TERMS AND CONDITIONS FOR THE PROVISION OF CONSULTING SERVICES

1                Acceptance (IT services)

(a)              Where applicable, each Deliverable (including, for the purpose of this clause, evidence of completion for Services with specified Completion Criteria if any) is subject to acceptance by COMPANY based on the Acceptance Criteria if any.

(b)              If COMPANY reasonably concludes that a Deliverable has failed the Acceptance Criteria, COMPANY will notify the Service Provider in writing of that failure.  The Service Provider will then perform, within an agreed timescale, such changes to the Deliverable (free of charge) to ensure that the Deliverable reasonably passes the Acceptance Criteria.

(c)              If the Deliverable fails the Acceptance Criteria multiple times (three or more times) or Service Provider fails to comply with its obligations under clause 1(b) within the agreed timescale, COMPANY may at its option:

• repeat the process outlined in clause 1(b);
• accept the Deliverable at an agreed reduction in the amount payable (or paid) for it;
• accept the Deliverable on the condition that any defects or faults with the Deliverable will be remedied within an agreed timeframe, in an agreed manner and on any other agreed terms; or
• reject the Deliverable and receive a full refund of all sums paid to the Service Provider in respect of that Deliverable.

(d)              For the purposes of this clause 1, “Acceptance Criteria” will mean the criteria for checks to be performed by COMPANY to ensure a Deliverable for an IT project meets the Objectives and COMPANY’s requirements as may be set out in the Details. 

(e) For clarity, this clause 1 (Acceptance) only applies where the Services are IT consulting services. 

2                Personnel

(a)              (Alternative personnel) Where a project plan is defined in the Details, if COMPANY reasonably requests the replacement of personnel then the Service Provider will use reasonable efforts to appoint an alternative person as soon as reasonably possible bearing in mind COMPANY’s project plan (if any).

(b)              (COMPANY premises requirements) The Service Provider will ensure that its personnel, when on COMPANY premises or when accessing COMPANY’s facilities, computer systems or information, comply as necessary with the requirements and directions of COMPANY with regard to conduct, behaviour, reporting, safety and security (including submitting to security checks as required and complying with any obligation imposed on the person by law).

(c)              (Non-Business Days) Where agreed in advance or where necessary for the provision of Services, the Service Provider agrees that COMPANY may request that the Service Provider’s personnel provide the Services on days other than Business Days and/or outside business hours.  Unless otherwise specified in the Details, the Service Provider is entitled to charge an hourly rate or, if a day rate is specified in the Details, a pro-rata of the day rate (charged per quarter day) for any such additional work plus a 10% surcharge.  

(d)              (Sub-contracting approval) Unless otherwise agreed, the Service Provider may sub-contract the fulfilment of part or all of its obligations under this Agreement without the prior written approval of COMPANY, subject to appropriate confidentiality obligations being obtained by any such sub-contractors. Unless otherwise agreed, the Service Provider will be responsible for all acts and omissions of the sub-contractor. 

(e)              (Key Resources) If a person is named as a key resource, then the Service Provider will only be entitled to remove that person from performing Services where requested to do so by COMPANY or as agreed in writing by COMPANY, unless that person is unable to work for the Service Provider by reason of illness or incapacity or similar.

 

3                Payment

(a)              (Terms) Unless otherwise agreed by the parties, the following payment terms shall apply. COMPANY is not required to pay any amount to the Service Provider under this Agreement until it has received an invoice which details the Services and Deliverables (if any) provided and the resulting amount due. Where the Fees are payable monthly, the Service Provider must raise an invoice to COMPANY within 90 calendar days of the end of the relevant month.  All fees and charges invoiced in accordance with this Agreement will be paid by COMPANY within 14 days of date of invoice, unless otherwise expressly provided by this Agreement. If any amounts under an invoice are disputed, the COMPANY will pay all undisputed amounts in accordance with this clause and the parties must do all things reasonable to promptly resolve any disputed amounts. COMPANY will not be liable for any disbursements or expenses incurred by the Service Provider in the provision of the Services unless such disbursements or expenses have first been approved in writing by COMPANY.

(b)              (Rates) The rates set out in the Details will remain the appropriate rates for the duration of this engagement, subject only to variation in writing signed by both parties.

