Professional Services Agreement

Recitals

The Customer has requested and the Supplier has agreed to provide the Services in accordance with the terms and conditions of this Agreement.

Definitions and Interpretation

1.1. In this Agreement (including the recitals), unless the context otherwise requires:

“Agreement” means this agreement (including the recitals and the schedule), as amended or supplemented by the Parties in writing;
“Business Day” means any day except a public holiday or a Saturday or Sunday;
“Business Hours” means the hours from 8:30am to 5:00pm during a Business Day.
“Confidential Information” means information of a confidential nature which the Supplier gives the Customer or the Customer gives to the Supplier under this Agreement whether given verbally or in writing, personal or otherwise, and including documents, plans, marketing strategies, trade secrets, technical information, know-how and intellectual property or any information advised to be of a confidential nature where such information is not already in the public domain;
“Corporate Identity” in relation to each Party means that Party’s trademark(s), service mark(s), trade name(s), corporate mark(s) and/or logo(s) (including and not limited to the branding of either Party);
“Delivery Location” means the address for delivery of the Products to the Customer, as advised by the Customer to the Supplier;
“Intellectual Property” or “Intellectual Property Rights” includes all present and future rights in relation to copyright, trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of this Agreement;
“Restraint Area” has the meaning set out in clause 11.6;
“Restraint Period” has the meaning set out in clause 11.5;
“Services” means the goods and/or services as set out in the Schedule;
“Schedule” means a schedule to this Agreement;
“Price” means the price for the Services as set out in the Schedule; and
“Products” means any goods to be supplied by the Supplier to the Customer in accordance with the Services.

1.2. In this Agreement, unless the context otherwise requires:

(a) headings are for convenience only and do not affect its interpretation or construction;

(b) the singular includes the plural and vice versa;

(c) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this Agreement;

(d) words importing a gender include other genders;

(e) the word “person” means a natural person and any association, body or entity whether incorporated or not;

(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) “includes” is not a word of limitation;

(i) no rule of construction applies to the disadvantage of a Party because this Agreement is prepared by (or on behalf of) that Party;

(j) a reference to any thing is a reference to the whole and each part of it;

(k) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and

(l) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

Provision of Services

2.1. In consideration of the Price, the Supplier agrees to provide the Services to the Customer in accordance with the terms and conditions of this Agreement.

2.2. Where the Services comprise an undertaking of services by the Supplier:

(a) the Supplier will deploy its suitably qualified, knowledgeable, and skilled employees and contractors to carry out the Services;

(b) the Supplier will carry out the Services with the quality, efficiency, and workmanship in line with industry leading practices and in a safe manner;

(c) the Supplier will act in accordance with the Customer’s reasonable instructions including but not limited to using the equipment and hardware provided by the Customer; and

(d) the Supplier will use reasonable endeavours to minimise disruption to the Customer’s business operations.

2.3. Where the Services comprise a provision of Products by the Supplier:

(a) the Supplier agrees to pack and deliver the Products to the Delivery Location;

(b) the Supplier will deliver the Products in a reasonable time, or in accordance with any other time frame agreed between the Parties;

(c) the Customer will pay for the costs of freight of the Products to the Delivery Location, including all costs of packing the Products for transportation unless otherwise agreed between the Supplier and the Customer;

(d) risk in the Products will pass to the Customer upon delivery of the Products to the Delivery Location;

(e) if the Customer believes that the Products are defective, the Customer will:

i. as soon as reasonably practicable, notify the Supplier of the alleged defect;

ii. return the Products to the Supplier after notification of the defect to the Supplier;

iii. provide the Supplier with ninety (90) days from the Supplier’s receipt of the Products in which to determine, in the Supplier’s reasonable opinion, whether the Products are defective; and

iv. where the Supplier is of the opinion that the Products are defective, the Supplier will, at its absolute discretion, provide a replacement Product or a credit note for the Price of the Product (where the Customer has already paid for the Products);

(f) the Customer acknowledges and agrees that the Supplier makes no warranty as to the fitness of the Products for the Customer’s purpose, whether or not such a purpose was notified to the Supplier by the Customer and the Customer undertakes and agrees to make its own enquiries as to the suitability of the Products for the Customer’s purpose(s) prior to entering into this Agreement.

