Standard Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires or permits:
“Agreement” means the agreement comprising the Principal Terms of Conditions, the Standard Terms and Conditions and, to the extent the
Supplier is engaged for a Particular Engagement, the terms and conditions contained in the applicable Statement of Work;
“Company’s Intellectual Property” means any and all Intellectual Property Rights in and to any and all:
(a) literary or artistic works or other subject-matter in which copyright subsists;
(b) know-how, processes, ideas, concepts or business models;
(c) Confidential Information;
(d) computer software, programs, prototypes, applications or designs; and
(e) brand names, graphic images and logos,
developed, created or produced by or on behalf of the Company or otherwise owned by the Company;
“Company Resources” means the Company’s Intellectual Property and such of the Company’s equipment, resources and other materials, including without limitation computers, laptops, tablets, telephones, modems, software, manuals or client resources as may be made available to the Supplier
in accordance with this Agreement;
“Confidential Information” means all:
(a) information which is proprietary to, about or created by the Company in relation to the Company’s business;
(b) information the disclosure of which could be detrimental to the interests of the Company;
(c) information which is designated as Confidential Information by the Company;
(d) information which from all the relevant circumstances could reasonably be assumed by the Supplier to be confidential and proprietary
to the Company; and
(e) information which is not generally known by the Supplier that is provided to it by the Company.
“Event of Default” means any act of wilful, serious or persistent misconduct or neglect by the Supplier, including without limitation:
(a) any breach of this Agreement by the Supplier which is not capable of remedy;
(b) any breach of this Agreement by the Supplier which is capable of remedy and such breach is not remedied within seven (7) days of the Company’s notice of such breach to the Supplier; or
(c) the Supplier committing an act of bankruptcy, making any composition or arrangement with its creditors, going into liquidation whether voluntary or compulsory, entering into voluntary administration, having any order made or resolution passed for its winding up, ceasing or preparing to cease trading, suffering the appointment of a receiver or administrator of the whole or part of any of its assets, having an administrator, a trustee, a liquidator or provisional liquidator or a receiver or a receiver and manager appointed to it;
“Intellectual Property Rights” means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction;
“Moral Rights” has the meaning given to that term by the Copyright Act 1968 (Cth), as amended, and includes all rights of a similar nature throughout the universe;
“Notice Period” means the notice period stated in the applicable Statement of Work of if no such notice period is stated, it means the period
of 7 (seven) days;
“Tax Invoice” means a valid tax invoice complying with applicable laws and regulations;
“Term” means the period from the date of this Agreement until twelve months from the completion of the Services pursuant to the final Statement of Work issued by the Company, subject to earlier termination in accordance with this Agreement; and
“Works” means all copyright works or material and other works or material (including works capable of design, patent or other forms of intellectual property protection) created (whether in whole or in part) by the Supplier at any time in connection with the provision of the Services in accordance with this Agreement and includes all Deliverables including any and all drafts, versions and revisions of the whole or any part of the Deliverables.
1.2 In this Agreement, unless the context otherwise requires or permits:
(a) where any word or phrase is given a defined meaning, then other parts of speech and grammatical forms of that word or phrase
will have a corresponding meaning;
(b) the use of headings, underlining or marginal notes are included for convenience and ease of reference only and do not affect
interpretation of this Agreement;
(c) references to the singular number includes the plural and vice versa;
(d) references to a gender includes any gender;
(e) reference to parties means the parties to this Agreement and to a party means a party to this Agreement;
(f) references to a party will include as the context requires that party’s respective executors, administrators and successors;
(g) references to clauses, subclauses, paragraphs, annexures and schedules are references to clauses, subclauses, paragraphs,
annexures and schedules in this Agreement;
(h) the words “including” and “includes” and similar words are not words of limitation;
(i) a provision of this Agreement is not to be construed adversely against a party solely on the ground that the party or its solicitors
were responsible for the preparation of this Agreement or of a particular provision of this Agreement; and
(j) if the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a business day, that act, matter
or thing may be done on the next business day, a business day being a day on which banks are open for general banking business.
2.1 The Company hereby engages the Supplier to provide the Services on a non-exclusive basis as required by the Company for a Particular Engagement in accordance with the applicable Statement of Work.
2.2 The Supplier must provide the Services as set out in the relevant Statement of Work in accordance with the terms and conditions of this Agreement and the reasonable instructions of the Company, including without limitation the delivery of the Deliverables by the applicable Delivery Dates, time being of the essence.
2.3 The Supplier must design and create the Deliverables to the best of the Supplier’s ability before delivering the Deliverables to the Company.
