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Terms of Service

1 DEFINITIONS AND INTERPRETATIONS

1.1 DEFINITIONS

In this Agreement:

Agreement means this Consultancy Agreement including the Schedules.

Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in New South Wales.

Claim means any cost, claim, expense, loss, damages, demand or liability of any kind.

Confidential Information means and includes (without limitation):

  • information which belongs to the Client or any Related Body Corporate of the Client (regardless of form) or the Contractor and is regarded by the Client or the Contractor as confidential, or can reasonably be inferred to be confidential from the circumstances in which it is disclosed;
  • information which is disclosed to the Client by the Contractor, the Nominated Consultant and/or the Contractor Personnel, or information which is disclosed to the Contractor or any of the Nominated Consultant and/or Contractor Personnel by or on behalf of the Client or its Related Body Corporate or any of their officers, employees, agents or representatives, whether before or after the date of this Agreement, which is expressed to be confidential or provided on a confidential basis, or can reasonably be inferred to be confidential from the circumstances in which it is disclosed; and
  • each of the following:
    • confidential information or Intellectual Property of any client of the Client or its Related Body Corporate (including, without limitation, any information labelled “confidential” or expressed by the client to be confidential or sensitive, or which it can be inferred is of a confidential or sensitive nature);
    • the Contractors and the Client’s (or its Related Body Corporate’s or any client of the Client’s), research participant information (including personal information) and responses, recruitment, research, and analysis methodologies, psychological frameworks and applications, competitive strategies, business practices and strategies, other practices and strategies, trade secrets, know-how,

    (together, items and are Sensitive Confidential Information);

  • all information and data contained in the Project Materials.

The following are examples of Confidential Information:

  • details of employees, policies, processes, procedures, manuals, handbooks, contracts and agreements, forms designed, created or purchased by the Contractor or the Client or any Related Body Corporate of the Client, financial information, strategic information, information about current and future projects;
  • details or information of any client of the Contractor or of the Client, including (without limitation) client lists and contact information;
  • the affairs, ideas, business plans, activities and/or operations of the Contractor or of the Client or any Related Body Corporate of the Client, or of any party with whom the Contractor or the Client or its Related Body Corporate deals;
  • the terms of this Agreement;
  • any Intellectual Property belonging to the Contractor or the Client or any Related Party of the Client;
  • any materials or information which is marked “confidential” or which is of a commercially sensitive nature, including information reasonably to be regarded as confidential from its nature and content;
  • information relating to existing and/or future developments, business opportunities and client or customer lists, or business practices of the Contractor or the Client or its Related Bodies Corporate, or of any party with whom the Contractor or the Client or its Related Body Corporate deals;
  • all other matters relating to internal or external operations or plans of the Contractor or the Client or its Related Bodies Corporate.

Contractor Materials means all Intellectual Property which the Contractor created prior to the Commencement Date (other than material created for, in anticipation of or as part of the Services) and material that the Contractor produces as part of the general operation of the Contractor’s business and which is not particular to this Agreement.

Contractor Personnel means any person employed or otherwise engaged by the Contractor from time to time.

Corporations Act means Corporations Act 2001 (Cth).

Expenses means reasonable third-party costs incurred by the Contractor in the delivery of the Services, provided they are pre-approved by the Client.

Fees means the fees payable by the Client for the Services, as specified in the Proposal or Statement of Work.

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means the occurrence of any one or more of the following events in relation to any person:

  • an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed;
  • a liquidator or provisional liquidator is appointed;
  • an Administrator (as defined in section 9 of the Corporations Act) or a Controller (as defined in section 9 of the Corporations Act) is appointed to any of its assets;
  • it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
  • it proposes a winding-up, dissolution or reorganisation, moratorium, deed of Client arrangement or other administration involving one or more of its creditors;
  • it is insolvent as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
  • it becomes, or states that it is, an Insolvent under Administration (as defined in section 9 of the Corporations Act) or action is taken which could result in that event;
  • an order is made, a resolution is passed, proposal put forward or any other action taken, in each case which is preparatory to or could result in any of the matters referred to in paragraphs – inclusive;
  • it is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act;
  • a notice is issued under sections 601AA or 601AB of the Corporations Act;
  • a writ of execution is levied against it or its property;
  • any step is taken by a mortgagee to enter into possession of or dispose of the whole or any part of the other party’s assets or business;
  • it ceases to carry on business or threatens to do so; or
  • anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.

