Services Agreement

1. Definitions

   In this agreement, unless the context indicates otherwise, the following words have the following meanings:

   Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

   Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Company in the course of the Company’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.

   Consultant’s Personnel means any person or persons that the Consultant designates to perform the Services on the Consultant’s behalf.

   Consultancy Services means the consultancy services to be provided by the Consultant under this agreement.

   Facilities means working space, computer equipment, access to the internet and the Company’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by the Consultant in order to perform the Consultancy Services.

   Fees means [specify amount or refer to an amount or rates set out in the Specification, a schedule to this agreement, or another specific document (which should ideally be annexed as a schedule)].

   GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

   Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.

   Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

   Parties means the Consultant and the Company, and Party mean eithers one of them.

   Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth).

   Specification means the details of the Consultancy Services as set out in the specification in schedule 1.

   Termination Date means the earlier of:

   • (a)the date of termination of this agreement by the Company or the Consultant; and
   • (b)the date of expiry of this agreement.
2. Interpretation

   In this agreement unless the context otherwise requires:

   • (a)words importing any gender include every gender;
   • (b)words importing the singular number include the plural number and vice versa;
   • (c)words importing persons include firms, companies and corporations and vice versa;
   • (d)references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
   • (e)reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
   • (f)any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
   • (g)the headings to the clauses and schedules of this agreement are not to affect the interpretation;
   • (h)any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
   • (i)the word “including” (and related forms including “includes”) means “including without limitation”.

• (a)The Consultant will provide the Consultancy Services to the Company in consideration for the Company paying the Fee to the Consultant, subject to the provisions of this agreement.
• (b)The Consultant and the Company will agree the time and place for the performance of the Consultancy Services subject to the availability of the Consultant’s staff and agents
• (c)The Consultant will use reasonable endeavours to complete the Consultancy Services
• (d)The Consultancy Services will be performed by the employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services [as set out in the Specification / as agreed, from time to time by the [Consultant’s Personnel / Parties / [insert name of particular consultant]]].
• (e)The Consultancy Services to be performed as agreed by the Parties

The Consultant will provide the Consultancy Services in places and locations [as the Consultant considers appropriate to the type and nature of the requirements of the Company / as set out in the Specification / as agreed by the Parties from time to time].

1. Payment of Fees
   • (a) In consideration of the provision of the Consultancy Services in accordance with this agreement, the Company will pay the Consultant the Fees.
   • (b) Where the Consultant’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis
   • (c) The Company acknowledges that the Fees are exclusive of any GST that may be charged by the Consultant to the Company, and therefore, the Consultant will be entitled to add on GST.
2. Invoicing
   • (a) The Consultant will provide the Company with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4.
   • (b) An invoice for 50% payment of the total invoice (including GST) will be provided by the Consultant as is payable by the Company before any commencement of work by the Consultant. Remainder 50% will be invoiced when the project is complete.
   • (b) Payment will be made by the Company to the Consultant within the set period of days outlined on the Consultant’s invoice.
   • (c) When making a payment, the Company must quote relevant reference numbers and the invoice number.
   • (d) The invoice referred to in 4.2(b) must include the following details before payment can be approved and forwarded:
     • (i)date of Consultancy Services;
     • (ii)name of individual provided by the Consultant;
     • (iii)description of Consultancy Services provided;
     • (iv)time allocated per task; and
     • (v)the ABN of the Consultant.
3. Variation of Fees

   The Consultant is entitled to vary the hourly rates during the term of this agreement with written notice to the Company of 14 days prior to the change being implemented.

4. Costs and disbursements
   The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, accommodation, photocopying, courier services, postage.

5. Failure to pay If the Company does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, the Consultant is entitled to do any or all of the following:
   • (a) charge interest on the outstanding amount at the rate of 10% per year above the base lending rate of Bendigo Bank accruing daily;
   • (b) require the Company to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
   • (c) not perform any further Consultancy Services (or any part of the Consultancy Services).

