Terms of Service
1. THE CONTRACT
1.1 The Schedule and these general terms and conditions form the Contract (“the Contract”) between the Consultant and the Client. No other terms and conditions or other documents are relevant unless expressly acknowledged and referenced in or attached to this document. If any special conditions are specified, they form part of the Contract and in the event of any inconsistency between any of the provisions comprising the Contract then those provisions shall be read and interpreted in conjunction with the following:
1.1.1 Special Conditions;
1.1.2 Schedule;
1.1.3 Terms and Conditions;
1.1.4 Other Contract Documents.
2. DEFINITIONS
2.1 Background Intellectual Property means Intellectual Property that exists prior to the Start Date or are created, developed or acquired by the Consultant independently of undertaking its obligations under this Contract.
2.2 Confidential Information means any information which is designated as confidential or which by its nature is confidential or which is disclosed in circumstances importing an obligation of confidence.
2.3 Consultant means the person or entity named in the Schedule and in the case of a corporation, business, partnership or trustee, its successors and permitted assigns. The term shall include its employees, agents, servants, and if applicable, sub-contractors and anyone or any organisation engaged on any other basis.
2.4 GST means goods and services tax as imposed by the GST law.
2.5 GST Law includes A New Tax System (Goods and Services Tax) Act 1999 and all associated legislation.
2.6 Intellectual Property or IP means all rights in relation to patents, inventions, plant breeders’ rights, registered or unregistered trademarks and service marks, registered designs, copyrights, database rights, design rights, know-how, trade secrets, applications for any of the above, and any similar right recognised in any jurisdiction, including all rights of action in relation to the infringement of any of the above.
2.7 Moral Rights has the meaning given to that term in Part IX of the Copyright Act 1968 (Cth) and includes: (a) right of attribution of authorship; (b) a right not to have authorship falsely attributed; and (c) a right of integrity of authorship.
2.8 Term means the period from the Start Date to the End Date.
2.9 The IP and Moral Rights shall remain and vested in the Consultant at all times (as far as permissible under law), unless otherwise advised or agreed to in writing by the Consultant.
All other capitalised terms are as defined in the Schedule. Any Special Conditions set out in the Schedule take precedence over the provisions of the body of this Contract in the event of inconsistency.
3. CONSTRUCTION AND INTERPRETATION
In this Contract, headings are for guidance only and do not affect the interpretation of the clauses. The following rules apply unless the context requires otherwise:
3.1 words importing the singular include the plural and vice versa;
3.2 words importing one gender include all other genders;
3.3 reference to a person includes a body politic, a body corporate, a partnership, an unincorporated association and a natural person, and the person's executors, administrators, successors, transferees, substitutes (including persons taking by novation) and assigns;
3.4 reference to a statute, ordinance, code or other law includes regulations, directions and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them from time to time;
3.5 reference to $, dollar or AUD is to Australian currency;
3.6 any agreement, obligation, representation, right or warranty on the part of or in favour of two or more persons binds or is for the benefit of them severally and not jointly or jointly and severally;
3.7 a term or definition incorporated by reference into this document remains in force even if the document from which it was referred may be no longer in force;
3.8 where the day on, or by which, anything is to be done, is a Saturday, Sunday, public holiday or day on which the banks are closed, in the place in which that thing is to be done, then that thing need not be done until the next day which is not a Saturday, Sunday, public holiday or day on which the banks are closed, in that place;
3.9 reference to a clause is a reference to a clause of this Contract and includes all sub-clauses, paragraphs, and parts of that clause; and
3.10 where a word or phrase has a particular meaning, other parts of speech and grammatical forms of that word have corresponding meanings.
4. ENGAGEMENT
4.1 The Client hereby engages the Consultant to provide the Services and Deliverables to the Client in accordance with this Contract and the Client agrees to accept the engagement as per the terms and conditions of this Contract.
4.2 The Client agrees that any preliminary work preparatory to the provision of the Services and Deliverables not otherwise covered by a separate agreement, are covered by the terms of this Contract.
5. STATUS OF CONSULTANT
The parties acknowledge that this Contract does not create between a relationship of partners, agency, joint venture, or employment, and that this Contract is not for the provision of the Consultant’s consultancy, advice or otherwise. The Consultant warrants that it is an independent professional business, and that neither the business, the Consultant nor any of its key personnel or representatives are employees of the Client in any other capacity.
6. THE PARTIES’ REPRESENTATIVES
The Client represents to the Consultant that he/she/they are/is authorised to enter into this Contract.
7. DISCLOSURE
The Client:
7.1 acknowledges that he/she/they has/have entered into this Contract relying on his/her/their own due diligence and has/have and agrees at all times to disclose all relevant information to the Consultant.