Intellectual Property has its ordinary meaning and includes (without limitation) any work, material, information or matter which may be the subject of any Intellectual Property Rights, including for the avoidance of doubt (and without limitation) any copyright works, patents, trade marks, patents, designs, trade secrets and know-how.

Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including (without limitation) all rights in copyright, patents, trade mark (including any goodwill associated with those trade mark rights), designs and trade secrets.

Material means the necessary materials required by the Contractor to provide the Services including, but not limited to, access to the Client’s systems and necessary data.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth).

Project Materials means any signs (including names, logos and labels), methodologies, tools, ideas, information, products, processes, documents (including working proofs), software, computer files, reports, drawings, photographs, videos, imageries, infographics, diagrams, concepts, techniques, music, sound or voice recordings, broadcasts, podcasts, publications (including, but not limited to, articles, blogs and social media

2 INTERPRETATION

In this Agreement the following rules of interpretation apply unless the contrary intention appears:

  • headings are for convenience only and do not affect the interpretation of this Agreement;
  • the singular includes the plural and vice versa;
  • a reference a gender or a gender neutral reference is a reference to every gender;
  • where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
  • the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
  • a reference to:
    • a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
    • a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
    • a party includes its successors and permitted assigns;
    • a document includes all amendments or supplements to that document;
    • a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;
    • this Agreement includes all schedules and attachments to it;
    • a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a rule of an applicable financial market and is a reference to that law as amended, consolidated or replaced;
    • an Agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
    • a monetary amount is in Australian dollars;
  • an Agreement on the part of two or more persons binds them jointly and severally;
  • when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;
  • in determining the time of day, where relevant to this Agreement, the relevant time of day is:
    • for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
    • in relation to the performance of an obligation, the time of day in the place at which the obligation is to be performed; or
    • for any other purpose under this Agreement, the time of day in the place where the party required to perform an obligation is located;
  • no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.

3 RELATIONSHIP OF PARTIES

  • The relationship between the Client and the Contractor is an independent contracting relationship.
  • Nothing in this Agreement:
    • renders the Contractor or any Nominated Consultant or Contractor Personnel an employee of the Client or of any Related Body Corporate of the Client;
    • creates an employment relationship between the Client and the Contractor;
    • creates an employment relationship between the Client and any Nominated Consultant or Contractor Personnel; or
    • is intended to constitute an agency, partnership or trust as between the Client and any other person.
  • The Contractor has no authority to bind the Client.

4 TERM

4.1 This Agreement commences on the Commencement Date and continues for the Term unless terminated earlier in accordance with clause 16.

4.2 The Client may at any time prior to the Termination Date, in its sole and absolute discretion, offer to extend the Term for such period, and on such terms, as it thinks fit.

4.3 The terms of this Agreement will apply to any extended or further term, except to the extent the parties expressly agree otherwise.

4.4 Each Engagement Schedule accepted by the Contractor constitutes a separate contract for the supply of the Services to the Client.

4.5 The terms of this Consultancy Agreement will apply and form part of every Engagement Schedule entered into between the parties. When the Engagement Schedule is approved by the parties in writing, it will become binding to this Agreement. No work will commence pursuant to an Engagement Schedule until both parties agree to the new Services by in writing.

5 CLIENT’S OBLIGATIONS

The Client will:

  • act in good faith in all its dealings with the Contractor;
  • promptly and accurately provide the Contractor with all relevant Material;
  • pay the Service Fees in consideration for the provision of the Services; and
  • pay the Service Fees by the due date set out in any tax invoice issued by the Contractor for the Services rendered.

6 CONTRACTOR’S OBLIGATIONS

6.1 The Contractor will provide the Services to the Client.

6.2 The Contractor must, and must ensure that each Nominated Consultant and all Contractor Personnel:

  • perform the Services with due care and skill and in a proper and effective manner;
  • act in good faith;
  • undertake all travel within Australia and overseas as required to perform the Services;
  • protect the Confidential Information and de-identify any Project Materials;
  • comply with all laws, regulations and industry accepted standards applicable to the Services;
  • maintain all permits, licences and other government or regulatory authorisations required for the delivery of the Services;
  • comply with all of the Client’s reasonable directions in connection with the provision of the Services;
  • comply with all of the Client’s applicable policies; and
  • report to the Managing Director or other representative nominated by the Client from time to time, and provide all reports, briefs or other documents requested by the Managing Director or representative as part of the Services.