2.4. If the Supplier conducts repairs to goods and/or Products, the Customer acknowledges and agrees that data stored on those goods and/or Products may be destroyed. The Customer is responsible for ensuring it has back-up copies of its data prior to the Supplier undertaking any repairs. The Customer further agrees that in undertaking the Services, the Supplier may use refurbished parts to repair the goods and/or Products.

2.5. The Services may, from time to time, be varied by written agreement between the Parties.

2.6. The Services will begin within 30 days of the Executed Date or Service Start Date in accordance with this Agreement.

2.7. If delivery of the Services has not begun within 30 days of the Executed Date or Service Start Date in accordance with this Agreement due to delays by the Customer, any deposit shall be forfeited.

2.8. If delivery of the Services has not begun within 30 days of the Executed Date or Service Start Date in accordance with this Agreement due to delays by the Customer, the Supplier may at their sole discretion require this Agreement to be renegotiated.

2.9. The Customer agrees to the Supplier using the Customer’s logo on the Supplier’s website and marketing materials indicating the Customer is a client of the Supplier. The Supplier shall not disclose any confidential information obtained from the Customer due to work carried out by the Supplier for the Customer without prior written approval from the Customer.

2.10. If during the delivery of the Services the Supplier at their sole discretion decides substantial new information has been provided or the Customer has a change of mind that has a material impact to the delivery or complexity or cost of the Services, the Supplier may require this Agreement to be renegotiated.

Expenses

3.1. If the Supplier, in the provision of Services to the Customer, incurs costs and expenses payable to third parties, the Supplier will invoice the Customer for those costs and expenses, and the Customer will be liable to reimburse the Supplier for the same. The Supplier will inform the Customer of the costs and expenses payable prior to the Supplier incurring the costs and expenses.

Payment

4.1. All accounts will be settled in accordance with the payment terms specified on the Supplier’s invoices or as agreed in writing between the Customer and Supplier.

4.2. If any amount remains unpaid after the due date for payment specified on the Supplier’s invoice, the Supplier may elect to suspend provision of the Services. If any amount owing to the Supplier remains outstanding beyond sixty (60) days after the due date specified on the Supplier’s invoice, the Supplier may elect to terminate this Agreement.

4.3. If the Customer disputes the whole or any part of the amount claimed in the Supplier’s invoice, the Customer agrees to pay the undisputed portion on or prior to the due date. The dispute regarding the remainder of the invoice may be referred to the dispute resolution procedure in clause 10.

Record Keeping

5.1. The Supplier will retain copies of all materials associated with the provision of the Services to the Customer, including without limitation:

(a) details of the Services provided;

(b) invoices of any costs and expenses incurred; and

5.2. The Supplier will include on invoices:

(a) details of the Services provided; and

(b) details of any costs and expenses incurred.

Confidential Information

6.1. Neither Party may, without the prior written consent of the other, disclose the other Party's Confidential Information unless it is compelled to do so by law.

6.2. Each Party will take all reasonable steps to ensure that its personnel do not make public or disclose the other Party's Confidential Information.

6.3. Notwithstanding any other provision of this clause 6, a Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers, and accountants.

6.4. The Parties acknowledge and agree that this clause 6 survives the termination of this Agreement.

Intellectual Property

7.1. The Customer agrees that it has obtained all relevant Intellectual Property Rights over any images, written text, video, software, or other content which it posts, displays, transmits, provides, or otherwise makes available to the Supplier (“Content”).