• (a) If the company:
  • (i) makes a notice in writing to the Consultant; and
  • (ii) has reasonable grounds which have been disclosed and discussed with the Consultant,

• (b) If the Company makes the requirement referred to in clause 5(a), the Consultant must, as soon as it is practicable:
  • (i) cease to provide the service of the particular person or persons in respect of the Company’s business; and
  • (ii) provide the services of an alternative person or persons as may be reasonably acceptable to the Company.

• (a) During performance of the Consultancy Services the Company will:
  • (i) co-operate with the Consultant as the Consultant reasonably requires;
  • (ii) provide the information and documentation that the Consultant reasonably requires;
  • (iii) make available to the Consultant such Facilities as the Consultant reasonably requires; and
  • (iv) ensure that the Company’s staff and agents cooperate with and assist the Consultant.
• (b) The Company will not charge for the Consultant’s use of the Facilities made available by the Company.
• (c) If the Company does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Consultant will be paid by the Company.

• (a) Nothing in this agreement constitutes the relationship of employer and employee between the Company and the Consultant or between the Company and the Consultant’s Personnel.
• (b) It is the express intention of the Parties that any such relationships are denied.

• (a) The Consultant is permitted to use other persons to provide some or all of the Consultancy Services.
• (b) The Consultant is responsible for the work of any of the Consultant’s subcontractors.
• (c) Subject to clause 8(d), any work undertaken by any of the Consultant’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
• (d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.

• (a) The Consultant must communicate to the Company promptly and fully all discoveries, improvements and inventions made or conceived by the Consultant or the Consultant’s Personnel (either solely or jointly with others) in the course of performing the Consultancy Services which are similar to the actual or anticipated business, work or investigations of the Company or which result from or are suggested by any work performed for the Company (Inventions).
• (b) Any Inventions, whether or not they contain intellectual property rights capable of protection, are and remain the sole and exclusive property of the Company or its nominees.
• (c) The Consultant acknowledges that the Company (or its associated entities or persons) owns all Intellectual Property created by the Consultant in connection with the Consultancy Services, that now exists or that later comes into existence.
• (d) The Consultant agrees to indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach of this clause 9 by the Consultant or the Consultant’s Personnel.
• (e) The obligations accepted by the Consultant under this clause 9 survive termination or expiry of this agreement.

• (a) The Consultant must keep the Company’s, and any Related Body Corporate of the Company’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
• (b) The Company and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this agreement will also be regarded as Confidential Information. The Consultant agrees that the Consultant’s obligations in clause 10(a) extend to this category of information.
• (c) The Consultant’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by:
  • (i)the Company, in the case of Confidential Information pertaining to the Company’s business; and
  • (ii)the Company’s client, in the case of Confidential Information pertaining to the business of any of the Company’s clients.
• (d) At the Termination Date, or when earlier directed by the Company:
  • (i)all Confidential Information must be returned to the Company, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Consultant makes and any software that the Consultant creates based on the Confidential Information; and
  • (ii)the Consultant will must erase and destroy any copies of any software containing or comprising the Confidential Information in the Consultant’s possession or under the Consultant’s control or that may have been loaded onto a computer possessed or controlled by the Consultant.
• (e) The Confidential Information does not include information which:
  • (i)is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by the Consultant; or
  • (ii)was known by the Consultant prior to the Company disclosing the information to the Consultant.
• (f)The Consultant agrees that the Company may require any of the Consultant’s Personnel to sign a confidentiality agreement in a form that the Company approves, as a condition of the Company’s acceptance of any of the Consultant’s Personnel.
• (g)The Consultant agrees to indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach of this clause 10 by the Consultant.
• (h)The Consultant acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Company may obtain injunctive relief against the Consultant for any breach of this clause 10.
• (i)The obligations accepted by the Consultant under this clause 10 survive termination or expiry of this agreement.