6.3 The Contractor must not and must ensure that the Nominated Consultant and the Contractor Personnel do not hold themselves out in any way to bind the Client except with the express authorisation of the Client from time to time.

6.4 The Contractor is not and the Nominated Consultant and any Contractor Personnel are not eligible for any employee or fringe benefits provided to employees of the Client including dental, medical, disability, hospitalisation, life insurance, vacation, travel benefits and any other employee welfare and benefit program maintained by the Client.

6.5 The Contractor will:

  • be solely responsible for withholding, paying and reporting any and all required Taxes and the Client will make no deductions or payments on behalf of the Contractor with respect to Tax or superannuation, and all contributions and payments required by law to be made to or in respect of the Contractor’s employees, agents or contractors, the Nominated Consultant and any other Contractor Personnel, including (but not limited to) salary, wages, annual leave, sick leave, long service leave, superannuation, workers’ compensation, Taxes, and accident and other insurances;
  • comply with all laws, regulations and instruments in connection with the Contractor’s employees, agents or contractors, the Nominated Consultant and any other Contractor Personnel, including by making all deductions from salary or wages in respect of income tax required by law to be made; and
  • furnish upon request from the Client evidence of compliance with this clause in respect of the Contractor’s employees, agents or contractors, the Nominated Consultant and any other Contractor Personnel involved in the provision of the Services.

7 NOMINATED CONSULTANT AND CONTRACTOR PERSONNEL

The Contractor and the Client may from time to time agree to nominate a different Nominated Consultant to provide the Services.

8 PROJECT MATERIALS AND INTELLECTUAL PROPERTY

8.1 Project Material

Subject to the Client’s strict compliance with Clause 10 of this Agreement, the Contractor grants to the Client a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, non-transferable licence to use, reproduce, adapt, modify, translate, publish, perform, publicly display or exercise the Intellectual Property Rights in the Project Material.

8.2 Contractor Materials

For the avoidance of doubt, nothing in this Agreement transfers, assigns or vests any of the Contractor Materials to the Client, and the Contractor, Nominated Person and contractor personnel are not compelled to comply with clause 8.1 insofar as it is related to the Contractor Materials.

Where any of the Contractor Materials are used in the Project Materials, the Contractor hereby grants to the Client a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, non-transferable licence to use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute or exercise the Intellectual Property Rights in the Contractor Materials to the extent that the Client needs the license to derive the benefits of the Project Materials.

The Client hereby grants to the Contractor a perpetual, irrevocable, worldwide, royalty-free, non-exclusive licence to use, reproduce, and adapt the de-identified Project Materials solely for the purposes of internal reference, benchmarking, service improvement, and development of methodologies.

For clarity, the Contractor may not publish, publicly display, or otherwise distribute the Project Materials externally without the Client’s prior written consent.

8.3 Moral Rights

Subject to the Client’s strict compliance with Clause 10, to the extent permitted by law, the Contractor and the Nominated Consultant waive, and will ensure that the Contractor Personnel waive any Moral Rights they may have in the Project Materials. For the avoidance of doubt, this clause 8.3 does not apply to the Contractor Materials.

The Contractor and the Nominated Consultant consent, and must ensure that the Contractor Personnel consent, to the Client doing any of the following in relation to the Project Materials:

  • reproduction in any media;
  • publication in any media;
  • editing or other adaptation, including the deletion of parts of, or the addition of parts to, the Project Materials; and/or
  • re-use of the Project Materials, whether or not authorship of them is attributed to the Contractor, the Nominated Consultant and/or the Contractor Personnel.