7.2 warrants that no act or omission by it does or will infringe the intellectual property rights of any third party or is or will be illegal, offensive or defamatory or prejudicial to the good name and reputation of the Consultant.
7.3 must not subcontract any part of its obligations under this Contract without the Consultant’s prior written approval which approval must not be unreasonably withheld or delayed;
7.4 must comply fully and promptly at its own expense in all things with all statutes, acts, ordinances, by-laws, proclamations, orders or regulations at present or at any time in the future affecting or relating in any way to the provision of the Services and Deliverables and with all requirements which may be made or notices or orders which may be given in respect of anything affected by such Services or Deliverables (where applicable);
7.5 must comply with all applicable Consultant’s policies and procedures;
7.6 agrees to release and indemnify and keep the Consultant fully indemnified from and against all actions, proceedings, claims, demands, charges, penalties, expenses and all other liabilities of whatsoever nature arising from the Client’s breach of any of the terms and conditions under this Contract including insofar as permissible under law of any obligations or any negligent or wilful conduct or non-disclosure caused by the Client.
7.7 the Consultant’s liability under the indemnity in clause 7.8 will be reduced proportionately to the extent that the loss or damage was caused or contributed by the Client or its officers, employees, sub-contractors, or agents; and
7.8 must, unless otherwise agreed in writing provide at its own cost and expense all nutritional supplements or products reasonably required for the provision of the Services and Deliverables required under this Contract as advised by the Consultant.
8. FEES PAYABLE TO THE CONSULTANT
8.1 The Client shall pay the Fee in the manner specified in the Schedule. Unless otherwise agreed in advance, and in writing, the Fee is the total consideration payable.
8.2 All instalments of the Fee shall be paid on account and no payment of an instalment shall be evidence of the due performance of the Consultant’s contract obligations.
8.3 Invoices are processed by the Consultant as per the payment terms set out in the Schedule pursuant to this Contract.
8.4 The Consultant may withhold refund of any amount which in good faith, the Client disputes is payable until the dispute is resolved so that the amount becomes payable. For the avoidance of doubt, this clause does not apply to any portion of the amount payable to the Consultant that is not in dispute. The parties agree that they will use reasonable endeavours to expeditiously resolve any dispute over payable amounts.
9. GST
9.1 Unless otherwise stated, all amounts payable under this Contract are expressed to be exclusive of, but subject to, GST and both parties acknowledge that where GST is applied to any payment the amount payable shall be increased by multiplying the GST exclusive amount by the then applicable rate of GST.
9.2 The Consultant shall provide the Client with a proper GST invoice in relation to the Fee at the time in which the Consultant exceeds the GST threshold of $75,000.
10. CONFIDENTIALITY
10.1 Notwithstanding the expiry or earlier termination of this Contract, the parties shall not disclose to any third party, other than a professional advisor that owes the recipient an obligation of confidence, any Confidential Information received by virtue of this Agreement, without the party that disclosed the Confidential Information providing prior written consent.
10.2 For the purpose of this clause Confidential Information means all information relating directly or indirectly to the Client to which the Consultant has access, and includes information that is by its nature confidential, information that is designated by the Client as confidential, and information that the Consultant knows or ought to know is confidential. It does not include information that is or becomes public knowledge and has been confirmed publicly by the Client, or that is required by law to be disclosed.
10.3 The obligations in this clause do not apply to information that is required by law to be disclosed (provided that, as soon as reasonably practicable before making a disclosure, the Consultant informs the Client of the intended disclosure).
11. PUBLICATION AND PUBLICITY
11.1 The Client will not use the name or logo of the Consultant in connection with this Contract, or in any publication relating to the Services or Deliverables without having obtained the Consultant’s prior written consent. Such use will be subject to any consent conditions of the Consultant, acting reasonably, may attach to the consent. Consent will not be required to the extent that:
11.1.1 such use is reasonably necessary to comply with laws and regulations governing actions taken pursuant to this Contract; or
11.1.2 is necessary and timely to refer to the existence (as distinct from the terms) of this Contract in communications with government agencies; or
11.1.3 such use is necessary for a party to comply with their obligations under this Contract.
11.2 The Client must not knowingly make or authorise to be made any inaccurate or misleading statement concerning the Consultant in a way which would mislead the public, or adversely affect the good name, goodwill, reputation, or image relating to the Consultant.
11.3 The Client must not use the Services or Deliverables or the existence of this Contract of to represent, expressly or implicitly, that the Consultant supports or endorses relating to the Consultant's business, reputation, goods, or services.
12. INTELLECTUAL PROPERTY AND DOCUMENTS
12.1 The Client acknowledges all Intellectual Property rights in any deliverables, materials, or documentation created by the Consultant in the performance of this Contract vest immediately in the Consultant.
