IT IS HEREBY AGREED AS FOLLOWS:

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1. Performance of Services

1.1 The Contractor hereby agrees to undertake supply of Services to the Customer outlined accordance with the agreed Work Order and any Scope of Works, and the Contractor undertakes to comply with any reasonable requirements relating to the performance of these Services which shall be communicated in writing to the Contractor by the Customer.

1.2 The prices for the Services shall be as specified in the written Work Order agreed by the parties. The prices charged by the Contractor are specific to the Customer and the agreed Work Order Scope of Works only.

1.3 The Contractor will supply all expertise necessary for the provision of the Contractor’s Services.

1.4 The Customer will provide access to any sites, or proprietary information, as reasonably required by the Contractor for to performance of the Services.

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2. Invoicing and Payment for Services

2.1 The Contractor will provide the Customer with an invoice at the end of each month and/or at the completion of the Services. The invoice shall include the date of each day allocated to the provision of the Services and the time spent in performing the Services.

2.2 Subject to clause 2.6, the Customer will pay the Contractor the amount stated on each invoice within 30 days of receipt of each invoice.

2.3 The Customer must pay all amounts owing by the Customer under the Agreement by electronic funds transfer (EFT) and without set-off, counterclaim or deduction to the Contractor.  The Contractor is permitted to charge Interest on overdue amounts that are not the subject of a dispute in line with clause 2.6.

2.4 All amounts to be paid under the Agreement are to be in Australian dollars and exclude GST.

2.5 Notwithstanding any clauses that parties intend to remain effective beyond any termination or expiry of the Agreement, including those stated at clause 10.3, these T&Cs remain in effect from the date of receipt of the approved Work Order until Contract End Date or payment of all outstanding invoices has been received by the Contractor, whichever is later.

2.6 In the event of a genuine billing dispute (“Billing Dispute”), the Customer must notify the Contractor of any such dispute within twenty-one (21) days of receipt of the disputed invoice.

2.7 Where a Billing Dispute has been raised by the Customer is accordance with clause 2.5, the Customer must pay all non-disputed amounts in accordance with clause 2.2, and parties agree to meet at their earliest convenience to discuss the Billing Dispute in good faith.

2.8 If parties cannot resolve the Billing Dispute within ten (10) Business Days, the disputed amount shall be dealt with in accordance with clause 11.

 

3. Liability

3.1 The Contractor will indemnify the Customer for claims or loss arising as a direct result of a breach of the Contractor’s professional duty in the provision of Services.

3.2 Unless unable to be limited by Law, the liability of the Contractor under the Work Order is limited to the value paid by the Customer for the Services in the previous twelve (12) months under any agreement in which the liability arises, and is proportionately reduced to the extent that the Customer (or other person(s) under the direction or control of the Customer) caused or contributed to the loss or occurrence which gave rise to the claim.

3.3 Subject to clause 3.4, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

3.4 To the full extent permissible by Law, and subject to clauses 3.2 and 3.3, the liability of the Contractor for any breach of warranty or condition shall be limited, at the sole discretion of the Contractor to either:

i. the supplying of Services again; or

ii. the supply of labour to rectify any defect in relation to the Services.

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4. Exclusions to Liability

4.1 To the fully extent permitted under the Law, and not withstanding any other provision in the Agreement, neither party will be liable to the other party for any Consequential Loss.

4.2 The Contractor does not warrant that the Services will be free of interruptions, delays, faults or errors and the Contractor will not be responsible for any loss and/or damage to the Customer's business and/or the Customer's end user’s that may result from any interruptions, delays, faults or errors in the supply of the Services.

4.3 Other than as specifically agreed in clause 3, the Contractor has no liability to the Customer, any of the Customer's end users or to any other person, for:

i. faults or defects in Services which are caused by the Customer's own conduct or misuse or the conduct or misuse of the Customer's end users or due to equipment or cabling (or other infrastructure) owned or leased by the Customer; or

ii. faults or defects, errors or malfunctions in any item outside of the Contractors responsibility under the Agreement, or retirement of software versions or support by a third party vendor or manufacturer; or

iii. a Force Majeure event; or

iv. any liability specifically arising where:

A. the Customer requires an urgent technical change to the Services; and

B. the Contractor has notified the Customer that it is not practicable for the Contractor to properly test the change within the required deployment timeframe; and

C. the Customer notifies the Contractor in writing that the change should nevertheless be deployed.

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5. Relationship between the parties

5.1 The Agreement does not constitute any company, partnership or joint venture between the parties for any purpose. Neither party to the 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 the Agreement.

5.2 Nothing in the Agreement constitutes a relationship of employer and employee in any way. The Contractor must not act in any way other than as an independent contractor of the Customer.

5.3 The Customer will not be responsible for any payments in respect of:

i. the remuneration of the Contractor’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 Contractor’s personnel; or

iii. taxes applicable to the Contractor, including but not limited to corporate or company income tax, payroll tax, PAYG tax, training guarantee levy, fringe benefits tax, Contractor’s payroll taxes, superannuation guarantee levy, or any other additional taxes or levies imposed by government.