8.4 Warranties as to Intellectual Property and notification of claims

The Contractor warrants that:

  • all Intellectual Property or Intellectual Property Rights assigned, licensed or provided by or on behalf of the Contractor to the Client or any of its Related Body Corporate under this Agreement or otherwise, and whether or not as part of the Services (Warranted IP Material), are owned by the Contractor or are otherwise within the capacity of the Contractor, the Nominated Consultant or Contractor Personnel (as the case may be) to transfer, assign or license; and
  • the use by the Client, its Related Body Corporate and any of their officers, employees, agents or representatives of the Warranted IP Material, the Project Materials and any other material assigned, licensed or provided to the Client the Contractor, the Nominated Consultant or Contractor Personnel, or used by the Contractor, the Nominated Consultant or Contractor Personnel in performing the Services will not infringe or give rise to any Claim in respect of the Intellectual Property Rights of any person or entity.

9 CONFIDENTIALITY

9.1 Confidentiality of the Contractor

Subject to clause 9.3, the Contractor must, and must ensure that the Nominated Consultant, Contractor Personnel and each other employee, agent, contractor or other representative of the Contractor:

  • keep confidential, and do not disclose to any other person, Confidential Information;
  • only use any Confidential Information for the purpose of providing or receiving (as the case may be) the Services or otherwise with the prior written consent of the Client;
  • not copy any document that contains Confidential Information or otherwise record or reproduce the Confidential Information in any material form except as is strictly necessary for the purpose of this Agreement or otherwise with the Client’s consent;
  • establish and maintain security procedures to prevent unauthorised access to or use of the Confidential Information or copying or reproducing of the Confidential Information;
  • acknowledge that they have no proprietary rights, title or interest in, and will not acquire any licence, rights, title or interest in, the Confidential Information of the Client except where clause 9.1 of this Agreement applies;
  • following a request by the Client or when the Client’s Confidential Information is no longer required for the purpose of the Contractor performing its obligations or exercising its rights under this Agreement, must immediately return (or otherwise destroy) all Confidential Information and certify that no Confidential Information is retained; and
  • acknowledge and agree that a breach of this clause may cause the Client irreparable damage for which monetary damages would not be an adequate remedy, and that, in addition to any other remedies that may be available, the Client may seek and obtain an injunctive relief against such a threatened breach.

9.2 Confidentiality of the Client

Subject to clause 9.3, the Client, its Related Body Corporate and each other employee, agent, contractor or other representative of the Client must, and must ensure that they:

  • keep confidential, and do not disclose to any other person, Confidential Information;
  • only use any Confidential Information for the purpose of providing or receiving (as the case may be) the Services or otherwise with the prior written consent of the Contractor;
  • not copy any document that contains Confidential Information or otherwise record or reproduce the Confidential Information in any material form except as is strictly necessary for the purpose of this Agreement or otherwise with the Contractor’s consent;
  • establish and maintain security procedures to prevent unauthorised access to or use of the Confidential Information or copying or reproducing of the Confidential Information;
  • acknowledge that they have no proprietary rights, title or interest in, and will not acquire any title or interest in, the Confidential Information contained in the Consultant Material, unless where 10.1 applies;
  • following a request by the Contractor or when the Contractor’s Confidential Information is no longer required for the purpose of the Client receiving the Services from the Contractor, must immediately return (or otherwise destroy) all Confidential Information and certify that no Confidential Information is retained; and
  • acknowledge and agree that a breach of this clause may cause the Contractor irreparable damage for which monetary damages would not be an adequate remedy, and that, in addition to any other remedies that may be available, the Contractor may seek and obtain an injunctive relief against such a threatened breach.

9.3 Disclosure required by law and public domain

The parties may disclose Confidential Information only as set out below:

  • to the extent necessary to enable a party to make any disclosure required by law;
  • to the extent necessary to enable a party to perform its obligations under this Agreement by disclosing the Confidential Information to any officer, employee, agent or adviser, having first ensured that the third party agrees to keep the Confidential Information confidential on terms at least as restrictive as set out in this clause;
  • with the other parties’ prior written consent, and subject to any conditions of that consent (which may be given or imposed in the Client’s sole and absolute discretion); or
  • where a portion of the Confidential Information has entered the public domain other than as a result of a breach of this Agreement by the other party or other agent or representative of, or person acting on behalf of or at the direction of, the other party, to that portion of the Confidential Information that has entered into the public domain.

Notwithstanding anything else in this clause, all Sensitive Confidential Information shall be deemed not to have entered into the public domain at any time.