2.4 The Supplier acknowledges that the Company may expand the scope of the Services in relation to a Particular Engagement by providing the Supplier with a revised Statement of Work.
2.5 The Company may reject delivery of any Deliverable if the relevant Deliverable has not been prepared in accordance with the relevant Statement of Work or the requirements of the Company which have been notified to the Supplier and otherwise in accordance with the terms and conditions of this Agreement. If the Company rejects any Deliverable(s), then the Company will be entitled to require the Supplier to recreate the relevant Deliverable(s) and deliver the revised Deliverable(s) to the Company as soon as possible and no later than the new Delivery Date specified by the Company provided that such new Delivery Date will give the Supplier a reasonable period of time to effect such revision.
2.6 Delivery of all Deliverables must be (if possible) effected by delivery in accordance with the requirements of the applicable Statement of Work.
2.7 The Supplier undertakes to the Company that the Supplier will:
(a) provide the Services with due skill and care and to the best of its knowledge and expertise;
(b) provide the Services in accordance with all reasonable directions given by the Company from time to time, and in compliance with all applicable laws and regulations;
(c) report to the Company’s designated representative(s) from time to time as required by the Company;
(d) abide by the workplace policies of the Company and the Company Client when attending their respective premises and follow all reasonable instructions of the respective representatives of the Company and the Company Client whilst attending such premises;
(e) not discuss or refer to the Services, the Deliverables, the Supplier, the Company Client or use any Confidential Information in any form
of social media.
2.8 The Supplier must deliver to the Company at any time on request all copies of such portions of the Works as have been written, revised, amended or altered at the time of request, together with all documents, drafts, copies, disks and other computer records and notes relating to the Works.
2.9 The Supplier will be responsible for providing any equipment, tools, resources, facilities, vehicles and other materials that may be necessary to perform the Services in accordance with this Agreement and the relevant Statement of Work. The Company may provide the Supplier with access to the Company Resources as the Company reasonably considers necessary to perform the Services and the Supplier agrees that:
(a) any Company Resources provided to the Supplier will at all times remain the property of the Company;
(b) the Supplier must ensure that reasonable care is taken of all Company Resources provided to the Supplier at all times and the Supplier will be responsible for any loss or damage to any Company Resources while those Company Resources are in the possession, custody, power or control of the Supplier (fair wear and tear excepted);
(c) the Supplier must ensure that any Company Resources are returned to the Company when required by the Company in the same condition as such Company Resources were in when they were provided to the Supplier (fair wear and tear excepted), along with any instruction manuals or other materials relating to those Company Resources; and
(d) if any Company Resources are not returned to the Company within 7 (seven) days of the date specified by the Company in accordance with clause 2.9(c) above, the Supplier will be liable to the Company for the replacement cost of those Company Resources and the Company will be entitled to deduct those costs from any amount payable to the Supplier in accordance with this Agreement.
2.10 The Company will grant to the Supplier, during the Term (but only during those periods where a Statement of Work is in effect), a non-exclusive non-transferable licence to use the Company’s Intellectual Property to enable the Supplier to perform the Services.
2.11 The Supplier acknowledges that the Company will be free to engage an additional or replacement supplier or suppliers of its choice to provide the Services or any part of them at any time during and/or after the Term irrespective of whether or not any relevant Statement of Work has been terminated or the Services of any relevant Statement of Work not yet completed.
2.12 The Supplier must not subcontract the provision of all or any part of the Services of the Supplier in accordance with this Agreement to a third party or contract with any person to provide any part of the Services of the Supplier in accordance with this Agreement.
2.13 [endif]In the event of and to the extent of any conflict between a Statement of Work, the Principal Terms and Conditions and the Standard Terms and Conditions, the Statement of Work will prevail, followed by the Principal Terms and Conditions. Any terms used in these Standard Terms and Conditions and/or in the Statement of Work which are defined in the Principal Terms and Conditions will have the meaning as set out in the Principal Terms and Conditions.
3. FEES AND EXPENSES
3.1 Subject to Supplier complying in full with the Supplier’s obligations under this Agreement (including for the avoidance of doubt the relevant Statement of Work) and provided that the Supplier is not in breach of this Agreement, the Company will pay the Fees to the Supplier in accordance with the payment terms set out in the applicable Statement of Work.
3.2 Notwithstanding clause 3.1 above, the Company is not obliged to make any payments due to the Supplier until the Supplier has issued a Tax Invoice to the Company for an amount equal to the amount due (exclusive of GST) plus an amount equal to the GST on such amount where relevant. All payments by the Company under this clause 3 will be made within 30 (thirty) days of receipt by the Company of a Tax Invoice from the Supplier.