1. Warranties
   • (a) The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services
   • (b) If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently in breach of this agreement, then, if requested by the Company, the Consultant will re-perform the relevant part of the Consultancy Services, subject to paragraphs 11.6(a) and 11.6(b) below.
   • (c) The Company’s request referred to in paragraph 11.1(b) must be made within 3 months of the Completion Date.
2. Insurances The Consultant must take out all insurance required by law including:
   • (a) worker’s compensation insurance as prescribed by law for the Consultant’s Personnel; and
   • (b) public liability insurance for a minimum of an amount to be agreed for each occurrence.
3. Employees and subcontractors
   • (a) The Consultant covenants that the Consultant is solely responsible for the payment to the Consultant’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Consultant’s employees or agents.
   • (b) The Consultant must otherwise comply with legislation applicable to the Consultant’s employees and agents.
4. Compliance with all laws

   Throughout this agreement the Consultant must comply at the Consultant’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority. This requirement applies the Consultant or to the Consultancy Services. The Consultant must indemnify the Company from and against all actions, costs, charges, claims and demands in respect thereof.

5. No warranties in relation to completion

   The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by [a given completion date / the Completion Date] or any other date, whether stated in this agreement, the Specification or elsewhere.

6. Limitation on liability
   • (a)Except in the case of death or personal injury caused by the Consultant’s negligence, the liability of the Consultant under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Company to the Consultant under this agreement. The provisions of 11.6(a) will not apply to clauses 11.4 or 11.7.
   • (b)Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clauses 11.4 or 11.7.
7. Indemnity

   The Company must indemnify and hold the Consultant harmless from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Company by the Consultant, its employees or consultants, or supplied to the Consultant by the Company within or without the scope of this agreement.

8. No reliance

   Each of the Parties acknowledges that, in entering into this agreement, it does not do 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.

9. ABN
   • (a)The Consultant must supply the Company with evidence of the Consultant’s ABN and must include this number on any statement provided to the Company.
   • (b)The Consultant acknowledges that if the Consultant fails to provide an ABN, then the Company is entitled to withhold any proportion of the payments to the Consultant as may be required under the relevant law for tax purposes.
10. Limitation Consultant’s power
    • (a)The Consultant warrants that he or she has no authority to engage the services of any person as an employee or agent of the Company.
    • (b)The Consultant warrants that the Consultant will not incur any liability on behalf of the Company or in any way pledge or purport to pledge the Company’s credit or accept any other or make any contract binding upon the Company without prior approval being given by the Company.
11. Survival of obligations

    The obligations accepted by the Consultant and the Company under this clause 11 survive termination or expiry of this agreement.

• (a)Either Party may terminate this agreement by notice in writing to the other if the Party notified:
  • (i)fails to observe any term of this agreement; and
  • (ii)fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days’ notice of the breach being given in writing by the notifying Party to the other Party.
• (b)Either Party may terminate this agreement upon the happening of any of the following events:
  • (i)the giving of at least 1 month’s written notice by one Party to the other Party of the intention to terminate this agreement;
  • (ii)if the Company enters into a deed of arrangement or an order is made for it to be wound up;
  • (iii)if an administrator, receiver or receiver/manager or a liquidator is appointed to the Company pursuant to the Corporations Act 2001 (Cth); or
  • (iv)if the Company would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
• (c)The Company may, at its discretion, pay to the Consultant the equivalent amount of the fees payable by the Company to the Consultant during the notice period in lieu of any notice period relating to termination of this agreement under paragraph 12(a)(i).
• (d)Upon termination of this agreement any fees, expenses or reimbursements payable by the Company to the Consultant in respect of any period prior to the Termination Date must be paid by the Company within 7 days after the Termination Date.

1. Force majeure
   • (a)Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.
   • (b)The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
   • (c)If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
2. Amendment This agreement may only be amended in writing signed by duly authorised representatives of the Parties.
3. Assignment
   • (a)Subject to paragraph 13.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.
   • (b)A Party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this agreement.
4. Entire agreement
   • (a)This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.
   • (b)The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
5. Waiver
   • (a)No failure or delay by the Consultant in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
   • (b)The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
6. Agency, partnership etc
   • (a)This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
   • (b)Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
7. Further assurance

   Each Party to this agreement must, at the request and expense of the other, do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

8. Severance

   If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

9. Announcements
   • (a)Subject to paragraph 13.9(b), no Party may issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.
   • (b)No Party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.]
10. Work, health and safety The Consultant must comply with all relevant work, health, safety and welfare standards and regulations determined by the Company or as prescribed by legislation.
11. Law and jurisdiction This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in NSW, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of NSW.