Contract Terms
THE LAST ADJUSTMENT MADE TO THIS DOCUMENT IS RECORDED AS: April 12th 2024.
Contents
AGREEMENT FOR THE PROVISION OF SERVICES
PARTIES:
Hamilton, Spencer, & Co., ABN 37 100 790 726, of registered address
223 Raglan St South, Ballarat Central VIC 3350 (“ HSC ”)
AND
THE PERSON(S) NAMED AND DESCRIBED AS THE CLIENT IN ITEM 1, THE SCOPE OF WORK or PROPOSAL
(“The Client”)
BACKGROUND
- The Client wishes to receive the Services defined as such in this Agreement.
B. HSC has agreed to provide the Services to The Client, and The Client has agreed to receive the Services from HSC, in accordance with the terms of this Agreement.
AGREED TERMS:
1. DEFINITIONS
In this Agreement unless provided otherwise:
1.1. “Agreement” means this agreement and its schedule(s) and annexure(s);
1.2. “Business Day” means any day that is not a Saturday or Sunday or a public holiday in Melbourne, Victoria;
1.3. “Commencement Date” means the date upon which both parties have signed this Agreement, unless an alternate date is specified in the Scope of Work, in which case, that date;
1.4. “Completion Date” means the date specified in the Scope of Work as the date upon which this Agreement will end or the Services will cease;
1.5. “Confidential Information” means information, irrespective of its form, disclosed or made available by or on behalf of a Party (“the Disclosing Party”) (or the Disclosing Party’s employees, agents, officers or advisors) to another Party (“the Receiving Party”), or which has been derived in whole or in part from information so disclosed, which:
1.5.1. is confidential by its nature or by the nature in which it is disclosed;
1.5.2. is designated or marked by the Disclosing Party as confidential or identified in terms indicating its confidentiality;
1.5.3. the Receiving Party knows or ought to know is confidential, but does not include information available to the public (otherwise than by breach of this Agreement).
1.6. “Deliverables” means all deliverables that are provided, or required to be provided, by HSC to the Client as part of the performance of the Services under this Agreement including, but not limited to, work, documents, materials, products or websites, but excluding any unique processes, methodologies, or combinations thereof utilised by HSC to develop such deliverables;
1.7. “Facilities” means working space, computer equipment, access to the internet and The Client’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by HSC in order to perform the Services;
1.8. “Fee” means the fees specified in the Scope of Work;
1.9. “Force Majeure Event” means any event or circumstance beyond the reasonable control of The Client or HSC or both, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
1.10. “HSC’s Representative” means the person(s) named as such in Item 2 of the Schedule;
1.11. “HSC’s Staff” includes any employees, agents and any other person employed or engaged by HSC for the purposes of this Agreement and this definition means any one of them;
1.12. “Intellectual Property” means any patent, copyright, trademark, trade name, design, semi-conductor or circuit layout rights, trade secret, know how or other form of intellectual property right and the right to registration of these rights;
1.13. “Party” means a party to this Agreement and includes that Party’s successors and permitted assigns;
1.14. “Representative” means The Client’s Representative or HSC’s Representative or both (as the case may be);
1.15. “Schedule” means the Schedule to this Agreement;
1.16. “Services” means those services HSC must perform as specified in the Scope of Work;
1.17. “Scope of Work” means the document(s) forming Annexure A and, if the Scope of Work includes more than one document, the later in time prevails over a document of earlier date to the extent of any inconsistency;
1.31. “Term” means the term set out in clause 4.1; and
1.32. “The Client’s Representative” means the person(s) named as such in Item 2 of the Schedule.2. INTERPRETATION
2.1. In this Agreement unless a contrary intention is evident:
2.1.1. the clause headings are for convenient reference only and they do not form part of this Agreement;2.1.2. a reference to a clause number is a reference to all its subclauses;
2.1.3. a reference to a clause, subclause or schedule is a reference to a clause, subclause or schedule of this Agreement;
2.1.4. a word in the singular includes the plural and a word in the plural includes the singular;
2.1.5. a word importing a gender includes any other gender;
2.1.6. a reference to a person includes a partnership, body corporate and any government or semi-government related body;
2.1.7. a reference to legislation includes any modification, consolidation, amendment, replacement or codification of that legislation;
2.1.8. a reference to dollars or $ is a reference to Australian dollars;
2.1.9. where a word or phrase is given a particular meaning other parts of speech or grammatical forms of that word or phrase have corresponding meanings;
2.1.10. any heading or table of contents is for convenience only and does not affect the interpretation of this Agreement; and
2.1.11. a clause of this Agreement shall not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the clause in this Agreement.