3.3 The Supplier acknowledges that is shall be responsible for paying its own expenses incurred in relation to the performance of the Services and the provision of the Deliverables to the Company, except to the extent that the Company agrees to reimburse the Supplier’s expenses pursuant to a Statement of Work. The Supplier must provide any receipts or other evidence of the amount of such approved expenses for approval by the Company prior to the Supplier requesting reimbursement of such expenses.
3.4 The Supplier acknowledges and agrees that the remuneration paid to the Supplier pursuant to this Agreement is full, equitable and adequate consideration for all work performed, material provided and rights granted according to this Agreement and no further payments of any kind are due to the Supplier.
3.5 The Supplier acknowledges and agrees that the Company may deduct and withhold from any remuneration payable to the Supplier under this Agreement any amounts required to be deducted and held under any provision of statute or regulation, including any present or future tax, levy, impost, deduction, charge, duty or withholding of any kind (whether direct or indirect) and any related interest, penalty, fine or expense in connection with any of them levied or imposed by any government or quasi-government agency in any country.
3.6 All payments due to the Supplier under this Agreement will be paid in accordance with the payment details contained in the relevant Tax Invoice issued by the Supplier.
4.1 The Supplier acknowledges that the Supplier’s engagement in respect of a Particular Engagement may be terminated:
(a) at any time by the Company giving to the Supplier notice in writing of its intention to terminate of at least the Notice Period stated in the relevant Statement of Work in respect of the Particular Engagement (if a Statement of Work is in effect on the day when the notice or provided), it being acknowledged that such termination will not itself result in the termination of this Agreement; or
(b) immediately by written notice to the Supplier, irrespective of the Notice Period in the relevant Statement of Work, if an Event of Default occurs, it being acknowledged that such termination will also result in the automatic termination of this Agreement.
4.2 This Agreement may be terminated at any time by either party giving to the other party one month’s notice in writing (if no Statement of Work is in effect on the day when such notice is provided), it being acknowledged that the Supplier shall not be entitled to terminate this Agreement whilst a Statement of Work is in effect.
4.3 The Supplier acknowledges and agrees that the Supplier’s obligations under this Agreement will continue during the applicable notice period in the event that either party serves notice to terminate this Agreement.
4.4 Upon termination of the Supplier’s engagement (and, if applicable, this Agreement):
(a) if such termination is pursuant to clause 4.1(a), upon receipt of the termination notice, the Supplier agrees to:
(i) cease immediately the provision of any further Services and the incurring of any further expenses in relation to the applicable Statement of Work;
(ii) consult with the Company as to what extent the Company requires any of the incomplete Services to be carried out during the remainder of the applicable Notice Period, it being agreed that it will be at the Company’s discretion to decide to what extent it requires any further Services to be performed by the Supplier; and
(iii) to the extent that the Company requires any further Services to be performed, the parties shall agree the relevant part of the Fee payable for the performance of such further Services and any associated Deliverables;
(b) the Company must pay to the Supplier such part of the Fee as represents the proportion of the Services performed and the Deliverables delivered up to the service of the termination notice, together with any agreed expenses in accordance with the applicable Statement of Work, such sums to be paid within 30 (thirty) days of such termination;
(c) the Supplier must pay or repay any sums lawfully owing by the Supplier to the Company immediately (whether such sums are then due to be paid or not) and, if any such sums are not paid or repaid by the Supplier, the Company will be entitled to deduct those sums from any amount payable to the Supplier in accordance with this clause 4.4;
(d) the Company will have no further obligations to the Supplier under this Agreement including for the payment of any part of the Fee which relates to the period following such termination;
(e) all Company Resources, any other property belonging to the Company and copies of any Confidential Information in the possession, custody, power or control of the Supplier must be returned to the Company immediately;
(f) if any Company Resources are not returned to the Company within 7 (seven) days of termination of this Agreement, the Supplier will be liable to the Company for the replacement cost of those Company Resources (as the case may be) and the Company will be entitled to deduct those costs from any amount payable to the Supplier in accordance with this clause 4.4;
(g) the Company will be entitled to make alternative arrangements for the provision of the Services and all rights granted to the Company and the benefit of all waivers and consents by the Supplier in accordance with this Agreement will remain with the Company; and
(h) such termination will not prejudice or impair any rights or remedies that have already accrued to any party under or in respect of any breach of this Agreement.
