SERVICES AGREEMENT TERMS
The Services Agreement between the Client (a Party) and the Consultant (a Party), together the Parties, is made up of a separate Services Agreement Letter and these standard Services Agreement Terms as follows:
1. Appointment and Term
1.1 The Client hereby appoints the Consultant to provide the Services managed by the Key Person, to the Client for the Term.
2.1 The Consultant agrees to provide the Services to the Client during the Term.
2.2 The Consultant acknowledges the Consultancy Fee is inclusive of all necessary calls on Consultant’s and Key Person’s time by the Client pursuant to this Services Agreement.
2.3 The Consultant may delegate the performance of any of the Services to persons other than the Key Person in its absolute discretion.
2.4 Should the Consultant fail to provide the Services to the Client for any reason, the Consultant may, in its sole discretion, propose an amendment to the Consultancy Fee proportional to the Services outcomes originally committed to.
2.5 Any matter relating to the performance of the Services may be raised by either Party in writing to the other Party within 10 business days of such matter occurring.
2.6 The Party receiving the matter must propose a remedy to the other Party within 10 business days and, if agreed by the raising Party, perform the rectification of the matter.
2.7 If the raising Party does not agree to the remedy they may raise a dispute in compliance with Clauses 13.3 and 12.1.
2.8 Any dispute raised triggers Clause 8.2 until such time as the dispute is resolved should the Services continue as part of the mediation agreement.
2.9 The Consultant agrees to promptly comply with all reasonable requests of the Client relating to the Services.
2.10 The Consultant agrees to provide the Services in a careful and competent manner and to the best of the Consultant’s skill and capability in the interests of the Client
3. Intellectual Property
3.1 The Parties own the intellectual property rights (including copyright, patents, trademarks and other rights and the right to apply for the registration of such rights) in all pre-existing works, documents and materials provided at the start of the Services.
3.2 All intellectual property rights in developed material created by or provided by the Consultant (either alone or with others) in the course of providing the Services vests in the Consultant and is licenced for use by the Client at nil consideration, upon settlement of the Remuneration, in perpetuity.
3.3 To the extent that the Consultant holds any moral rights in respect of any original material created by the Consultant (either alone or with others) in the course of providing the Services in any territory of the world, all such rights are reserved, but the Consultant hereby unconditionally and irrevocably consents for the benefit of the Client, its licensees and successors in title, to the Client making material alterations to that original material for any reason.
4.1 The Client will pay to the Consultant the Consultancy Fee and any out-of-pocket travel and accommodation expenses plus any Australian Goods and Services Tax (“GST”) for providing the Services set out in Services Agreement. Any out-of-pocket accommodation, meal and incidental expenses will be reimbursed at a rate determined by the Australian Tax Office Travel Allowances as updated periodically.
4.2 The Consultant will provide to the Client a valid tax invoice which complies with all relevant Australian legislation.
4.3 Payment in Australian Dollars by the manner indicated on the tax invoice must be made by the payment due date stated on the tax invoice.
4.4 If the Client does not pay any tax invoice by 30 days after the payment due date, the Consultant may charge interest at the rate of 2% above the cash target rate determined by the Reserve Bank of Australia applying at the date of the tax invoice.
4.5 The Client is responsible for any payment fees including, but not limited to fees related to: bank transfers, foreign exchange, credit cards, debit cards, charge cards and payment gateways.
4.6 The Consultant reserves the right to remove any discounts offered on the Consultancy Fee, and invoice the same, for the entire Services in the event of a non-payment of any tax invoices after 90 days after the payment due date.
5.1 The Consultant warrants that the results and proceeds of the Services are original to the Consultant and/or the Key Person or other Consultant personnel; or they will seek Client written permission and Client payment for all permissions and clearances in respect of any copyright material contained in the Services Agreement to enable the Client to exercise all rights in all media throughout the word in perpetuity and do not and will not infringe any rights of any third party.
6.1 The Client and the Consultant acknowledge that they are in a relationship of principal and independent contractor and that the Consultant provides the Services in the capacity of independent contractor only. In no circumstances will the Consultant be deemed to be an employee, servant or agent of the Client. Further, the parties agree that:
a. the liabilities and obligations of the parties arising out of or in connection with this Services Agreement are several and not joint or joint and several; and
b. a Party does not have the authority to pledge the credit of or to act for the other Party or to make representations, warranties or undertakings or assume obligations for or on behalf of the other Party; and
c. a Party is not an employee of the other Party and does not have any claim against the other Party for annual leave, public holiday, sick leave, long service leave or, to the extent permitted by the law, in respect of any claims under any Workers’ Compensation legislation, or on any other basis.
7.1 In the event of GST applying to any supply made under this Services Agreement, the Party making the supply may in addition to the relevant amount payable under this Services Agreement, but subject to having issued a valid tax invoice (as required by the GST legislation), recover from the other Party an additional amount on account of GST, such amount to be calculated in accordance with the relevant GST legislation.
8.1 The Consultant may cease providing Services if the Client fails to pay the Consultant tax invoices.
8.2 The Consultant may cease providing Services if the Client fails to provide the Consultant adequate instructions to deliver the Services.