9.4 Obligations relating to disclosure

If a party discloses or is required to disclose Confidential Information for any reason, and without prejudice to the other parties’ rights under this Agreement or otherwise, the disclosing party must:

  • take all reasonable steps to ensure that the person receiving the Confidential Information does not use or disclose that information except in the circumstances permitted by this clause; and
  • notify the other party as soon as practicable prior to making the disclosure or, if that is not possible, as soon as practicable afterwards.

10 FEES AND PAYMENT

10.1 Service Fees

The Client agrees to pay the fees specified in the relevant Proposal or Statement of Work. Fees may be structured as fixed-price, milestone-based, or time-and-materials, depending on the nature of the engagement.

10.2 Expenses

The Client agrees to reimburse Innover Solutions for any reasonable out-of-pocket expenses incurred in connection with the delivery of services, provided such expenses have been pre-approved in writing. These may include travel, accommodation, and third-party tools or licences necessary for the engagement.

10.3 Invoicing and payment

Invoices will be issued:

  • Upon completion of key milestones (for fixed-price engagements); or
  • Monthly in arrears (for time-and-materials engagements), unless otherwise agreed in writing.
  • All invoices are payable within 14 days of issue. Innover Solutions reserves the right to withhold deliverables or pause service delivery in the event of overdue payments.

10.4 Overdue Payments and Interest

If any amount payable by the Client remains unpaid after the due date, interest will accrue on the overdue amount at a rate of 5% per annum, calculated daily, until payment is received in full.

The Client may also be liable for any reasonable costs incurred by Innover Solutions in recovering overdue payments, including legal fees or collection agency charges.

11 SET-OFF

  • In the event that the Contractor has accrued credit with the Client and the Contractor is in arrears as to any fees or payments due under this Agreement, then the Client may deduct any fees from the Service Fees.

12 INSURANCE

  • The Contractor must effect and maintain all insurances a prudent person or business carrying out the Services would maintain, including:
    • workers’ compensation insurance to the extent required by any applicable law;
    • professional indemnity insurance; and
    • in relation to the performance of the Contractor’s supply of Services pursuant to this Agreement.
  • The Contractor must, on demand, produce evidence to the satisfaction of the Client of the insurance effected and maintained in accordance with this clause 12.

13 GOODS AND SERVICES TAX (GST)

13.1 Interpretation

For the purposes of this clause 13:

  • a term which has a defined meaning in the GST Law has the same meaning when used in this clause 13; and
  • each periodic or progressive component of a supply to which section 156-5(1) of the GST Law applies will be treated as though it is a separate supply.

13.2 Consideration GST exclusive

Unless expressly stated otherwise in this Agreement, all amounts payable or consideration to be provided under this Agreement are exclusive of GST.

13.3 Payment of GST

If GST is payable on any supply made under this Agreement, for which the consideration is not expressly stated to include GST, the recipient agrees to pay to the supplier an additional amount equal to the GST payable at the same time that the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided. However:

  • the recipient need not pay the additional amount until the supplier gives the recipient a tax invoice or an adjustment note;
  • if an adjustment event arises in respect of the supply, the additional amount must be adjusted to reflect the adjustment event and the recipient or the supplier (as the case may be) must make any payments necessary to reflect the adjustment; and
  • this clause does not apply to the extent that the GST on the supply is payable by the recipient under Division 84 of the GST Act.

13.4 Calculation of payments

If an amount payable under this Agreement is to be calculated by reference to:

  • the price to be received for a taxable supply then, for the purposes of that calculation, the price is reduced to the extent that it includes any amount on account of GST; and
  • the price to be paid or provided for an acquisition then, for the purposes of that calculation, the price is reduced to the extent that an input tax credit is available for the acquisition.

14 REPRESENTATIONS AND WARRANTIES

14.1 Mutual representations and warranties

Each of the Client and the Contractor warrant and represent to the other that as at the date of this Agreement:

  • incorporation: in the case of the Client, it is a corporation having limited liability, incorporated (or taken to be incorporated) or registered and validly existing under the laws of its jurisdiction of incorporation;
  • capacity: it has full power and capacity to enter into and perform its obligations under this Agreement;
  • authorisations: all necessary action has been taken to authorise its execution, delivery and performance of this Agreement in accordance with its terms;
  • binding obligations: this Agreement constitutes its legal, valid and binding obligations and this Agreement is enforceable in accordance with its terms; and
  • transaction permitted: the execution, delivery and performance of this Agreement by it does not and will not violate, breach, or result in the contravention of:
    • any law, resolution or authorisation; or
    • its constitution.