(c)              (GST) Any prices, fees and other charges are inclusive of any and all taxes and duties excluding GST.

(d)              (Taxable Supplies) The parties acknowledge that some supplies made under or in connection with this Agreement may be Taxable Supplies and others may not.  To the extent that any supply made under or in connection with this Agreement is a Taxable Supply, then the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that supply (except to the extent that the consideration is expressed to be inclusive of GST). The additional consideration is payable at the same time and in the same manner as the consideration to which it relates.

(e)              (Costs and Expenses) If either party is entitled under this Agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity will be net of any input tax credits which may be claimed by the party being reimbursed or indemnified in relation to that expense or outgoing.

(f)               (Tax Invoice) The party that makes the supply must provide to the recipient of that supply a Tax Invoice as necessary to satisfy the relevant legislation.

(g)              (Applicability Of Australian Consumer Laws) Each party must comply with its obligations under the Australian Consumer Laws and, if necessary, any consideration payable for a supply will be adjusted accordingly.

4                Obligations

(a)              (Services) The Service Provider represents that it will perform its obligations under this Agreement with all due care and skill and in a proper and professional manner.

(b)              (Deliverables) The Service Provider represents that the Deliverables will perform the functions and meet the performance criteria set out in the Objectives (if any).

(c)              (Act reasonably) The COMPANY agrees to act reasonably when exercising its rights under this Agreement.

5                Insurance and legal requirements

(a)              (No authority) Subject to the provisions of this Agreement, the Service Provider must not without the consent of COMPANY (which may be implied) at any time make or permit to be made any representation that the Service Provider has authority to represent or bind COMPANY.

(b)              (Legal requirements) The Service Provider will perform and observe all obligations and requirements required of the Service Provider by law in relation to itself and its employees, including, but not limited to, paying all necessary wages, duties and imposts and taking out and continuing applicable workers’ compensation insurance and payment of any premiums, fees or charges required to be paid thereunder.

(c)               (Liability)  Neither party shall be liable to the other for consequential, special or indirect losses. 

6                Confidentiality

(a)              (Confidential Information) COMPANY and Service Provider must treat, and ensure that each of their employees, contractors and agents treat, as confidential, all information, data, documentation, computer facilities (including software or technology embedded in the software), trade secrets (including information relating to financial position, technical matters, internal management, policies or strategies), and any other material of the other party (whether owned or used by or licensed to the other party) disclosed in connection with this Agreement:

(i)            which is by its nature confidential or which is designated as confidential by that party; or

(ii)            which any of the parties knows, or ought to know, is confidential,

whether obtained before, on or after the date of this Agreement which is not in the public domain at the time the information was obtained from the disclosing party (“Confidential Information”).

(b)              (Use of Confidential Information) The party who receives the Confidential Information must not, without the written consent of the other party:

(i)               use it other than in performing its obligations or exercising its rights under this Agreement; or

(ii)              disclose it to any person except its employees, legal advisers, auditors, approved sub‑contractors, and in the case of COMPANY, contractors and consultants, and then only to those who need to know that information for the purpose of performing its obligations or exercising its rights under this Agreement.

(c)               (Exceptions) Neither Service Provider nor COMPANY will be in breach of this clause where the:

(i)               disclosure is required by law, a regulator or the rules of the stock exchange;

(ii)              Confidential Information is in the public domain through no fault or actions of the recipient, its employees, contractors, or agents; or

(iii)             Confidential Information was received by the recipient on a non-confidential basis from a third party who was not prohibited from disclosing it.

(d)              (Survival) These obligations of confidentiality supercede and override any other agreement related to confidentiality and survive termination of this Agreement.

(e)              (Indemnity) Each party indemnifies the other party and its Related Body Corporates against all liability, loss, damage, costs or expenses (including legal costs and expenses) which are incurred or suffered by any of them arising out of a breach by the first mentioned party of this clause.

7                Privacy

(a)             (Compliance with Privacy Law) the COMPANY must:

(i)               comply with the Privacy Act 1988 (Cth) and any additional and relevant Privacy Law by which it is bound;

(ii)              during and after the term of this Agreement take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorised access, modification or disclosure, including not disclosing any Personal Information to a third party without Service Provider's prior written consent, unless the third party is the individual to whom the information relates; and

(iii)             during and after the term of this Agreement not do anything with the Personal Information that will cause Service Provider to breach any Privacy Law and co-operate with it to resolve any complaint made under any Privacy Law.