5. WARRANTIES AND INDEMNITIES
5.1 The Supplier hereby warrants, represents, undertakes and agrees that:
(a) the Supplier has the full right, power and authority to enter into and perform this Agreement and to grant and assign all rights and benefits hereby granted and assigned to the Company and the Supplier is the sole owner of all such rights and benefits free from all encumbrances;
(b) the Works are and will be wholly original to the Supplier except in so far as they may be based on material supplied by the Company and will not infringe or be likely to infringe or to give rise to a claim of infringement of Intellectual Property Rights by any third party;
(c) the Supplier will carry out the Services in a conscientious, expeditious and professional fashion, to the best of its abilities, and that the Services and the results of the Services will be in conformity with this Agreement (or the relevant Statement of Work in relation to a Particular Engagement), professional, of high quality and workmanship and otherwise satisfactory;
(d) no third party holds or will hold any right, title or interest of any kind in or to the Works or any of the rights, including any Intellectual Property Rights, in or to the Works; and
(e) the Supplier is and will be the sole owner of all of the physical materials which embody the Works.
5.2 The Supplier indemnifies and undertakes to keep the Company indemnified from and against any and all actions, claims, proceedings, judgments, demands, liabilities, losses, costs (including reasonable legal costs), expenses and damages which may be brought or awarded against the Company or suffered, incurred or paid by the Company or (howsoever arising) in respect of, arising out of or in connection with the provision of the services of the Supplier in accordance with this Agreement or a breach of the terms, conditions, covenants, warranties and representations (express or implied) contained in this Agreement on the part of the Supplier.
5.3 The indemnity in clause 5.2 above is a continuing obligation which is separate and independent from any other obligations of the parties under this Agreement and it survives termination, completion or expiration of this Agreement.
5.4 The Supplier acknowledges and agrees that it is not necessary for the Company to incur any expense or cost or make any payment before enforcing the indemnity in clause 5.2 above and the Supplier will pay any money due to the Company under that indemnity on demand by the Company.
The Supplier will at all times during and for so long as is legally permissible after the term of this Agreement to keep confidential the Confidential Information and will not disclose or discuss the same without the prior written approval of the Company, except:
(a) as specifically provided by this Agreement;
(b) to the extent permitted or required by law;
(c) to the extent required to perform any of their obligations under this Agreement;
(d) to the extent required to instruct their professional advisers in relation to the preparation and completion of this Agreement;
(e) where the information is or becomes public knowledge but not if it is because the Supplier has contravened a confidentiality obligation under this clause 6; or
(f) where the information was known to the Supplier before the date of this Agreement and such prior knowledge is notified and agreed in writing between the parties.
7. INTELLECTUAL PROPERTY
7.1 The Supplier hereby assigns to the Company absolutely and unconditionally as a present assignment (and where necessary as a present assignment of future rights) all of the Supplier’s legal and beneficial rights, title and interest (including all Intellectual Property Rights and other intangible rights) in and to all Works and any other products of the Services pursuant to this Agreement throughout the universe in any and all media (whether now known or in the future created) for the full term of those rights (including any and all revisions, revivals, renewals and extensions thereof) and thereafter (as far as possible) in perpetuity.
7.2 Without limiting the assignment of rights set out in clause 7.1 above, the Company and its successors will be entitled to make full and unfettered use of the Works in such a manner as they think fit in their absolute discretion throughout the universe in any and all media (whether now known or in the future created) including, without limitation, by exercising the right to make change, alterations, substitutions, additions and deletions to the Works and any adaptations of the Works.
7.3 The Supplier hereby assigns to the Company absolutely and unconditionally as a present assignment (and where necessary as a present assignment of future rights) all legal and beneficial right, title and interest in and to the physical materials and electronic files and data embodying the Works, whether such materials and files and data are now existing or are created after the date of this Agreement. At any time upon the request of the Company, the Supplier must promptly deliver to the Company all physical materials and electronic files and data embodying the Works that are in the possession or control of the Supplier at the date of the Company’s request.
7.4 The Supplier agrees that if there are vested in the Supplier or any other contributor any Moral Rights in the Works, the Supplier and other contributor(s) irrevocably and unconditionally throughout the universe:
(a) waives the Moral Rights; and
(b) to the extent that Moral Rights cannot be waived by law, consents to the use, treatment, alteration, removal, destruction or attribution of or dealing with the Works or the doing of any act comprised in the copyright in respect of the Works which would otherwise be an infringement of Moral Rights as deemed appropriate by the Company and its successors and any persons who are authorised by the Company or its successors to do acts comprised in the copyright, and undertakes and agrees that the Supplier will not make any claim in respect of any infringement or contravention of the Moral Rights (whether it be an act or omission) arising from, or in connection with, the use, treatment, alteration, removal, destruction or attribution of or dealing with the Works or the doing of any act comprised in the copyright in respect of the Works by the Company and any persons who are authorised by the Company or their successors to do acts comprised in the copyright.
