1.Definitions and interpretation
1.1 The following definitions apply in this agreement unless the context requires otherwise:
- Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.
- Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.
- Charges means Fees and Expenses.
- Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
- Client means the party that will receive the Services as named in the Quote.
- Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
- any information that is specifically designated by any of them as confidential;
- any information which, by its nature, may reasonably be regarded as confidential;
- any information relating to any:
- agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
- customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
- Intellectual Property Rights, of any of them; and
- any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.
- Control has the meaning given in Section 50AA of the Corporations Act.
- Copyright Act means the Copyright Act 1968 (Cth).
- Corporations Act means the Corporations Act 2001 (Cth).
- Engagement has the meaning given in clause 1, being each individual engagement for the Company to provide specific Services to the Client pursuant to a Quote.
- Event of Default means any of the following on the part of the Client:
- committing any material or persistent breach of this agreement;
- repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
- if the Client is a company, undergoing a Change of Control without the prior written consent of the Company;
- misleading the Company in any material way; and/or
- an Insolvency Event occurring in respect of the Client.
- Expenses mean the expenses of the Company for which the Company is entitled to be reimbursed by the Client pursuant to clause 1.
- Fees has the meaning given in clause 1.
- Fixed Price means, in respect of a particular Engagement, if, as specified in the relevant Quote:
- the price (exclusive of GST) specified in the relevant Quote for all of the Services;
- Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
- GST has the same meaning given to that expression in the GST Law.
- GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
- GST Law has the same meaning given to that expression in the GST Act.
- Hourly Rate means the hourly rate set out in the relevant Quote, if applicable.
- Insolvency Event means, in respect of a party:
- where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
- where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
- a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
- the party is otherwise unable to pay its debts as and when they fall due.
- Input Tax Credit has the meaning given in the GST Law.
- Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
- liabilities on account of Tax;
- interest and other amounts payable to third parties;
- legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
- all amounts paid in settlement of any Claim.
- Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
- Personal Information has the meaning given in the Privacy Act.
- Privacy Act means the Privacy Act 1998 (Cth).
- Quote means, in respect of a particular Engagement, the document headed “Proposal” or similar setting out the scope of the Services for that Engagement as provided by the Company to the Client and accepted by the parties in accordance with this agreement.
- Relevant IP means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Company’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:
- using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
- in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Client under this agreement or otherwise;
- as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
- in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
- Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
- Services means the services provided by the Company to the Client under this agreement in respect of each Engagement, as set out in the relevant Quote.
- Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.
- Start Date means the date of this agreement or such other date as the parties may agree in writing.
- Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).
- Tax or Taxation means:
- any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
- unless the context otherwise requires, Stamp Duty and GST; and
- any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
- Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.
1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:
- headings in this agreement are for convenience only and do not affect its interpretation or construction;
- no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
- where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
- a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
- references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
- in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
- a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
- an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
- a reference to writing includes any communication sent by post, facsimile or email;
- a reference to time refers to time in Sydney, New South Wales and time is of the essence;
- all monetary amounts are in Australian currency;
- a reference to a “liability” includes a present, prospective, future or contingent liability;
- the word “month” means calendar month and the word “year” means 12 calendar months;
- the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
- a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
- a reference to any thing is a reference to the whole and each part of it;
- a reference to a group of persons is a reference to all of them collectively and to each of them individually;
- words in the singular include the plural and vice versa; and
- a reference to one gender includes a reference to the other genders.
2. Engagement as Company
The Client hereby engages the Company on a non-exclusive basis to provide the Services to the Client, and the Company hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.
3. Provision of the Services
3.1 In respect of each individual engagement for the Company to provide Services to the Client under this agreement (each an Engagement), the parties must first agree on a Quote. The Company’s obligation to provide the Services that are the subject of each Engagement does not arise unless and until the Client has notified the Company of the Client’s acceptance of the relevant Quote.
