STANDARD TERMS AND CONDITIONS
THIS AGREEMENT is made on the DATE of the attached Invoice (“Effective Date”)
BETWEEN The Consultant Climb Performance (ABN 76 126 150 894) of Churchlands WA 6018 and
the Client, as described on the attached Invoice.
WHEREAS:
A. the Consultant is engaged in the business of providing specialist expertise and services in the business advisory, consulting and project management fields throughout.
B. the Client is engaged in the business of providing services and expertise in software products and services through artificial intelligence technology.
C. the Consultant is able to provide specialist skills and experience that the Client wishes to engage from time to time, for a project of limited duration and/or utilising skills which the Client does not have in-house.
IT IS HEREBY AGREED AS FOLLOWS:
- DEFINITIONS
In this Agreement, unless the context requires otherwise or the contrary intention appears:
“Business Day” means a day on which banks are open for business in Melbourne, excluding Saturdays, Sundays and public holidays.
“Intellectual Property Rights” includes all worldwide registered and unregistered copyrights, trade marks, designs, patents, inventions, brands, logos, circuit layout rights, concepts, catch phrases and other similar industrial property rights and rights to registration of such rights whether created before or after the date of this Agreement or as developed in accordance with this Agreement. - Performance and payment of services
(a) The Consultant hereby agrees to undertake supply of the following services as specified in the attached Invoice (“Services”) and undertakes to comply with any reasonable requirements relating to the performance of these Services which shall be communicated in writing to the Consultant by the Client. Additional Proposal for Services may be entered into in writing and signed by both parties, during the term of this Agreement. Such additional Proposal for Services shall be incorporated by reference to this Agreement.
(b) The price for the Services be will as described in the Invoice (plus GST) and is to be paid as a fixed sum. The price charged by the Consultant is specific to this Agreement only.
(c) Payment for the services must be made within ten (10) business days.
(d) The Consultant will be reimbursed from time to time for reasonable and necessary expenses incurred by the Consultant in connection with providing the Services.
(e) All expenses must be pre-approved by the Client.
(f) The Consultant will supply all equipment, software and other expertise necessary for the provision of the Services. The Client will provide access to Client staff and documents as reasonably required to perform the Services.
(g) The Consultant will indemnify the Client for claims or loss arising from a breach of professional duty in the provision of professional services. The liability of the Consultant is reduced to the extent that the Client or other person(s) caused or contributed to the loss or occurrence which gave rise to the claim. - Relationship between the parties
(a) This Agreement does not constitute any company, partnership or joint venture between the parties for any purpose. Neither party to this Agreement shall have any right to incur any liabilities or obligations on behalf of or binding upon the other party except as provided for in that Agreement.
(b) Nothing in this Agreement constitutes a relationship of employer and employee. The Consultant must not act in any way other than as an independent Consultant of the Client.
(c) The Client will not be responsible for any payments in respect of:
(i) the remuneration of the Consultant’s personnel including salary and wages, annual leave, sick leave, long service leave or superannuation;
(ii) workers’ compensation, accident, sickness and life insurance for the Consultant’s personnel; and
(iii) all taxes including but not limited to corporate tax, payroll tax, PAYG tax, training guarantee levy, FBT, excise duty, GST, personal income taxes, company income taxes, Consultant’s payroll taxes, superannuation guarantee levy, health insurance levy and any other additional taxes or levies imposed by government.
(d) The Consultant will not be subject to the supervision, direction or control on the manner in which he or she renders the agreed Services, and will maintain a high level of discretion, flexibility and professional judgment as to how the work is performed and results achieved. Checking of the Consultant’s work by the Client or co-ordination with other onsite project activities will not constitute control over the Consultant.
(e) The Consultant acknowledges and hereby agrees that in relation to the supply of the Services under this Agreement it is responsible for compliance with all statutory requirements in relation to trading, including but not limited to the payment of all or any taxes, superannuation, workers’ compensation or other charge, levy or obligation imposed by law as a result of this Agreement.
(f) These terms (3(a), (b), (c), (d), and (e)), shall have effect from the date of execution and shall survive the Agreement. - Confidentiality
(a) The parties agree that confidential information disclosed to the other party remains at all times confidential and each party indemnifies the other in respect to all loss, damage, claim, liability, cost or expense suffered by the discloser arising from any breach of this Agreement.
(b) The Consultant shall not disclose and shall use its best endeavours to prohibit and prevent the unintentional disclosure of any confidential information concerning the business, strategic plan, methodologies or any other interests of the Client which may come to its knowledge.
(c) The Client acknowledge that the methodology and materials of the Consultant, unless in the public domain, are to remain confidential to the Consultant unless otherwise specifically agree in writing. - Proprietary information and patents
(a) Unless agreed otherwise in writing by the parties, nothing in this Agreement affects ownership of any Intellectual Property Rights which came into existence before the Effective Date.
(b) The Consultant acknowledges and agrees that all Intellectual Property Rights created under this Agreement are the exclusive property of the Client.
(c) The Consultant grants the Client a royalty free, non-exclusive licence of the Consultant’s Intellectual Property Rights supplied to the Client under this Agreement to the extent required for the Client to use for the purposes of this Agreement.
(d) The Consultant warrants that it is lawfully entitled and has full authority to grant the licences of Intellectual Property Rights set out thereof under this Agreement and that the Client ‘s use under this Agreement will not infringe the rights (including, without limitation, the Intellectual Property Rights) of any third person.
(e) The Client indemnifies the Consultant for any direct or indirect loss suffered by the Consultant by reason of use of the Consultant’s Intellectual Property Rights in any manner other than as expressly allowed by this Agreement. - Indemnification
Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement. - Termination
Either party may terminate this Agreement at any time by ten (10) Business Days written notice to the other party. The client agrees to give the Consultant ten (10) Business Days written notice if the Agreement is not to be renegotiated at expiry. Upon termination, all outstanding retainer fees are to be paid up to and including for the full term on the agreement. - Waiver
If either party shall waive any breach of this Agreement or forbear to enforce any part of it on any one or more occasion, such waiver or forbearance shall not be taken as evidence against that party and shall not preclude that party from subsequently enforcing any part of this Agreement. - Disputes
If any dispute arises involving the performance of this contract or the interpretation of its terms, before resort to legal action is had by either party, it is agreed that if negotiations fail, the parties shall utilise mediation, each party bearing their own costs. - Severability
In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement. - Assignment
Neither party may assign any of its obligations under this Agreement without obtaining the prior written consent of the other party. - Governing law
This Agreement shall be governed by and construed in accordance with the State of Western Australia law and the parties to this Agreement agree to submit, subject to clause (6), to the jurisdiction of its Courts. - Notices
Unless otherwise specified in the Agreement or documents collateral to this Agreement, all notices or communications of a contractual nature given in relation to this Agreement by either party to the other party shall be in writing and delivered, emailed or mailed by registered mail as follows:
(a) The Consultant to: 3 Hollypea Close Churchlands WA 6018. Email: jason.waller@climbperformance.com
(b) The Client to: address on the Invoice.