For the avoidance of doubt, this clause 7.4 requires the Supplier to ensure that any contributories provide the appropriate waiver or consents described in this clause.
7.5 The parties agree that each of the waivers or consents given in clause 7.4 above are reasonably necessary for the protection of the Company’s business and accept that they are fair and reasonable in all circumstances known to or in the confirmation of the parties as at the date of this Agreement.
8.1 The Supplier must not, during the Term or for a period of 12 (twelve) months thereafter, seek to provide its services directly to any third party to whom the Company provided services during the Term or to whom the Company has a reasonable prospect of providing services during the Term.
8.2 The Supplier must not, during the Term:
(a) facilitate or assist any third party that is in competition with the Company to offer to employ or engage in any capacity or otherwise endeavour to entice away from the Company any person who is an existing employee of, or independent contractor to, the Company,
or otherwise a provider of services to the Company; or
(b) induce or encourage any person who is an existing employee of, or independent contractor to, the Company, or otherwise a provider
of services to the Company, to cease their relationship with the Company.
8.3 The Employee acknowledges and accepts that in relation to the provisions in clauses 8.1 and 8.2 above:
(a) damages are not an adequate remedy to the Company in respect of a breach of any of the provisions in those clauses;
(b) the Company will be entitled to injunctive relief in respect of a breach of any of the provisions in those clauses;
(c) a breach will damage the Company’s goodwill; and
(d ) the restraints in those clauses are necessary, reasonable and proportionate to protect the Company’s goodwill and business and that they are fair and reasonable in all circumstances known to or in the confirmation of the parties as at the date of this Agreement.
9. RELATIONSHIP OF PARTIES
The Supplier’s relationship with the Company will be that of an independent contractor. Nothing stated in this Agreement or in the nature of the Supplier’s engagement will be construed as creating or giving rise to any relationship in the nature of a partnership or quasi-partnership, employer and employee, master and servant or principal and agent between the Supplier on the one hand and the Company or any person, company or corporation associated with the Company on the other hand.
The Supplier agrees that, for the duration of the Term (and for a period of not less than three years thereafter in respect of any claims arising in relation to matters relating to the provision of the Services), it:
(a) must effect and maintain public liability insurance with an adequate indemnity limit which shall be no less than AUD$20,000,000
(twenty million Australian dollars) in respect of any one claim or incident;
(b must effect and maintain statutory workers’ compensation insurance with minimum limits of not less than the applicable statutory requirements; and
(c) must provide to the Company (at Company’s request) copies of certification of such insurance arrangements).
All notices and consents required or permitted to be given under this Agreement must be in writing and given by personal service, mail (postage prepaid) or electronic mail (for which proof of sending is retained) to the parties at their address as set out in the Principal Terms and Conditions or to such other address as either party may designate to the other by written notice.
12.1 No waiver by a party of any breach of any of the provisions of this Agreement will be construed as a waiver of any preceding or succeeding breach of any provision of this Agreement.
12.2 This Agreement is the entire agreement between the parties and supersedes any prior or contemporaneous agreement, oral or in writing. There are no promises, terms, conditions or obligations, oral or written, expressed or implied other than those contained in this Agreement.
12.3 This Agreement may only be amended in writing signed by the parties.
12.4 A party may give its approval or consent conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise.
12.5 If any provision of this Agreement is 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 this Agreement will continue in full force and effect.
12.6 This Agreement will be binding upon and will continue for the benefit of the parties, and their respective successors (including but without limitation, in the case of natural persons, their legal personal representatives) and permitted assigns.
12.7 The Supplier shall not be entitled to assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without prior written consent of the Company. the Company shall be entitled to freely assign or transfer this Agreement or all or any part or parts of its rights or obligations to any third party, and in the event of such assignment or transfer, the Supplier undertakes to fulfil all of the Supplier’s obligations under this Agreement to such assignee or transferee.
12.8 This Agreement may be executed in any number of counterparts.
12.9 Nothing in this Agreement will be construed as constituting a partnership, joint venture, employment or agency relationship between the parties.
12.10 Neither party shall have (and shall not represent that it has) any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name.
12.11 Each indemnity in this Agreement is a continuing obligation, separate from the other obligations of a party, and survives termination of this Agreement.
12.12 All representations and warranties in this Agreement will survive the execution and delivery of this Agreement and the completion of the transactions contemplated by it.
12.13 The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement and will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any such transaction.
12.14 This Agreement is 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.