8                Documents and other property

(a)              (Return of documentation) Upon termination of this Agreement, the Service Provider will, on request demand, deliver to COMPANY or its authorised representative or destroy all documents in the possession or control of the Service Provider relating in any way to any confidential information, trade secrets of, or to the business or affairs of COMPANY or any Related Body Corporate of COMPANY.

9                Intellectual property

(a)              (General) Unless otherwise agreed:

• COMPANY acknowledges that Service Provider owns Service Provider Materials and they are not assigned to COMPANY under this Agreement but a perpetual licence is granted by the Service Provider to use them for the purposes of obtaining the benefit of the Services or Deliverables; 
• COMPANY grants to Service Provider a licence to use COMPANY Materials for the purpose of performing the Services or developing the Deliverables; and
• for IT consultancy services (or as otherwise agreed in writing) the Service Provider assigns to COMPANY the Service Provider’s present and future right title and interest in any developed Intellectual Property in the Deliverables (if any). For all other consultancy services, the parties shall each own their developed Intellectual Property unless otherwise agreed in writing. 

(b)              (Moral rights) Unless otherwise agreed, the Service Provider can procure the waiver of and the express agreement of its employees not to enforce any and all moral rights that those employees may have, presently or in the future, in the Intellectual Property referred to in clause 9(a). 

10              Termination

COMPANY may by notice in writing terminate this Agreement with immediate effect if the Service Provider:

(a)              commits a material breach of this Agreement which it has not remedied within 30 days of receiving a notice from COMPANY requiring it to do so;

(b)              is, in the opinion of COMPANY (acting reasonably), unable to adequately provide the Services in accordance with the terms of this Agreement;

(c)              engages in conduct which in the reasonable opinion of COMPANY might tend to injure the reputation or business of COMPANY or its Related Bodies Corporate;

(d)              becomes subject to an Insolvency Event.  

11              Miscellaneous

(a)              (Include) The words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation.

(b)              (Variations) These terms may be updated from time to time. The terms in the Details cannot be updated unless agreed in writing between the parties. 

(c)              (No agency) The relationship between COMPANY and the Service Provider under this Agreement is to be that of principal and contractor, and nothing in this Agreement will be taken as constituting the Service Provider, or any person engaged by the Service Provider, as an employee or servant of COMPANY.

(d)              (Notices) All notices and other communications required to be given under this Agreement will be in writing and addressed to the relevant party at the address set out in this Agreement or such other address as that party has designated as its address in writing to the other party.

(e)              (Governing Law) The terms of this Agreement will be governed by the laws in force in the State of Victoria.

12              Definitions

            For the purposes of this Agreement:

• Agreement means these terms and conditions and the Details.
• Details means the document that sets out the details of the engagement.
• GST means the tax imposed under the GST Law.
• GST Law means A New Tax System (Goods and Services Tax) Act 1999 and the related imposition Acts of the Commonwealth.
• Intellectual Property means patents, patent rights, copyrights, rights in circuit layouts, registered designs, design rights, registered and unregistered trade marks, trade names, domain names, know how and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
• COMPANY means any of the following:
  • COMPANY, as defined in the Details; 
  • a company which is from time to time, a Related Body Corporate of COMPANY (a “COMPANY Related Body Corporate”)

in each case including international entities, as context requires.

• Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is received by COMPANY from any source as a consequence of the performance of its rights and obligations under this Agreement.
• Privacy Law means relevant Australian legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to the Personal Information.
• Related Body Corporate has the meaning given to it in section 50 of the Corporations Act (Cth) or any substitute legislation.
• Service Provider means Advance Networks Pty Ltd (also known as retub consulting)
• Service Provider Materials means any material: (A) in which Intellectual Property rights are owned or licensed by Service Provider or a Related Body Corporate of Service Provider and developed independently of the Services, or (B) acknowledged as owned by Service Provider pursuant to this Agreement, and used by Service Provider to provide the Services and necessary for the use of the Deliverables in accordance with the Objectives.
• Tax Invoice has the meaning it has in the GST Law.
• Taxable Supplies has the meaning it has in the GST Law.