2.2. If The Client consists of two or more persons, The Client’s rights and obligations under this Agreement bind them jointly and severally.
2.3. Inconsistencies in this Agreement shall be resolved by adopting the interpretation or meaning given in a part of this Agreement listed below in the order or priority in which each part is listed below:
2.3.1. this Agreement (excluding the Schedule and the Annexures);
2.3.2. the Schedule; and
2.3.3. Annexure A.3. CONTRACT ADMINISTRATION
3.1. The Parties appoint the persons named in the Schedule as their respective Representatives.
3.2. A notice served on a Representative is taken to be notice to that Representative’s Party.4. TERM
4.1. The term of this Agreement commences on the Commencement Date and expires on the Completion Date.
5. HSC’S OBLIGATIONS
5.1. HSC must perform the Services during the Term in accordance with this Agreement in consideration for The Client paying the Fee to HSC.
5.2. The Services will be performed by the employees or agents that HSC may choose as most appropriate to carry out the Services.
5.3. HSC will use reasonable endeavours to complete the Services within any timeframes specified in the Scope of Work.6. THE CLIENT’S OBLIGATIONS
6.1. During performance of the Services The Client will:
6.1.1. co-operate with HSC as HSC reasonably requires;
6.1.2. provide the information and documentation that HSC reasonably requires;
6.1.3. make available to HSC such Facilities as HSC reasonably requires; and
6.1.4. ensure that The Client’s staff and agents cooperate with and assist HSC.
6.2. The Client will not charge for HSC’s use of the Facilities made available by The Client.
6.3. If The Client does not provide the assistance and/or Facilities that HSC reasonably requires (and within the time period) to perform the Services, then:
6.3.1. The Client acknowledges that the provision of the Services may be delayed, and agrees that HSC will not be responsible for any loss caused to The Client in relation to that delay;
and
6.3.2. any additional costs and expenses which are reasonably incurred by HSC will be paid by The Client.
6.4. If The Client intends to engage a third party during the Term who will or may have any involvement with the Services, and HSC has, before entering into this Agreement, queried whether The Client has such an intention, The Client warrants that it has advised HSC of this intention before entering into this Agreement.
6.5. If The Client provides to HSC any material ( “Client Material” ), The Client warrants that HSC’s use of The Client Material for the purpose of providing the Services will not infringe any person’s Intellectual Property rights. If any person makes any claim alleging that The Client Material or any use of it by HSC in connection with this Agreement infringes any Intellectual Property right or any other right of any person, The Client must indemnify and keep indemnified HSC from and against any such claim and from and against any loss (including reasonable legal fees) arising in connection with the claim.
6.6. The Client agrees to take on any licensing obligations for software or other tools of production that provide utility or design outcomes for any project at the conclusion of any work.7. SUBCONTRACTING
7.1. HSC is permitted to use specialist subcontractors to provide some or all of the Services.
7.2. HSC is responsible for the work of any of HSC’s subcontractors.
7.3. Any subcontracting of the Services by HSC will not relieve HSC from any of its obligations under this Agreement.
7.4. HSC will ensure that any and all subcontractors are qualified and competent to perform their responsibilities.8. PAYMENTS
8.1. In consideration of HSC providing the Services, The Client will pay HSC the Fee in the manner set out in the Scope of Work or, if not so specified, within 7 days of the receipt by The Client of a true and correct tax invoice issued by HSC in respect of the Services.
8.2. HSC is under no obligation to commence providing the Services until the Fee is paid in full or, if the Scope of Work requires the Fee to be paid in instalments, the first of such instalments is paid.
