This document dictates the Terms and Conditions of conducting work between Engenesis Services Pty Ltd ACN 616 893 700 and its clients (“Recipient”).
A The Recipient requires the Service Provider to perform the Services.
B The Service Provider agrees to provide the Services in accordance with the Deliverables and Service Levels and on the terms and conditions of this Agreement.
1.1 In this Agreement, unless the contrary intention appears from the context:
"Agreement" means this document, Schedule 1, any Work Orders and any annexure to this document.
“Commencement Date” means the date specified as such in Item 2 of Schedule 1.
“Applicable Requirements” means any legislation, code of practice or arrangement which from time to time regulates or affects the Services or the activities to which the Services relate.
“Service Provider’s Affiliates” means a related body corporate of the Service Provider (“Related Affiliate”), an agent or franchisee of the Service Provider or a Related Affiliate, or any other person which the Service Provider or a Related Affiliate licenses or permits to conduct any services on its behalf or with its authority.
"Confidential Information" means:
a) any information which is by its nature confidential, regardless of the form or medium of that information; and
b) any other information relating to the business, computer systems or affairs of the Service Provider, the Service Provider’s Affiliates, or their customers (including personal information), including designs, proposals, contracts, financial details, marketing strategies, policies, products, services, processes, operating practices and procedures, business plans, reports, plans and documents, which is or has been disclosed (whether orally, electronically, in writing or otherwise), or otherwise obtained by the Recipient, but excludes information which:
c) was in the public domain at the time of its receipt by the Service Provider; or
d) became part of the public domain after its receipt by the Recipient, otherwise than through a disclosure by the Service Provider, or any person to whom it has disclosed Confidential Information.
“Cessation Date” means the date specified as such in Item 3 of Schedule 1.
“Customer Data” means all data and material that is provided by the Recipient and used in respect of the receipt of the Services by the Recipient.
“Deliverables” means the deliverables to be achieved by the Service Provider in providing the Services and specified in Item 5 of Schedule 1 and any deliverables set out in any Work Orders.
“Fees” means the fees payable to the Service Provider for performing the Services and calculated on the basis set out in Item 6 of Schedule 1 and in any Work Orders.
“Force Majeure Event” means:
a) in respect of obligations other than any obligation to pay money, any act of God, act of public enemy, war, blockade, revolution, riot, insurrection, civil commotion, Denial of Service (DOS) or Distributed Denial of Service (DDOS) attack, third party provider outages, cable cuts, lightning, storm, flood, fire, earthquake, explosion, industrial strike, disputes, actions or other matters, frustration or hindrance by a Governmental Agency or embargo, in each case to the extent beyond the reasonable control of a party, and any other event beyond the reasonable control of a party; and
b) in respect of obligations to pay money, a general, specific or local failure of systems or networks involved in the transmission of money in a banking system, to the extent beyond the reasonable control of a party.
“GST” has the meaning it has in the GST Act.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“GST Exclusive Consideration” means any consideration payable under this Agreement that does not include an amount referable to as GST.
“Insolvent” means a party:
a) enters into any arrangement between itself and any creditors;
b) ceases to be able to pay its debts as and when they become due;
c) ceases to carry on business;
d) enters into liquidation or any form of insolvency administration; or
e) has a receiver, a receiver and manager, a trustee in bankruptcy, and administrator, a liquidator, a provisional liquidator or other like person
Appointed to the whole or any part of its assets or business.
“Intellectual Property” means all intellectual property rights conferred by law (whether registered or unregistered) including:
a) business names;
b) trade or service marks;
c) patents, patent applications, drawings, discoveries, inventions,improvements, trade secrets, technical data, formulae, computer programs, data bases, know how, production methodologies, logos, designs, design rights, copyright or similar industrial or intellectual property rights;
d) copyright and moral rights; and
e) any improvements, developments, modifications or inventions in relation to the above intellectual property.
“Minimum Insurance” means the insurances for the minimum amounts specified in Item 9 of Schedule 1.
“Privacy Act” means the Privacy Act 1988 (Cth), as amended from time to time including the Privacy Amendment (Enhancing Privacy Protection) Act 2012.
“Rebate” means the amount or the amount calculated on the basis set out in Item 7 of Schedule 1.
“Schedule 1” means Schedule 1 attached to this Agreement.
"Services" means the services to be provided by the Service Provider as set out in Item 4 of Schedule 1 and as set out in any Work Orders.
“Service Levels” means the service levels to be achieved by the Service Provider in providing the Services and specified in Item 5 of Schedule 1 and as set out in any Work Orders.
“Tax Invoice” has the meaning is has in the GST Act.
“Work Order” means a work order substantially in the form of Schedule 2 which has been executed by the parties and represents a separate agreement on the terms of this Agreement.
2. TERM OF CONTRACT
This Agreement commences on the Commencement Date and, subject to the completion of all Services to the Recipient’s reasonable satisfaction and earlier termination in accordance with clause 10, continues until the Cessation Date.
3. CONTRACT FOR SERVICE
3.1 Where the Service Provider is an individual, clause 3.2 applies. In all other circumstances, clause 3.3 shall apply.
3.2 Subject to clause 3.1, the Service Provider is an independent contractor and is not an employee of the Recipient. The relationship between the Service Provider and the Recipient is not to be construed as one of employer and employee, nor of master and servant.