8.3 Either Party may terminate this Services Agreement at any time by giving the other Party 30 calendar days’ notice in writing and settling any remuneration in clause 4.
8.4 This Services Agreement may be suspended or terminated immediately by the Client in the event of one or more of the following:
a. the Consultant or Key Person or other Client personnel becoming the subject of criminal proceedings and/or civil prosecution, and/or engaging in improper conduct which may adversely affect the interests of the Client; or
b. the Key Person or other Client personnel being precluded from taking part in the management of a corporation under the Corporations Act; or
c. the Consultant being deemed or declared insolvent; or
d. a Party stops carrying on its business in the normal manner.
8.5 This clause 8 survives termination or expiry of this Services Agreement.
9. Confidentiality and Publicity
9.1 The Consultant agrees that no information about the Client’s confidential affairs will be revealed during or after the Term without the express consent of the Client.
9.2 The Parties agree that no information about the Services or this Services Agreement will be revealed during or after the Term without the express consent of both Parties.
9.3 Clauses 9.1 and 9.2 do not apply to disclosures required by law or disclosures made to the Parties’ professional advisors.
9.4 The Client agrees that the Consultant may use the Client name, any Client-provided written testimonials and Client logo (if a business) in the normal course of marketing of the Consultant’s services.
10. Liability for Damages
10.1 The Client will not be liable in damages or otherwise for alleged loss of publicity or opportunity for the Consultant to enhance their professional reputation or for any other reason.
10.2 The Consultant’s limit of liability under this Services Agreement or in tort or any other cause of action will be equivalent to the amount paid by the Client to Consultant under this Services Agreement.
11. Other Workplace Laws
11.1 The Consultant and all other Consultant personnel must comply with all applicable legislation, regulations, guidelines, codes of practice or any other instrument made under legislation relating to the provision of the Services, including without limitation, obligations under current occupational and work health and safety laws including without limitation WHS Legislation and workers compensation laws.
11.2 The Consultant must, when using the Client’s premises, comply with all reasonable directions of the Client, including but not limited to documented procedures relating to occupational and work health, safety, anti-discrimination or harassment and security in effect at those premises. This obligation extends to all procedures and training which are given to the Consultant by the Client or which might reasonably be inferred by the consultant in all the circumstances.
11.3 All services and products supplied under this Services Agreement must comply with health and safety legislation.
11.4 The Consultant must promptly inform the Client of any adverse court or tribunal decision for a breach of any workplace relations, occupational and work health and safety or workers compensation laws made against it during the term of the Services Agreement and any remedial action it has taken, or proposes to take, as a result of the decision.
11.5 WHS Legislation means the Work Health & Safety Act 2011 (Cth) and Work Health & Safety Regulations 2017 (Cth) and all comparable State and Territory occupational and work health and safety laws and regulations in force.
12.1 Any notices or other communication relating to this Agreement must be in writing, in printed form and either posted or courier delivered to the mailing address of the other Party as detailed in the separate Services Agreement Letter.
13.1 The Services Agreement Letter and these Services Agreement Terms are the entire Services Agreement between the parties and supersedes any prior or contemporaneous Services Agreement, oral or in writing. There are no promises, terms, conditions or obligations, oral or written, expressed or implied other than those contained in the Services Agreement.
13.2 All remedies, rights, undertakings, obligations or Services Agreements of the Parties arising by law, this Services Agreement or otherwise shall be cumulative and shall not limit any other right, remedy, undertaking, obligation or Services Agreement of such Party.
13.3 Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, must be resolved by mediation in accordance with the NSW Small Business Commission Mediation Services.
13.4 Each Party acknowledges that in entering into the Services Agreement it has not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of this Services Agreement Terms.
13.5 Each Party agrees, at its own expense, to do anything another Party reasonably asks (such as obtaining consents, signing and producing documents and getting documents completed and signed) in order:
a. to bind the party and any other person intended to be bound under these Services Agreement Terms; and
b. to enable the requesting Party to exercise any rights granted under these Services Agreement Terms.
13.6 Despite any other provision of these Services Agreement Terms, no Party need act if it is impossible to act due to Force Majeure fires, floods, earthquakes, storms and other disturbances caused by the elements, riots, explosions, governmental action, acts of God, insurrection, act of terrorism war and any other cause which is not within the reasonable control of a Party and not a direct obligation of the Party under this Services Agreement). The non-performing Party agrees to notify the other party promptly after it determines that it is unable to act because of Force Majeure and agrees to make reasonable efforts to avoid or remove the cause of non-performance. This clause does not apply to payments by one Party to any other Party where that payment or part thereof accrues prior to a Party giving notice under this clause.
13.7 Each Party shall bear its own costs in relation to the negotiation, preparation and execution of the Services Agreement.
13.8 The Services Agreement Letter and these Services Agreement Terms are governed by the laws of the State of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of courts of that State.
13.9 If any provision of these Services Agreement Terms are determined by any statute or court having jurisdiction to be illegal, invalid, void or voidable that provision will be deemed to be deleted to the same extent and effect as if it was never incorporated, and the remainder of these Services Agreement Terms will continue in full force and effect.
13.10 Any approval consent authority or permission required under these Services Agreement Terms must not be unreasonably withheld.