5.4 Where agreed, the work carried out to achieve the results set out in the Agreement can be undertaken by another person working on behalf of the Contractor. This arrangement will be subject to the substitute supplier having the appropriate qualifications and relevant experience, and to the Customer’s approval, which will not be unreasonably withheld. The Customer maintains the right to veto the choice of substitute on reasonable grounds.

5.5 The Contractor will not be subject to the supervision, direction or control on the manner in which the Contractor 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 Contractor’s work by the Customer or co-ordination with other onsite project activities will not constitute control over the Contractor.

5.6 The Contractor acknowledges and hereby agrees that in relation to the supply of the Services under the 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 the Agreement.

5.7 The ownership of any Intellectual Property (and associated Intellectual Property Rights), unless in the public domain other than as a result of a breach of the Agreement, generated by or introduced into the Services by the Contractor remains at all times with the Contractor unless otherwise specifically agreed in writing.

5.8 All written data to be exchanged by the parties to the Agreement shall be regarded as confidential and shall remain the property of the discloser. All such written data shall be immediately returned to the discloser upon written request or at the expiry of the Agreement.

 

6. Confidentiality

6.1 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 direct loss, damage, claim, liability, cost or expense suffered by the discloser arising from any breach of the Agreement by the other party.

6.2 The Contractor 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 Customer which may come to its knowledge.

6.3 The Customer acknowledges that the methodology and materials of the Contractor, as well as commercial rates and other information that the Customer should reasonably know to be confidential to the Contractor, unless already in the public domain other than by a breach of the Agreement, are to remain confidential at all times unless the Contractor specifically agrees otherwise in writing.

 

7. Force Majeure

7.1 Delay in delivery or non-delivery in whole or in part by the Contractor shall not be a breach of this agreement if performance is made impracticable by the occurrence of any one or more of by reason of fire, earthquake, flood, explosion, strike, lock-out, riot, civil disturbance, act of public enemy, natural catastrophe, embargo, war or act of God, or any ordinance or Law (“Force Majeure”).

7.2 A party is not entitled to rely on the Force Majeure exclusions in clause 7.1 where the affected party could have prevented the Force Majeure event if it had acted reasonably in its usual obligations to prevent such Force Majeure even occurring.

7.3 A party cannot claim Force Majeure where such event results in payment (or non-payment) of monies and invoices when due.

7.4 Where a Force Majeure event exists for a period of greater than twenty (20) Business Days without resolution, then either party may terminate the portion of this Agreement affected by the Force Majeure event by giving the other party no less that ten (10) Business Days written notice.  All other parts of the Agreement will remain in force, and each party’s obligations to the other will still exist, unless parties agree otherwise.

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8. Ownership and Intellectual Property

8.1 Unless otherwise agreed by the parties, and subject to clause 8.2, ownership of all Intellectual Property and other proprietary rights in all Deliverables to be provided by the Contractor specifically to the Customer as part of the engagement and in any products, processes and things produced or developed by the Contractor in the course of, or in consequence of, the performance of the Services vests in the Contractor from the moment that such Intellectual Property is created (“Contractor Owned IP”).

8.2 Clause 8.1 does not apply to Intellectual Property previously belonging to the Customer (“Customer Owned IP”), which will always remain the property of the Customer. 

8.3 The Contractor hereby grants a perpetual, assignable, non-exclusive, royalty free licence permitting the Customer to use and reproduce the Contractor Owned IP for the enjoyment of the Services, however no license is created for the Customer to modify, on-sell, sub-license or otherwise commercialise any Contractor Owned IP, unless expressly agreed by the Contractor in writing.

8.4 The Customer hereby grants a non-exclusive, royalty free licence to the Contractor permitting the Contractor to use and reproduce the Customer Owned IP in the delivery of any Services.

8.5 Each party must immediately do all things and execute all documents reasonably necessary and required by the other party, at the requesting party’s expense, to record, prove or enforce such ownership and proprietary rights noted in this clause 8 against all persons including the other party.

 

9. Delay

9.1 The Contractor shall not be liable for any delay in delivery of the Services outside of the Contractor’s reasonable control.

9.2 Where the Contractor has advised the Customer that Contractor personnel have been committed to the provision of the Services at specific times (for example, by providing the Customer with a project plan which includes the scheduling of that personnel), then the Customer will provide at least ten (10) Business Day’s prior written notice, or as otherwise agreed by the parties, if the Contractor is required to postpone or cancel the provision of Services by the Contractor’s personnel.

9.3 If the Customer does not provide the required notice as specified in clause 9.2, the Customer may be liable for additional costs or expenses associated with the delay affecting any such Contractor personnel.

9.4 The Contractor will use all reasonable efforts to mitigate any additional costs or expenses associated with any delays.

 

10. Termination

10.1 Either party may terminate this Agreement at any time by ten (10) Business Days written notice to the other party. Termination prior to the expiry date by the Customer will only have legal effect upon payment to the Contractor of two (2) weeks average invoice payments as a true estimate of loss the Contractor will suffer associated with any early termination by the Customer.