14.2 Contractor’s warranties

The Contractor represents and warrants to the Client that:

  • competence: the Contractor, the Nominated Consultant and the Contractor Personnel are suitably experienced, competent and have the necessary skills to provide the Services;
  • availability: the Contractor has satisfied itself as to the availability of the Nominated Consultant and the Contractor Personnel to provide the Services;
  • due care and skill: the Contractor, the Nominated Consultant and the Contractor Personnel will perform the Services with due care and skill, in a professional and effective manner and to a standard equivalent to standards of the performance exhibited by consulting organisations reasonably similar to the Contractor;
  • fit for purpose: the Services supplied to the Client by the Contractor will be fit for the purpose for which they were supplied;
  • no infringement: the Services supplied by the Contractor under this Agreement do not and will not infringe the Intellectual Property Rights or confidentiality of any person, and that the Contractor has obtained all relevant third party clearances and consents, including in relation to Moral Rights; and
  • compliance with laws: the Contractor has complied with all its obligations imposed under the Superannuation Guarantee (Administration) Act 1992 (Cth), the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), as an employer of the Nominated Consultant and the Contractor Personnel and will meet all its obligations under those Acts, and, if requested, will provide to the Client satisfactory evidence that it has met all its obligations in respect of the Nominated Consultant and the Contractor Personnel.

14.3 No warranties in relation to completion

The Contractor provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date and any other date, whether stated in this Agreement, the Schedule or elsewhere.

15 TERMINATION

15.1 Mutual termination rights with notice

  • The Client may terminate this Agreement at any time by giving two (2) weeks’ notice in writing to the Contractor;
  • The Contractor may terminate this Agreement by giving two (2) weeks’ written notice to the Client.

15.2 Termination by the Contractor for misconduct

The Contractor may terminate this Agreement without any written notice if, at any time, the Client commits any act of serious misconduct. Circumstances that will amount to serious misconduct include, but are not limited to, circumstances where the Client, in the Contractor’s reasonable opinion:

  • commit any serious or persistent breach of any of the provisions of this Agreement;
  • otherwise commit any act which may bring the Contractor or any of its Related Body Corporate into disrepute;
  • become bankrupt or make any arrangement or composition with your creditors;
  • breach your obligations under this Agreement in relation to Confidential Information;
  • breach your obligations under this Agreement in relation to the due payment of the Service Fees and/or the providing the Material within the agreed time frame;
  • used inappropriate and offensive language directed at the Contractor, Nominated Consultant and/or Contractor Personnel;
  • an Insolvency Event occurs in relation to the Client;
  • breached any Applicable Law; or
  • commits any unlawful act of discrimination or harassment.

15.3 Termination with 1 weeks’ notice

  • The Contractor may terminate this Agreement by giving 1 weeks’ notice if there is a material change in direct or indirect ownership or control of the Client.

15.4 Fees payable upon termination

If this Agreement is terminated before completion of the Services, the Client must pay the Contractor for:

  • all Services performed up to the effective date of termination (whether completed or in progress); and
  • any approved expenses incurred but not yet invoiced.

No refunds will be provided for Services already delivered. If the Contractor terminates the Agreement without cause, the Client will not be liable for unperformed Services.

15.5 Consequences of termination

Upon the termination of this Agreement for whatever reason, the Contractor must (and must ensure that the Nominated Consultant and any Contractor Personnel), and the Client must (and must ensure that its employees, agents or contractors):

  • either:
    • to the extent possible return to the other party or its nominee all documents and material (originals and copies in machine readable or printed form) in relation to the other and its business including without limitation the Confidential Information and all copies of it; or
    • to the extent that return is not possible, destroy all copies of the other party’s Confidential Information in their possession or control, provided that at least seven (7) days’ prior written notice has been given to the other party;
  • deliver to the other party or its nominee all plant, equipment and all other property belonging to the other which are held by the other or which are otherwise in the possession, power, custody or control of the other or their respective employees, contractors, agents, servants or assigns.

