Audits
20.1 GSX may conduct audits of the Applicant's compliance with the Applicant’s obligations under this Agreement at any time on reasonable notice to the Applicant and the Applicant warrants that it shall supply complete and accurate information to each reasonable request for information pertaining to each past or present Candidate it Controls, the circumstances pertaining to each Trade alleged it was or is a party to and the circumstances pertaining to each Skills Exchange Agreement it is alleged it was or is a party to.
20.2 The Applicant must participate cooperatively in any audits under this clause 20 conducted by GSX or its agent including providing access to or copies of all:
a) Skills Exchange Agreements to which the Applicant is or was a party; and
b) all invoices whether generated or received by the Applicant in relation to such Skills Exchange Agreements.
20.3 GSX must keep confidential all confidential information made available to it in the course of any audit conducted under this clause 20
21. Correction of Candidate’s Details
21.1 The Applicant must abide by any reasonable direction from GSX with respect to the details of a Controlled Candidate.
21.2 GSX may Deactivate or Remove a Candidate if:
a) GSX believes, in its sole discretion, that it is in the best interests of GSX, the Candidate’s Controlling Member, the Candidate or any other Member to do so; or
b) the Applicant has:
i. been requested to perform some action in respect of a Controlled Candidate’s details by GSX; and
ii. failed to perform the requested action within the timeframe specified, or if no timeframe is specified, within 3 Business Days.
22. Termination
22.1 GSX may, in its absolute discretion, suspend or terminate this Agreement with immediate effect if:
a) the Applicant becomes Insolvent;
b) an Event of Default occurs; or
c) the Applicant breaches a fundamental term of this Agreement.
22.2 GSX may terminate this Agreement by providing one month’s notice to the Applicant.
22.3 The Applicant may terminate this Agreement by providing one month’s notice to GSX.
22.4 Subject to clause 22.7, on the expiry or earlier termination of this Agreement:
a) all unpaid Trade Fees, administration fees, Membership Fees and interest for which the Applicant is liable up to and including the Termination Date, become immediately due and payable to GSX;
b) the Applicant remains liable for Trade Fees, administration fees and interest that will become payable in relation to all Skills Exchange Agreements to which the Applicant is a party up to and including the Termination Date or such later date as may apply under clause 22.5;
c) GSX will retain all Membership Fees received from the Applicant;
d) such termination does not prejudice any right of action that has accrued at the Termination Date;
e) GSX will refund to the Applicant within 30 days of the Termination Date any credit balance in the Applicant’s Running Balance Account once all liabilities of the Applicant to GSX have been paid.
22.5 If this Agreement is terminated in accordance with clause 22.1 or 22.3, the Applicant remains liable for Trade Fees, administration fees and interest in respect of all continuing Skills Exchange Agreements until the later of:
a) the date three months from the Termination Date; and
b) the date calculated in accordance with clause 3.1(a).
22.6 For the purposes of this clause 22, where a Seller’s Invoice is issued for a period ending on a date other than the last date for which the Applicant is liable for Trade Fees, then the Trade Fee for which the Applicant will liable be based on the amount determined by dividing the amount of the Seller’s Invoice by the number of days in the invoice period to which the Seller’s Invoice relates and multiplying the result by the number of days for which the Applicant is liable under this clause 22.
22.7 If the parties enter into a new agreement (‘New Agreement’) for the provision of Membership Services or similar services within 30 days of the expiry or termination of this Agreement, then subject to the terms of the New Agreement:.
a) all obligations of the Applicant under this Agreement with respect to Skills Exchange Agreements current as at the Termination Date carry over to the New Agreement;
b) all liability for Trade Fees, administration fees and interest payable under this Agreement carry over to the New Agreement; and
c) GSX will not refund any credit balance in the Member’s Running Balance Account.
23. No Merger
23.1 Any provision of this Agreement which expressly or by implication from its nature is intended to survive the termination or expiration of this Agreement and any rights arising on termination or expiration shall survive the expiry or termination of this Agreement.
24. Giving Notice
24.1 Any notice that must or may be given to a party under this Agreement must be made in writing and in addition to any other lawful means may be delivered in person or sent by facsimile, email or pre-paid post to the address for notices specified by the party to whom it is addressed.
24.2 Subject to clause 24.3 any notice, is to be treated as given or made:
a) if it is delivered, when it is left at the address for notices or handed to a person able to receive notices;
b) If it is sent by facsimile or email, when it is sent, provided that the sender does not receive notification of an unsuccessful transmission or delivery;
c) if it is sent by pre-paid post, two Business Days after it is posted.
24.3 Any notice given on a day that is not a Business Day, or if on a Business Day, after 5pm on that day in the place of the party to whom it is sent, it is to be treated as having been given at the beginning of the next Business Day.
24.4 Addresses for service for:
a) the Applicant are as specified in Schedule 1 under the heading “Principal / Manager contact”; and
b) for GSX are:
iii. Delivery: Unit 5, 10 Kennedy Street Kingston ACT 2604
iv. Postal: PO Box 893 Ipswich QLD 4305
v. Facsimile: 02 6239 7183
vi. Email: Info@gsxonline.com.au
24.5 A party can by notice alter its address for service at any time.
25. Miscellaneous
25.1 This Agreement constitutes the entire agreement between the parties with regard to the subject matter of the Agreement and all warranties, representations and terms not explicitly included in this Agreement are of no effect. 25.2 This Agreement is governed by the law of Australian Capital Territory.
25.2 The Parties submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory and courts of appeal from them. The Parties will not object to the exercise of jurisdiction by those courts on any basis.
25.3 If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.
25.4 If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.
25.5 If there is any inconsistency between provisions of this document and the provisions of the Membership Code, a descending order of precedence shall accord to:
a) the clauses of this document;
b) the provisions of the Membership Code, so that the provisions in the higher ranked document, to the extent of the inconsistency, shall prevail.