10.2 Without limiting the generality of any other clause in the Agreement or the Law concerning termination of contracts, a party (in this clause “Notifying Party”) may terminate this Agreement immediately by notice in writing to the other party (in this clause “Defaulting Party”) if the Defaulting Party commits a material breach of the Agreement and the Defaulting Party:

i. fails to commence action to remedy the breach within thirty (30) days after the Notifying Party has served notice in writing requiring it to do so; or

ii. having commenced action to remedy the breach, fails to complete that action within the time frame agreed between the Parties or, failing agreement, a time that is reasonable having referred to all of the circumstances

10.3 Clauses 2, 3, 4, 5 and 6 of the T&Cs shall have effect from the Commencement Date and, along with any other clauses, covenants, conditions and provisions of the Agreement which are capable of having effect after the termination or expiration of the Agreement, will remain in full force and effect following the any termination or expiration of the Agreement.

10.4 Following termination of the Agreement:

the Contractor is entitled to invoice the Customer for all work performed and not yet invoiced, or for costs incurred or committed to up to the termination date; and

all monies owed to the other party, other than those that are the subject of a genuine Billing Dispute, will be due and payable and any party owing any money not paid within 10 Business Days of the date of termination will be liable to reimburse the other party for all reasonable costs and disbursements incurred by the other party in the recovery of such sums, including reasonable Interest on any such unpaid amounts.

 

11. Disputes

11.1 If any dispute arises involving the performance of this Agreement or the interpretation of its terms, each party must make a senior representative available and agree to negotiate in good faith to resolve any such dispute.

11.2 It is agreed that if negotiations in clause 11.1 fail, before either party is able to pursue legal action relating to the dispute, the parties shall utilise appropriate mediation services, with each party bearing their own costs in relation to the mediation, and any joint costs to be split equally between the parties.

11.3 Nothing in this clause 11 prevents either party from applying to a court of competent jurisdiction for any urgent interlocutory or declaratory relief

 

12. Governing law

12.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, and the parties to this Agreement agree to submit, subject to clause 11.2, to the jurisdiction of its Courts.

 

13. Waiver

13.1 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 must be in writing and shall not be taken as evidence against that party and shall not preclude that party from subsequently enforcing any part of the Agreement.

 

14. Insurance

14.1 The Contractor will, at its own cost and expense, effect and maintain for so long as it is performing or causing to be performed the Services, the undermentioned insurance policies.

Professional Indemnity Insurance for the amount of $1 million per occurrence and in the aggregate.

Public Liability Insurance for the amount of $5 million.

 

15. Privacy and Modern Slavery Compliance

15.1 The Contractor is subject to the Privacy Act and complies with the applicable Privacy Laws.

15.2 Each party must:

iii. ensure that it complies with applicable Privacy Laws; and

iv. provide reasonable assistance to enable the other party to also comply with the Privacy Laws.

15.3 The Contractor complies with the requirements of applicable Modern Slavery Laws and expects that its suppliers (and to the extent practicable, its other customers and business partners) are compliant with the same requirement or with the applicable Laws in force pertaining to Modern Slavery (which is deemed to include forced labour, human trafficking and child labour).

 

16 Non-Solicitation of Employees or Contractors

16.1 During the course of the Agreement, and for twelve (12) months after the termination of the Agreement for any reason, neither party will directly or indirectly solicit, recruit or employ the services of any of the other party's employees or sub-contractors, without the other party's prior written consent.

16.2 If either party, contracts or engages any former employee or sub-contractor of the other party contrary to clause 16.1 the at fault party agrees to pay the other party on demand a fee of fifty thousand dollars ($50,000).

16.3 Clause 16.1 does not apply where an employee or subcontractor of the other party responds to an externally advertised position.

16.4 Parties agree the amount stated in clause 16.2 is a genuine pre-estimate of the loss the other party will suffer in the event of a breach of this clause 16 and is not to be construed as a penalty in any way.

 

17 Order of Precedence

17.1 In the event of any inconsistency between the terms of the Agreement and any attachments to the Agreement, the order of precedence will be:

i. any Work Order agreed between the parties;

ii. any other document attached to, or subsequently incorporated into the relevant Work Order (if applicable);

iii. these T&Cs (Our Terms & Conditions | (planbconsulting.com.au);

iv. any other document attached to, or subsequently incorporated into, the Agreement. 

17.2 At no time will any terms and conditions received from the Customer override the order of precedence above, unless otherwise specifically agreed in writing by the Contractor Representative.

17.3 In the event, and to the extent, of any inconsistency or where there is intended to be a replacement rather than an addition, the most recent relevant Work Order will prevail over any earlier Work Order(s) for the same or similar services.

 

18. Notices

18.1 Unless otherwise specified in the Agreement or documents collateral to the Agreement, all notices or communications of a contractual nature given in relation to the Agreement by either party to the other party shall be delivered in writing to the applicable party’s authorised representative as noted below (by either email or postage.

Contractor:          the Authorised Contractor Representative.

Customer:          the Authorised Customer Representative.

18.2 A notice that is posted shall be deemed received by the other party seven (7) Business Days after the date of posting.

18.3 A notice sent by email shall be deemed to be received by the other party when the messaging system has delivered the email to the other party and the sender has not received a delivery failure notice.