7.2. By providing Content to the Supplier, the Customer agrees that that Content is the sole responsibility of the Customer and that the Supplier has no responsibility to the Customer or to any third party for any Content which may infringe a trademark, copyright, patent, or any other Intellectual Property Right of a third party.

7.3. The Supplier claims no ownership or control over any Content, and the Customer retains any Intellectual Property Rights already held in the Content.

7.4. In executing this Agreement, the Supplier will ensure all material delivered as part of the Services be free from any third-party Intellectual Property Rights constraints or limitations, including any trademark, service-mark, logo, graphic, picture, and font infringements. This includes rights of any sort of things produced in the course of or in connection with the Services such as text, graphics, logos, button icons, video images, audio clips, source code, presentations, and instruction manuals.

7.5. For original material, the Supplier shall, upon receipt of payment in accordance with the Schedule, transfer any and all Intellectual Property Rights for original works contained in the Services to the Customer, including rights of any sort of things produced in the course of or in connection with the Services such as text, graphics, logos, button icons, video images, audio clips, source code, presentations, and instruction manuals.

7.6. The Supplier shall retain any and all Intellectual Property Rights to any and all works and Intellectual Property owned by the Supplier prior to the provision of services, that is used to create any derivative works for the Customer in the course of or in connection with the Services to the Customer.

7.7. To the extent permitted by applicable law, the Supplier consents, and will obtain all other necessary written consents, to any act or omission that would otherwise infringe any moral rights in the Services, and further the Supplier waives and will obtain all other necessary written waivers, all moral rights in the Services, for the benefit of the Customer, its licensees, successors in title, and anyone authorised by any of them to do acts comprised in the copyright.

7.8. Nothing in this Agreement shall give either Party any rights in respect of any Intellectual Property in each Party’s branding and/or other Corporate Identity or of the goodwill associated with the business of that Party.

7.9. Each Party warrants and represents that each Party’s Intellectual Property provided or used pursuant to or in connection with this Agreement will not infringe any third party’s Intellectual Property Rights. This includes but is not limited to, any patents, copyright, registered designs, or rights of confidence. Each Party agrees to indemnify and hold the other Party harmless from and against any breach of this clause 7.9 by the first Party.

Assignment

8.1. The Supplier may assign, subcontract, or license its obligations under this Agreement without the express written consent of the other Party.

Termination

9.1. Either Party may terminate this Agreement by giving thirty (30) days' written notice to the other Party. Upon termination of this Agreement, neither Party will be released from any liability or right of action which at the time of expiry or termination has already accrued to either Party or which may accrue in respect of any act or omission prior to such expiry or termination, including but not limited to the recovery of any monies due under this Agreement.

Dispute Resolution

10.1. If a dispute arises out of this Agreement, neither Party may commence legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

10.2. A Party claiming a dispute has arisen must give written notice to the other Party detailing the nature of the dispute, the desired outcome, and the action required to settle the dispute (“Dispute Notice”).

10.3. On receipt of the Dispute Notice by the other Party, the Parties must:

(a) within seven days of the Dispute Notice, endeavour in good faith to resolve the dispute expeditiously by negotiation or such other means upon which they may mutually agree;

(b) if after twenty-one (21) days after the date of the Dispute Notice, the dispute has not been resolved, either Party may request that an appropriate mediator be appointed to assist in the mediation of the dispute;

(c) the Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.

10.4. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.

10.5. If thirty (30) days have lapsed following the service of the Dispute Notice and the dispute has not been resolved, either Party may ask the mediator to terminate the mediation, and the mediator must do so.

10.6. In the event that the dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the dispute.

Non-Solicitation

11.1. The Customer undertakes and agrees not to, at any time during the Term or following the termination or expiration of this Agreement, during the Restraint Period within the Restraint Area, induce or attempt to induce any of the employees or contractors of the Supplier to terminate their agreements or contracts with the Supplier.