12.2 The Client will do all things necessary, including sign any document and to procure such signature from its personnel, to give effect to the vestment of the Intellectual Property rights in and to the Consultant.
13. INSURANCE
13.1 The Consultant shall maintain insurances required by law or as set out in the Schedule.
13.2 The Consultant must, upon request, provide the Client with copies of its certificates of currency.
13.3 The Consultant’s liability to the Client shall be limited or otherwise only applicable as per the terms of this Agreement or limited by the terms of any of its/her insurance policy or policies.
13.4 If the Client suffers loss or damage attributable either partly or wholly due to the Consultant’s negligence or wrongful act or omission, or breach of Contract, the rights of the Client to recover damages shall be limited to and by any terms or limits of any policy held by the Consultant.
14. TERMINATION
14.1 On provision of the Services and Deliverables or on termination or frustration of the Contract, the Client shall promptly return all the other party’s documents, materials and other information provided to it by that other party. Notwithstanding this, a party is not required to return or destroy any of the other party’s documents, materials, or other information to the limited extent necessary to comply with any statutory requirement, where stored on back-up or archival electronic systems or as is reasonably necessary to be used in Court proceedings that have commenced or are anticipated. In those circumstances, the relevant material must be kept securely, and used only for that limited purpose.
14.2 Without prejudice to any other rights, remedies or liabilities, the Contract may be terminated by the Consultant upon written notice if:
14.2.1 the Client becomes incapable of continuing by reason of death, bankruptcy, or insolvency (as defined by the Corporations Act); or
14.2.2 the Client is in breach of this Contract and fails to remedy the breach within 7 days of notice requiring it to do so.
14.3 The Consultant may also terminate for convenience at any time by 14 days’ notice to the Client, at the Consultant’s absolute discretion, even in the absence of breach by the Consultant. In such event and in the absence of any evidence of breach by the Client, the Client will remunerate the Consultant for any Services or Deliverables provided to the date of that termination and also reimburse the Consultant for any costs reasonably incurred by it as at the termination date in anticipation of having to complete the Services under the Contract. The Consultant will not be liable to pay any other compensation.
14.4 Without prejudice to any right of a party to institute proceedings in a court of competent jurisdiction, any dispute between the parties shall, in good faith, first be sought to be resolved by negotiation. If the dispute is not resolved within 60 days, the parties will explore alternative dispute resolution methods.
15. FORCE MAJEURE
15.1 “Force Majeure” means an act, event, circumstance, or cause beyond the reasonable control of a party and which could not have been prevented by that party’s reasonable efforts. For the avoidance of doubt, if in progress at the date of entry into this Contract the COVID-19 pandemic shall be treated as a Force Majeure under this clause, to the extent that it renders either party unable to perform their obligations under this contract.
15.2 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Contract (other than an obligation to pay or cause payment of money for goods or services provided) if they are unable to perform due to Force Majeure.
15.3 If the Consultant is unable to perform its obligations (other than an obligation to pay or cause payment of money for goods or services provided) due to Force Majeure, the performance of that Party’s obligations will be suspended.
15.4 If a party has been unable to perform its obligations due to Force Majeure for more than thirty (30) calendar days, the other party may immediately terminate this Contract on giving notice in writing to the party whose performance has been prevented due to Force Majeure.
15.5 For the avoidance of doubt, the Consultant will not be required to pay any sum under this Contract for any Service or Deliverable that was unable to be provided due to Force Majeure.
16. GENERAL
16.1 The rights and obligations under this Contract cannot be waived except by express notice specifying the waiver.
16.2 This Contract and any of its obligations may be varied only in writing and signed by each party.
16.3 The Client shall immediately upon becoming aware notify the Consultant of any matter which may give rise to an actual or potential conflict of interest.
16.4 In addition to any other method of service permitted by law notices shall be deemed to be properly served if sent to the recipient by prepaid mail, personal delivery or email.
16.5 This Contract may be signed in counterparts and/or electronically.
16.6 Neither party can transfer, assign, mortgage, charge or encumber all or any part of this Contract without the prior written approval of the other party such approval not to be unreasonably withheld. For the purposes of this clause an assignment shall be deemed to take place in any circumstances where there is a change in the effective control of the Consultant.
16.7 The failure, delay, relaxation, or indulgence on the part of either party in exercising any power or right conferred upon that party by this Contract does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other right or power under this Contract.
16.8 If any provision of this Contract is invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of enforcement without regard to the invalid provisions shall be and continue to be valid and enforceable in accordance with their terms.
16.9 This Contract is governed by the laws of the State of Queensland. The parties submit to the jurisdiction of the Courts of Queensland.