16 LIABILITY

16.1 Limitation of Liability

The Contractor is not liable for any special, indirect or consequential loss or damage resulting in the provision of the Services (unless such loss or damage is reasonably foreseeable resulting from the Contractor’s failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or this Agreement (whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

16.2 Liability Cap

In all cases, the Contractor’s liability arising out of or in connection with the Services or this Agreement, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, is limited to the amount paid by the Client for the Service Fees.

16.3 Third Party Recommendations

In the event that the Contractor recommends any third party goods and/or services to the Client (the Recommendation), the Client agrees and acknowledges that the Contractor is not liable for any direct, special, indirect and/or consequential loss resulting in the Recommendation, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Recommendation (whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

16.4 Exclusion of Other Representations

Each of the parties acknowledges that, in entering into this Agreement, it does not so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

16.5 No Waiver

The Client agrees that the Contractor’s failure to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision.

16.6 Indemnity

The Client indemnifies the Contractor and must keep the Contractor indemnified against any claim arising out of or referable to:

  • Any wilful or negligent act or omission by the Client, its employees, officers, agents, contractors or related body corporate arising out of the performance of your obligations under this Agreement;
  • a breach or default by you, your employees, officers, agents, contractors or related body corporate of your obligations under this Agreement, including:
    • breach of any warranty given by you; or
    • any warranty given by you being false or misleading; or
    • any allegation that the Intellectual Property Rights of any third party has been infringed by you.

17 SUBCONTRACTING

The Contractor may subcontract the performance of its obligations, provided it remains fully responsible for the acts and omissions of its subcontractors.

18 DISPUTE RESOLUTION

18.1 Legal proceedings restriction

If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

18.2 Notice of dispute

A party to this Agreement claiming a dispute (the Dispute) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the Notice).

18.3 Negotiation period

On receipt of the Notice by the other party, the parties to this Agreement must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

18.4 Mediation

If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee and attend a mediation.

18.5 Mediation location and costs

It is agreed that mediation will be held in New South Wales. The parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation.

18.6 Confidentiality of negotiations

All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.

18.7 Mediation termination

If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.

18.8 Legal proceedings post-mediation

In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

19 GENERAL

19.1 Entire Agreement

This Agreement is the entire agreement between the parties about its subject matter and replaces all previous Agreements, understandings, representations and warranties about that subject matter.

19.2 Variation

No variation of this Agreement is effective unless made in writing and signed by each party.

19.3 Third party rights

Except as expressly provided in this Agreement, only those persons who execute this Agreement have a right or benefit under it.

19.4 Further assurances

Except as expressly provided in this Agreement, each party must, at its own expense, do all things reasonably necessary to give full effect to this Agreement and the matters contemplated by it.

19.5 Survival and merger

  • No term of this Agreement merges on completion of any transaction contemplated by this Agreement.
  • Clauses 8 and 9 survive termination or expiry of this Agreement together with any other term which by its nature is intended to do so.

19.6 Severability

Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.

19.7 Waiver

No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.

19.8 Cumulative Rights

Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law.

19.9 Assignment

The Contractor and/or the Nominated Consultant must not assign this Agreement or otherwise transfer the benefit of this Agreement or a right or remedy under it, without the prior written consent of the Client (which will not be unreasonably withheld). Any such purported assignment in breach of this clause shall be void, and shall constitute repudiation of this Agreement by the Contractor.

19.10 Costs, Expenses and Duties

Except as expressly provided in this Agreement, each party must pay its own costs and expenses of negotiating, preparing and executing this Agreement and any other instrument executed under this Agreement.

19.11 Governing Law

This Agreement is governed by the laws of New South Wales.

19.12 Jurisdiction

Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.

19.13 Counterparts

  • This Agreement may be executed in any number of counterparts and all of which, when those counterparts taken together, shall constitute one and the same instrument.
  • This Agreement may be executed by any of manual execution of a hard copy document and execution by electronic signature of an electronic document using ‘PandaDocs’, ‘SignIT’, ‘DocuSign’ or any other electronic signature program that has been agreed to by the parties in writing.
  • Delivery of an executed counterpart of a signature page of this Deed by facsimile or by PDF file (portable document format file) shall be effective as delivery of a manually executed counterpart of this Agreement.