11.2. The Customer undertakes and agrees not to, at any time during the Term or following the termination or expiration of this Agreement, during the Restraint Period within the Restraint Area, induce or attempt to induce any of the employees or contractors of the Supplier to work directly or indirectly with the Customer.

11.3. The Customer acknowledges that the restrictions contained in this clause are:

(a) fair and reasonable in regard to the subject matter, area, and duration;

(b) reasonably required by the Supplier to protect its business and financial interests; and

11.4. The Supplier undertakes and agrees not to, at any time during the Term or following the termination or expiration of this Agreement, during the Restraint Period within the Restraint Area, induce or attempt to induce any of the employees or contractors of the Customer to terminate their agreements or contracts with the Customer.

11.5. The Supplier undertakes and agrees not to, at any time during the Term or following the termination or expiration of this Agreement, during the Restraint Period within the Restraint Area, induce or attempt to induce any of the employees or contractors of the Customer to work directly or indirectly with the Supplier.

11.6. The Supplier acknowledges that the restrictions contained in this clause are:

(a) fair and reasonable in regard to the subject matter, area, and duration;

(b) reasonably required by the Customer to protect its business and financial interests; and

11.7. For the purposes of this clause 11, the “Restraint Period” shall mean 12 months from the termination of expiration of this Agreement. However:

(a) if a Court of competent jurisdiction determines that 12 months is unreasonable, the restraint will last for a period of 9 months, or

(b) if a Court of competent jurisdiction determines that 9 months is unreasonable, the restraint will last for a period of 6 months, or

(c) if a Court of competent jurisdiction determines that 6 months is unreasonable, the restraint will last for a period of 3 months.

11.8. For the purposes of this clause 11, the “Restraint Area” shall mean Australia. However:

(a) if a Court of competent jurisdiction determines that this is too wide, the States and/or Territories of Australia in which the party seeking the restraint (“Principal”) operates its business;

(b) if a Court of competent jurisdiction determines that this is too wide, the State of Victoria;

(c) if a Court of competent jurisdiction determines that this is too wide, the restraint will extend 10 kilometres from the place of business of the Principal, or

(d) if a Court of competent jurisdiction determines that this is too wide, the restraint will extend 5 kilometres from the place of business of the Principal.

11.9. Each of the covenants contained in these subclauses 11.1 to 11.6 of this Agreement constitutes an independent and separate restraint imposed upon the Customer and Supplier under this Agreement.

11.10. The Customer covenants that it will not aid, abet, counsel or procure any other person to do any of the acts referred to in this clause 11.

11.11. The Parties agree that the restraints contained in this clause 11 are reasonable and necessary to protect the goodwill of the Supplier.

11.12. The Supplier covenants that it will not aid, abet, counsel or procure any other person to do any of the acts referred to in this clause 11.

11.13. The Parties agree that the restraints contained in this clause 11 are reasonable and necessary to protect the goodwill of the Customer.

11.14. The Parties acknowledge and agree that the provisions of this clause 11 survive the termination or expiration of this Agreement.

Limitation of Liability

12.1. The Customer acknowledges and agrees that, subject to clause 12.2 and the Competition and Consumer Act 2010 (Cth) or other applicable legislation, the Supplier’s total liability for any loss, damage, or reliance shall be limited to:

(a) in the case of goods, either replacement of goods, repair of goods, or a refund of the price paid for the goods (as determined by the Supplier); or

(b) in the case of services, either supply of the services again or a refund of the price paid for the services (as determined by the Supplier).

12.2. The Supplier indemnifies the Customer and the Customer’s directors, officers, employees, agents, and contractors against any and all loss whatsoever arising out of or referable to:

(a) any applicable workers’ compensation legislation, including any workers’ compensation or other claim in respect of any relevant legislation as amended from time to time, made against the Customer by or in relation to representatives engaged by the Supplier to perform work in relation to this Agreement;

(b) any injury to, or death of, persons and any loss or damage to Customer property or third party property, real or personal, caused or contributed to by the Supplier or its representatives; and

except to the extent that the Loss is directly attributable to the negligent, wilful, wrongful, or fraudulent act or omission of the Customer or the Customer’s directors, officers, employees, agents, and contractors.