Standards and duties
3.2 The Company must, in providing the Services, comply with the standards and duties set out in Schedule 1.
4. Pricing and invoicing
4.1 Subject to clause 3.1, in respect of each Engagement, the parties have agreed that the total price for the relevant Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) will be, if as designated in the relevant Quote:
- (Fixed Price) a Fixed Price applies – that Fixed Price payable in arrears upon completion of the Services to the reasonable satisfaction of the Client; or
- (Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the Company in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 4.2 and payable in arrears upon completion of the Services to the reasonable satisfaction of the Client,
and the Company will invoice the Client by way of a single invoice for all relevant Charges following completion of all relevant work to the reasonable satisfaction of the Client; or
4.2 Hourly Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15 minute units, with 4 units per hour – eg, the time charged for an attendance of up to 15 minutes will be 1 unit and the time charged for an attendance between 15 and 30 minutes will be 2 units.
4.3 The Hourly Rate may only be changed by way of an amendment to this agreement pursuant to clause 10.2.
Timing of payments
The Client must pay to the Company all Charges properly invoiced pursuant to clause 4 in full upon the Client’s receipt of the relevant invoice.
Definitions regarding GST
6.1 In this clause 6:
- expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
- any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
- any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.
Consideration is exclusive of GST
6.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.
7. Intellectual Property
The parties agree that all Relevant IP will be owned by, and vest in, the Company.
8. Liability and remedies
8.1 The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company harmless from and against, any and all Losses that may be suffered by the Company and which arise, directly or indirectly, in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct in the provision of the Services.
8.2 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
Limitation of liability
8.3 To the maximum extent permitted by law, the Company and its Representatives expressly:
- (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:
- (Fixed Price) a Fixed Price applies – that Fixed Price payable in arrears upon completion of the Services to the reasonable satisfaction of the Client; or
- any particular individuals will perform the Services on behalf of the Company; or
- the Services will be:
- error-free or that errors or defects will be corrected; or
- meet the Client’s requirements or expectations; and
- (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against the Company under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Company’s sole discretion):
- re-supply of the Services;
- payment of the costs of supply of the Services by a third party; or
- the refund of any amounts paid by the Client to the Company under this agreement in respect to the Services,
even if the Company has been advised of the possibility of such Losses,
and the Client acknowledges and agrees that the Company holds the benefit of this clause 8.3 for itself and as agent and trustee for and on behalf of each of its Representatives.
8.4 To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company and the Company shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that the Company holds the benefit of this clause 8.4 for itself and as agent and trustee for and on behalf of each of its Representatives.
Termination for breach
9.1 The Company may terminate this agreement immediately by notice to the Client if an Event of Default occurs in respect of the Client.
Effect of termination
9.2 In the event of any termination of this agreement in any circumstances and for any reason whatsoever:
- the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination; and
- the Company will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 5 will apply in respect thereof.
Partially completed deliverables
9.3 Upon the cessation of the Company’s engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, the Company will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.
9.4 The obligations of the parties under clause 7 (Intellectual Property), clause 8 (Liability and remedies) and this clause 9 will survive the termination of this agreement.
10.1 This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.
10.2 This agreement may not be varied except by written instrument executed by all of the parties.
Governing law and jurisdiction
10.3 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.
10.4 The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).
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Schedule 1 | Standard and duties
The Company must, in providing the Services:
- (Honesty and diligence) be honest and diligent and provide the Services to it to the best of its knowledge and abilities;
- (Standards) at all times maintain reasonable ethical, professional and technical standards;
- (Discrimination and harassment) not unlawfully discriminate against, sexually harass or otherwise physically or verbally abuse any person; and
- (Privacy) in relation to any Personal Information of any customer, client, supplier or Representative of the Client, any user or prospective user or any other person, comply with:
- the Privacy Act and any guidelines, information sheets and other relevant material issued from time to time by the Commonwealth Privacy Commissioner; and