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Terms & Conditions

  1. DEFINITIONS AND INTERPRETATION

In this Agreement unless otherwise indicated by the context or subject matter:

Agreement means this services agreement;

Authorised Officer means a director, secretary or other officer of a Party;

Business Day means any day that is not a Saturday or Sunday or a public holiday on which banks are open for general banking business in Melbourne, Victoria;

Commencement Date means the date of commencement of this Agreement specified in of Schedule 2;

Confidential Information means, in relation to a Party (Discloser), any information whatsoever, of a confidential nature, (whether provided verbally or by way of a document or other material in human or machine readable form) received by or discovered by the other Party in connection with the provision of the Services including, but not limited to, any information relating to:

  1. any of the Discloser’s business ideas or concepts, market research and marketing plans, business plans and projections, finances or personnel;

  2. details of any intellectual property, including trade marks, patents, copyrighted materials, business names, designs, trade secrets, drawings, know-how, plans, models, or computer software owned by or licensed to the Discloser;

  3. any business or person that the Discloser has, or plans to have, commercial dealings with;

  4. the terms on which the Services are provided;

  5. concepts not reduced to material form; and

  6. any combination of the above information in documents or otherwise;

Event of Default means each of the events set out in Clause 11.2;

Force Majeure means any of the following events:

  1. an act of God;

  2. war, warlike operations, insurrections, terrorist attacks or riots;

  3. fires, floods or explosions;

  4. serious accidents impacting upon the Consultant or an Authorised Officer of the Consultant;

  5. epidemics or quarantine restrictions;

  6. any act of government, a government agency, government priorities, allocation of regulations or orders impacting on the industry and services contemplated by this Agreement;

  7. any act or omission by any third party,

or any other event due to any other cause to the extent it is beyond the Consultant’s control or not occasioned by the Consultant’s default or negligence;

GST means Goods and Services Tax within the meaning of the GST Act;

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended from time to time);

Input Tax Credit has the same meaning as in the GST Act;

Loss means any loss, liability, damage, expense or cost whatsoever;

Parties means the Consultant and the Client and Party means any one of them;

Payment Period means the payment period set out at Schedule 1;

Service Fee means the amount specified in or calculated in accordance with Error! Reference source not found.Schedule 1 or such other amount as agreed between the Consultant and the Client;

Services means the services described in proposalError! Reference source not found. and to be performed in accordance with this Agreement;

Special Conditions means each of the special conditions

Tax Invoice has the same meaning as in the GST Act;

Taxable Supply has the same meaning as in the GST Act; and

Term means the term of this Agreement specified in terms and conditions or such further period of time as shall be mutually agreed between the Parties.

  1. Special conditions

This Agreement incorporates the Special Conditions. If there is any inconsistency between the terms of these General Conditions and a Special Condition, the Special Conditional will prevail to the extent of that inconsistency.

  1. ENGAGEMENT AND TERM

    1. Unless terminated earlier in accordance with Clause 11, this Agreement shall operate for the Term.

    2. During the Consultant’s engagement under the terms of this Agreement:

      1. the Consultant must ensure that the Services are provided to the Client in accordance with this Agreement; and

      2. the Client agrees to acquire the Services from the Consultant in accordance with this Agreement.

  2. CONSULTANT’S OBLIGATIONS

    1. The Consultant will be responsible for performing the Services.

    2. The Consultant must use its best endeavours to ensure that all Services are provided in accordance with this Agreement:

      1. with due skill and care.

      2. in accordance with all applicable professional regulations and standards; and

      3. in compliance with all applicable laws.

  3. CLIENT’s OBLIGATIONS

The Client must:

  1. use reasonable efforts to do everything necessary to give full effect to this Agreement.

  2. refrain from doing anything that may hinder the performance of this Agreement; and

  3. provide the Consultant with any information the Consultant reasonably requires to enable the Consultant to provide the Services.

  4. If the project is dormmate for more than three months, a fee of $1520 +GST will be incurred to the client in order to bring the project back to date.

  1. SERVICE FEE AND EXPENSE PAYMENT

    1. As per schedule 1 the Services are provided, the Consultant must, provide the Client with a Tax Invoice for the Service Fee.

    2. Subject to receipt of an invoice in accordance with Clause 6.1, the Client must pay to the Consultant the Service Fee within the payment terms specified on the invoice.

    3. Without prejudice to any other rights of the Consultant under this Agreement or otherwise, if invoices are not paid in accordance with the payment terms specified on the invoice, the Consultant reserves the right to discontinue providing the Services until the outstanding amount(s) have been remitted.

    4. On each anniversary of the Commencement Date, the Consultant may increase the Service Fee by an adjustment value in accordance with the Consumer Price Index (All Groups) Melbourne, Australia.