8.3. If The Client does not make payment as required under this Agreement, HSC is entitled to do any of the following:
8.3.1. charge interest on the outstanding amount at the rate of 5% per year above the cash rate most recently published by the Reserve Bank of Australia; and
8.3.2. not perform any further Services (or any part of the Services) until such payment is made.
8.4. If HSC ceases performing the Services pursuant to clause 8.3.2, it will endeavour to re-commence providing the Services as soon as possible after the outstanding payment is made by the Client. However, The Client acknowledges that HSC may be delayed from re-commencing the provision of Services, and that this delay may not be proportionate to The Client’s delay in making payment.
8.5. HSC is permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier services, postage etc.
8.6. The Parties acknowledge that the Fee excludes any ongoing costs or fees for subscriptions or other services after the termination or expiry of this Agreement.9. INTELLECTUAL PROPERTY RIGHTS
9.1. Nothing in this Agreement constitutes a transfer of Intellectual Property and any Intellectual Property in Deliverables produced by HSC during the Term remain the property of HSC until such time that The Client has paid the Fee insofar as it relates to a Deliverable, at which time the Intellectual Property in the Deliverable is immediately transferred to The Client.
9.2. HSC warrants and assures to The Client that the performance of the Services and The Client’s use of any Deliverables, does not infringe the Intellectual Property rights of any person.
9.3 HSC will make no claim as to any Intellectual Property that is supplied by, or is intellectually inside, or adjacent to, the domain of knowledge of The Client.10. INDEMNITY
10.1. The Client will at all times indemnify and keep indemnified HSC from and against any claim, action, prosecution, damage, cost, loss, expense or liability of any kind (including, without limitation, legal costs on a full indemnity basis), suffered, sustained or incurred by HSC as a result of, arising out of, in connection with or relating to:
10.1.1. any negligent act or omission by The Client or The Client’s staff or agents in connection with or incidental to this Agreement; or
10.1.2. any breach of this Agreement by The Client.11. LIMITATION OF LIABILITY
11.1. Except in the case of death or personal injury caused by HSC’s negligence, the liability of HSC under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise will not exceed the Fee paid by The Client to HSC under this Agreement.
11.2. Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
11.3. Either Party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other Party contributed to the damage arising from the claim.
11.4. To the full extent permitted by law, HSC excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in the Agreement.
11.5. HSC offers no assurances or guarantees as to the cybersecurity of any Deliverables and recommends that The Client undertake independent security testing of any Deliverable before such Deliverable is commercially functional.
11.6. HSC makes no assurances or guarantees that, after termination or expiry of this Agreement,
11.6.1. any third party involved in the provision of software related to the Services will remain commercially operable; or
11.6.2. any such software will remain functional.
11.7. The Client agrees to the inherent security risks in the provision of access to HSC of digital assets and platforms. This includes, but is not limited to, any functionality provided by third-party organisations that no longer provide the intended functionality(s) or service(s).
11.8. This clause 11 does not purport to limit liability or alter The Client’s rights as a consumer that cannot be excluded under applicable law, including the Australian Consumer Law. If such legislation applies, HSC limits, to the extent possible, its liability in respect of any claim to, at HSC’s option:
11.8.1. in the case of goods:
11.8.1.1. the replacement of the goods or the supply of equivalent goods;
11.8.1.2. the repair of the goods;
11.8.1.3. the payment of the cost of replacing the goods or of acquiring equivalentgoods; or
11.8.1.4. the payment of the cost of having the goods repaired; and
11.8.2. in the case of services:
11.8.2.1. the supply of the services again; or
11.8.2.2. the payment of the cost of having the services supplied again.12. CONFIDENTIAL INFORMATION
12.1. Neither Party may disclose or use any Confidential Information belonging to the other Party except as permitted by this Agreement.