12.3. The Customer indemnifies the Supplier and the Supplier’s directors, officers, employees, agents, and contractors against any and all loss whatsoever arising out of or referable to:

(a) any applicable workers’ compensation legislation, including any workers’ compensation or other claim in respect of any relevant legislation as amended from time to time, made against the Supplier by or in relation to representatives engaged by the Customer to perform work in relation to this Agreement;

(b) any injury to, or death of, persons and any loss or damage to the Supplier property or third-party property, real or personal, caused or contributed to by the Customer or its representatives; and

except to the extent that the Loss is directly attributable to the negligent, wilful, wrongful, or fraudulent act or omission of the Supplier or the Supplier’s directors, officers, employees, agents, and contractors.

12.4. The Customer acknowledges and agrees that in no event will the Supplier’s liability include any amount for indirect, special, or consequential loss or damage.

Insurance

13.1. The Supplier has in place (with a reputable insurer acceptable to the Customer) and will provide the Customer with evidence, prior to the commencement of this Agreement and at any time thereafter upon request, of the insurances and policies specified below:

(a) Professional indemnity insurance in the amount of $2,000,000 AUD per claim.

(b) Public liability insurance in the amount of $5,000,000 AUD per claim

Force Majeure

14.1. If, by reason of any event of Force Majeure which was outside the control of a Party, results in the delay of, or prevention from, performing any of the provisions of this Agreement:

(a) then such delay of performance shall not be deemed to be a breach of this Agreement;

(b) no loss or damage shall be claimed by the other Party from the other by reason thereof; and

(c) the Parties shall use their best endeavours to minimise and reduce any period of suspension occasioned by any event of Force Majeure.

14.2. “An event of Force Majeure” shall mean and include fire, flood, casualty, lockout, strike, labour condition or industrial action of any kind, unavoidable accident, national calamity or riot, plague, epidemic, pandemic, disease or any other public health crisis, including quarantine or other employee restrictions, act of God, the enactment of any act of Parliament or the act of any legally constituted authority, any cause or event arising out of or attributable to war or any other cause or event (whether of a similar or dissimilar nature), outside the control of the Parties.

General Provisions

15.1. The relationship between the Customer and Supplier is that of a principal and an independent supplier. Nothing in this Agreement shall be construed as creating an employment relationship between the Customer and Supplier.

15.2. All notices, demands, and other communications between the Parties for the purposes of this Agreement shall be in writing and addressed to the Party’s address stipulated in the Schedule. Such notice, if delivered personally or sent by facsimile, shall be deemed received on that day or if delivered by other means, after two (2) Business Days of sending.

15.3. Any provision of, or the application of any provision of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

15.4. Any provision of, or the application of any provision of this Agreement which is void, illegal, or unenforceable in any jurisdiction does not affect the validity, legality, or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

15.5. If a clause is void, illegal, or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.

15.6. This Agreement may be executed in any number of counterparts, and all such counterparts when executed and taken together will constitute this Agreement.

15.7. This Agreement may only be amended by written agreement of the Parties.

15.8. Each Party acknowledges and agrees that they have been allowed the opportunity to obtain independent legal advice in relation to this Agreement.

15.9. This Agreement shall be governed by and construed in accordance with the law for the time being applicable to the Supplier, and the Parties agree to submit to the non-exclusive jurisdiction of the Courts of that jurisdiction.

15.10. If there is any departure from this Agreement or the Schedule, it must be noted in writing and signed by the Parties, after which it shall form a separate schedule under this Agreement.

15.11. This Agreement shall be governed under the jurisdiction of the laws of Victoria, Australia.