    5. Subject to the provision of satisfactory written evidence of the incurred expense, the Consultant will be reimbursed for all business related expenses, incurred in performing the Services, including any interstate travel expenses.

  2. GST

    1. The Consultant warrants that it is registered or required to be registered for GST under Part 2-5 of the GST Act and will continue to be so at all relevant times during the Term of this Agreement.

    2. The fee payable by the Client under Clause 6 of this Agreement is expressed on a GST‑exclusive basis.

    3. The Parties acknowledge that the Services provided by the Consultant constitute Taxable Supplies.

    4. If the Consultant makes a Taxable Supply in connection with this Agreement for consideration, then the Client must also pay, at the same time and in the same manner as the GST‑exclusive fees are otherwise payable, the amount of any GST payable in respect of the Taxable Supply made by the Client.

    5. If this Agreement requires the Consultant to make further and additional payments whether by way of reimbursement or contribution for an expense incurred in respect of an acquisition from a third party, for which the Consultant is entitled to claim an Input Tax Credit, the additional amount payable shall be net of any Input Tax Credits for which the Consultant is entitled in respect of the expense, plus any GST chargeable on the additional payment.

    6. The right and entitlement of the Consultant to payment under this clause is subject to a valid Tax Invoice being issued and delivered to the Client.

  3. INDEMNITY

The Client indemnifies the Consultant and its respective officers, directors, employees and agents from and against all Losses that it or they may sustain or incur and all claims, allegations, actions, proceedings or demands whatsoever which may be made or brought against it or them by any person in connection with or arising out of:

  1. any negligence or other wrongful act or omission of the Client, its employees or agents or of any persons for whose acts or omissions the Client is vicariously liable.

  2. any breach of this Agreement by the Client; and

  3. any Loss sustained or incurred by a third party in connection with this Agreement.

  1. Limitation of liability

    1. Under no circumstances will the Consultant be liable to the Client for any special incidental, indirect, statutory, exemplary, punitive or consequential damages, including loss of profits, arising out of or related to this Agreement or the breach hereof even if the Consultant has advance notice of the possibility of such damages.

    2. Except as expressly provided to the contrary in this Agreement, all conditions and warranties, whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally are excluded. Where any legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, such condition or warranty shall be deemed to be included in this Agreement. However, the liability of the Consultant for any breach of such condition or warranty shall if permitted by that legislation be limited by Clause 9.4 and, at the option of the Consultant, to any one or more of the following:

      1. the supplying of the Services again; or

      2. the payment of the cost of having the Services supplied again at the rate of the Service Fee set out in this Agreement.

    3. The Client warrants that it has not relied on any representations made by the Consultant which have not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by the Consultant.

    4. The total aggregate liability of the Consultant in respect of any Loss or damage suffered or incurred by the Client arising under or in connection with this Agreement shall be limited to the Service Fee paid to the Consultant under this Agreement.

  2. PERFORMANCE OF WORK FOR OTHERS

The Consultant is at liberty to provide services to other persons, firms or organisations of any nature whatsoever.

  1. TERMINATION

    1. The Parties may terminate this Agreement prior to the expiry of the Term by mutual written agreement.

    2. A Party may by written notice to the other Party terminate this Agreement prior to the expiry of the Term upon the happening of any of the following events:

      1. any payment invoiced under this Agreement to the other Party remains unpaid for a period of 7 days following the date on which the payment is due.

      2. subject to Clause 11.2(a), the other Party fails to observe or perform any provision of this Agreement and fails to remedy such breach within 14 days after written notice thereof has been given to it;

      3. the other Party commits any act of bankruptcy or insolvency or a petition is presented for the bankruptcy or winding up of the other Party or a resolution is passed for the winding up of the other Party otherwise than for the purposes of amalgamation or reconstruction.

      4. the other Party enters into a compromise arrangement with creditors.

      5. a receiver or official manager of the other Party is appointed to it or over any of its assets.

    3. Termination of this Agreement will not extinguish or affect:

      1. any rights of either Party against the other which:

        1. accrued prior to the time of termination or as a result of the termination; or

        2. otherwise relate to or may arise at any future time from any breach or non-observance of obligations under this Agreement which arose prior to the time of termination; or

  2. the provisions of this Agreement which by their nature survive termination.

  3. Upon termination of this Agreement without any further demand:

    1. each Party shall deliver to the other:

      1. documents in its possession or control relating in any way to any Confidential Information or trade secrets of, or to the business or affairs of, the other Party; and

      2. any property of the other Party or thing to which the other Party has an entitlement to possession; and

  4. other than where this Agreement is terminated due to an event under Clause 11.2 occurring in respect of the Consultant, all amounts that the Consultant would have been entitled to receive under this Agreement during the Term had the termination not occurred will become immediately due and payable by the Client to the Consultant.