12.2. A Party may disclose Confidential Information belonging to the other Party:
12.2.1. to an employee, agent, contractor or adviser of that Party, on a “need to know” and confidential basis, provided such employee, agent or adviser is made aware of the confidentiality of the Confidential Information and agrees to use the Confidential Information only for the proper performance of this Agreement;
12.2.2. to its legal, financial or other professional advisers for the purpose of those advisers providing advice;
12.2.3. as required by law or a court order; or
12.2.4. for the purposes of prosecuting or defending proceedings.
12.3. The Parties may mutually agree to disclose Confidential Information.
12.4. A Party may use the Confidential Information belonging to the other Party solely for the purposes of complying with its obligations and exercising its rights under this Agreement.13. FORCE MAJEURE
13.1. Neither Party will be liable for any act, omission or failure to fulfil its obligations under this Agreement, to the extent that such act omission or failure arises as a result of a Force Majeure Event.
13.2. A Party seeking relief under this clause 13 must:
13.2.1. as soon as practically possible after becoming aware of the Force Majeure Event, notify the other Party of the Force Majeure Event and provide to the other Party all relevant information relating to the Force Majeure Event; and
13.2.2. use its best endeavours to overcome or remedy the effect of the Force Majeure Event as soon as possible.
13.3. If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds sixty (60) days, either Party may immediately terminate this Agreement on providing notice in writing to the other Party.
13.4. If this Agreement is terminated pursuant to clause 13.3, HSC will refund moneys previously paid by The Client pursuant to this Agreement for Services not provided by HSC to The Client.
13.5. Subject to clause 13.1, termination pursuant to this clause 13 will not affect any other rights, remedies or claims a Party may have against the other where such rights or claims have arisen prior to the termination.14. TERMINATION
14.1. Either Party may terminate this agreement by notice in writing to the other if the Party notified:
14.1.1. fails to observe any term of this agreement; and
14.1.2. fails to rectify this breach, to the reasonable satisfaction of the notifying Party, following the expiration of 21 days’ notice of the breach being given in writing by the notifying Party to the other Party.
14.2. Either Party may terminate this Agreement:
14.2.1. in a manner specified in the Scope of Work; or
14.2.2. by written notice to the other Party if an insolvency event (other than an internal reconstruction) occurs in respect of that other Party.
14.3. HSC may terminate this Agreement immediately by written notice to The Client if the Client fails to comply with clause 6.4.
14.4. The rights of the Parties under this clause 14 are in addition to any other rights, remedies or claims the Parties may have.
14.5. Termination of this Agreement by either Party pursuant to the terms of this Agreement will be without prejudice to any accrued claim, right or remedy which either Party may have against the other.
14.6. Upon termination of this Agreement any Fee, expense or reimbursement payable by The Client
to HSC in respect of any period prior to the date this Agreement is terminated must be paid by The Client within 7 days of the date of termination.15. DISPUTE RESOLUTION
15.1. Neither Party may commence legal proceedings in respect of any dispute in relation to this Agreement without first attempting resolution in accordance with this clause.
15.2. If a dispute arises between the Parties under or in connection with this Agreement, the Services or otherwise, the Representatives of each Party will meet and use their best endeavours to resolve that dispute by negotiation or otherwise.
15.3. The Parties will be deemed to have used their best endeavours to resolve a dispute if the parties, through their Representatives, have met to discuss the dispute and have failed to resolve it within ten (10) Business Days of that meeting.
15.4. Nothing in this clause 15 will preclude either Party from seeking an urgent interim or interlocutory injunction in cases of genuine urgency.16. GOODS AND SERVICES TAX
16.1. HSC represents that it is registered for GST.
16.2. If HSC is liable to pay GST in respect of a supply made under or in connection with this Agreement, The Client must pay to HSC an amount equal to such GST.
16.3. HSC and The Client agree that the Fee is deemed (unless stated otherwise in this Agreement) to be exclusive of the amount, if any, payable by The Client pursuant to clause 16.2.
16.4. Terms used in this clause 16 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them in that Act.17. GENERAL
17.1. No Assignment
17.1.1. Neither Party may assign or encumber any of its rights and obligations under this Agreement except with the prior written consent of the other Party (which must not be unreasonably withheld).
17.2. Relationship between the Parties
17.2.1. Nothing in this Agreement constitutes any fiduciary relationship between the Parties or any relationship of employer and employee, principal and agent, partnership, trust or joint venture between the Parties.
17.2.2. No Party may act as agent of the other Party or in any way bind the other Party in any manner whatsoever unless prior express written authority is given.
17.3. Survival
The provisions of the clauses of this Agreement in relation to the intellectual property rights, indemnities, the payment of Fees or other amounts by The Client to HSC, confidentiality and limits to liability survive the expiry or termination of this Agreement.
17.4. Entire Agreement 17.4.1. This Agreement contains the entire agreement between the Parties with respect to its subject matter.
17.4.2. This Agreement supersedes all prior oral and/or written agreements, understandings, arrangements and undertakings between the Parties on the subject matter.
17.4.3. The parties confirm that they have not entered into this Agreement on the basis of, or reliance on, any representation not expressly incorporated into this Agreement.
17.5. Indemnities
Unless expressly provided otherwise:
17.5.1. each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties, and survives termination, completion or expiration of this Agreement;
17.5.2. it is not necessary for a Party to incur expense or make any payment before enforcing a right of indemnity conferred by this Agreement; and
17.5.3. the making of a claim by a Party under an indemnity contained in this Agreement in respect of a particular event does not preclude that Party from subsequently making further claims under that indemnity in respect of any further loss arising out of the same event for which it has not previously been indemnified.
17.6. Proper Law
The laws in force in Victoria, Australia, including, without limitation, the law with respect to capacity to contract and manner of performance, govern this Agreement. 17.7. Jurisdiction of Courts
17.7.1. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
17.7.2. Any proceeding brought in a Federal Court must be instituted in the Victoria District Registry of that Federal Court.
17.7.3. The Parties undertake not to apply to transfer any proceedings to another registry of the Federal Court.
17.8. Notices
17.8.1. A “notice” includes a consent, approval or other communication required to be in writing under this Agreement.
17.8.2. All notices are required to be in writing, signed by or on behalf of the sender, addressed to the recipient and:
17.8.2.1. delivered;
17.8.2.2. sent by pre-paid mail;
17.8.2.3. transmitted by email,
to a Party’s Representative at one or more of the addresses specified in Item 2 of the Schedule or to any other such address notified in writing by the Party from time to time.
17.8.3. A notice given to a person in accordance with this clause is treated as having been given
and received:
17.8.3.1. If delivered, on the day of delivery if delivered before 5.00pm on a Business Day, otherwise on the next Business Day;
17.8.3.2. if sent by pre-paid mail, on the third Business Day after posting;
17.8.3.3. if transmitted by email, when the email enters the recipient’s mail server.
17.9. Waiver
17.9.1. Any waiver of any clause of or right pursuant to this Agreement is ineffective unless it is in writing and signed by the Party waiving its rights.
17.9.2. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
17.9.3. The failure of either Party to enforce at any time any of the clauses of this Agreement must not be interpreted as a waiver of any right to enforce such a clause.
17.10. Modification
Any amendment, variation or other modification of this Agreement will be ineffective unless it is in writing and agreed upon by both Parties.
17.11. Severance
If any clause of this Agreement would, but for this clause, be unenforceable:
17.11.1. the clause will be read down to the extent necessary to avoid that result; and
17.11.2. if the clause cannot be read down to that extent, it will be severed without affecting the validity or enforceability of the remainder of this Agreement.
17.12. No Merger
The rights and obligations of the parties will not merge on completion of any transaction under this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
17.13. Counterparts
This Agreement may be executed in any number of counterparts, each of which when executed and
delivered will constitute an original of this Agreement, but all counterparts shall together
constitute the same agreement. No counterpart is effective unless and until each party has
executed at least one counterpart.
17.14 Adjustments to This Agreement
17.14.1 Should their be specifications or clauses declared in this Agreement that are deemed to be outside the required stipulations of The Client, any formal or informal written communication specifying the adjustment or ammendment shall be considered effective to the Original Agreement and any Counterpart(s) thereafter.