  5. CONFIDENTIALITY

    1. A Party must not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information otherwise than in accordance with this Agreement.

    2. A Party may disclose Confidential Information of the other Party:

      1. if, but only to the extent that, it is legally compelled to disclose the other Party’s Confidential Information; and

      2. to those of its employees and contractors and any regulatory agencies to the extent only that each of them need to have access to the Confidential Information to enable the disclosing Party to exercise its rights or satisfy its obligations under this Agreement.

    3. A Party disclosing Confidential Information of the other Party in accordance with Clause 12.2(b), must ensure that each relevant disclosee does not publicly disclose the other Party’s Confidential Information or use the other Party’s Confidential Information for any purposes other than the purposes for which it was disclosed to the relevant disclosee.

    4. Each Party acknowledges and agrees that this Clause 12 does not apply to information:

      1. that is already in the public domain through no fault of either Party or breach of this Agreement.

      2. received from a third party entitled to disclose it (i.e. without any breach of confidentiality by the third party); or

      3. developed independently.

    5. Each Party agrees that upon the termination of this Agreement it will continue to be bound by the obligations placed upon it by this Clause 12.

    6. Each Party acknowledges that the other Party shall be entitled (in addition to any entitlement to damages) to any injunction or other equitable relief with respect to any actual or threatened breach by it of Clause 12 and without the need on the part of the other Party to prove any special damage.

  6. FORCE MAJEURE

    1. If the Consultant is delayed or prevented from carrying out any of its obligations under this Agreement due to an event of Force Majeure, the Consultant will be excused from performing such obligations for as long as and to extent that the prevention or delay lasts and the failure to perform such obligations will not constitute a breach of this Agreement by the Consultant or result in an Event of Default in respect of the Consultant.

    2. Where the Consultant is affected by a Force Majeure event, it must promptly notify the Client of:

      1. the event or circumstance, and

      2. the expected duration of the event,

and if the Consultant has notice of any event or circumstance which is not, but may become, an event of Force Majeure, the Consultant must notify the Client of the event or circumstance.

  1. Immediately after an event of Force Majeure ceases to have effect upon the Consultant, the Consultant must notify the Client and the obligations of the Consultant will immediately resume.

  2. Where the Consultant is affected by an event of Force Majeure, it will take such steps as are reasonable in the circumstances (in the Consultant’s discretion) in order to alleviate or remedy the effects of the Force Majeure to the extent that such effects are capable of being alleviated or remedied.

  3. For the avoidance of doubt, the Consultant has no responsibility or liability whatsoever for Loss suffered by the Client, delay or completion of any Services or other obligation under this Agreement arising out of, in connection with, or incidental to, or because of an event of Force Majeure.

  1. LEGAL RELATIONSHIP

The legal relationship between the Client and the Consultant is that of principal and independent contractor and not that of employer and employee, partnership or joint venture.

  1. ASSIGNMENT

A Party to this Agreement will not assign or purport to assign any of its rights under the Agreement without the prior written consent of the other Party.

  1. notices

    1. Notices under this Agreement must be in writing and may be delivered by prepaid postage, by hand or by email to a Party at the address specified in the document or another address subsequently notified by a Party to the other.

    2. Notices are deemed to be given:

      1. if sent by prepaid post, two days after deposit in the mail;

      2. if delivered by hand, immediately upon delivery; or

      3. if sent by email upon completion of the transmission.

  2. SEVERABILITY

    1. The Consultant and the Client consider the covenants, obligations and restrictions in this Agreement (Covenants) reasonable in all circumstances.

    2. Each and every part of the Covenants will be deemed to be a severable and independent covenant with the intent that if they are, taken together, adjudged to go beyond what is reasonable in all the circumstances but would be adjudged reasonable with any one or more of those Covenants or parts deleted, then the Covenants will be deemed to apply as if the parts adjudged unreasonable were deleted.

  3. NO WAIVER

Failure or omission by either Party at any time to enforce or require strict or timely compliance with any provision of the Agreement will not affect or impair that provision in any way or the rights of either Party to avail itself of the remedies it may have in respect of any breach of any such provisions.

  1. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement of the Parties regarding the matters dealt with in it and supersedes all prior agreements, understandings and negotiations regarding those matters.

  1. VARIATION

A provision of or a right created by this Agreement will not be changed or modified in any way except by written agreement between the Parties.

  1. GOVERNING 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 the State of Victoria, Australia, and the Parties submit to the jurisdiction in the Courts of that State.

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