3.3 Subject to clause 3.1, this Agreement is a contract for services and is not to be construed as an employment contract. Any individual who provides Services on behalf of the Service Provider under the terms of this agreement is solely an employee of the Service Provider and is not an employee of the Recipient. The relationship between such individual and the Recipient is not to be construed as one of employer and employee, nor of master and servant.
4. SERVICES PROVIDED BY SERVICE PROVIDER
4.1 This agreement consists of:
a) these general terms; and
b) Schedule 1; and
c) any Work Orders.
The Service Provider will commence the provision of the Services on the Commencement Date.
The Service Provider will provide the Recipient with the Services set out in Schedule 1 and in each Work Order, in compliance with the Service Levels and otherwise in accordance with the terms of this agreement.
5. SERVICE PROVIDER’S OBLIGATIONS AND WARRANTIES
5.1 The Service Provider agrees to:
a)provide the Services to the Recipient in an efficient, professional, and best- practice manner, and to meet the Deliverables and Service Levels, and any other specifications as agreed between the parties from time to time, and provide immediate notice of any delay;
b)comply with all reasonable instructions and directions issued by the Recipient, and provide the Reports specified in Item 8 of Schedule 1 and in each Work Order; and
c)comply with the Applicable Requirements, including occupational health and safety requirements as notified by the Recipient from time to time.
5.2 The Service Provider warrants that:
a)it has the authority to enter into this Agreement, and the appropriate licences, rights and/or title to any products or materials provided in connection with the Services;
b)it possesses all necessary skills, expertise, qualifications, authorisations and any other statutory requirements necessary to perform the Services in accordance with this Agreement;
c)it understands and is able to meet the Applicable Requirements, the Deliverables and Service Levels and the Recipient’s requirements and specifications (as notified from time to time) in providing the Services; and
d)the use by the Recipient of any products or materials provided in connection with the Services will not breach any the intellectual property rights of any third party.
5.3 To the maximum extent permitted by law, the Service Provider expressly excludes all warranties, conditions and representations, whether express or implied, unless otherwise set out in this Agreement.
5.4 The Service Provider expressly excludes any warranty that any software, code, data, materials or processes provided by the Service Provider in accordance with this Agreement is free from any defect or bug not detected during the Term.
5.5 The Recipient agrees that it has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person.
6. FEES AND PAYMENT
6.1 The Recipient agrees that any deposits made are non-refundable.
6.2 The Recipient will pay any undisputed and valid Tax Invoice within the due date indicated on the invoice.
6.3 Where the Recipient considers that an invoice is not correctly rendered, the Recipient will within 14 days of receiving the invoice issue to the Service Provider a notice setting out the reasons for the non-compliance and identifying any amounts which are in dispute. If the dispute relates to the:
a) amount of the invoice, the Recipient will pay the undisputed portion of the invoice but may withhold the balance pending resolution of the dispute in accordance with clause 133.
b) form of the invoice, the Recipient may withhold payment of all amounts under the invoice until the Service Provider resubmits the invoice in a form that complies with this agreement.
6.4 If any dispute relating to an invoice exists which cannot be settled by negotiation between the parties and therefore must be referred for determination by representatives of each party in accordance with clause 13, the Recipient must pay the disputed amount into an escrow account administered by the solicitor of the Recipient. The Recipient must provide written confirmation of such payment to the Service Provider within 24 hours of payment into this account.
6.5 If the Service Provider incurs additional third-party costs in relation to the Services during the Term, the Service Provider may increase the Fees payable by the Recipient by providing the Recipient with 30 days’ written notice..
6.6 The Recipient may withhold the Rebate from any Fees payable, on the terms set out in Schedule 1 and in each Work Order, if the Service Provider fails to meet the Deliverables or Service Levels as specified in Schedule 1 and in each Work Order.
6.7 The Recipient must pay interest of 10% per annum on all overdue amounts, including on any GST payable, in connection with the overdue payments, calculated daily from the due date until paid in full.
6.8 If the Recipient fails to pay any amount owed to the Service Provider under this Agreement, the Service Provider may suspend the provision of the Services and the licence granted under clause 7.8 until payment of all amounts owed to the Service Provider by the Recipient is made.
6.9 If the Recipient fails to pay any amount owed to the Service Provider under this Agreement, the Service Provider may rescind any offer of discount or special service offered or provided to the Recipient.
7. INTELLECTUAL PROPERTY
7.1 The ownership of both parties’ intellectual property rights in existence prior to the commencement of this Agreement are unaffected by any term of this Agreement.
7.2 Any intellectual property developed by the Service Provider during the course of this Agreement, including but not limited to code, data, materials or processes, is owned by the Service Provider.
7.3 Except as may otherwise be specified in this Agreement, all Intellectual Property rights in the Customer Data are and will remain the property of the Recipient.
7.4 The Recipient grants the Service Provider a royalty-free, non-exclusive, revocable licence to use the Customer Data to the extent necessary to perform its obligations under this Agreement.
7.5 Subject to clause 7.8, the Service Provider grants to the Recipient a royalty-free, non- exclusive, non-revocable licence to use any software, source code, product or process that may form part of the Services.
7.6 Subject to clauses 6.8 and 7.2, the parties agree that upon termination of this Agreement, all Intellectual Property in the Deliverables is owned by the Recipient. The Recipient grants to the Service Provider a royalty-free, exclusive, non-revocable licence to use any software, source code, product or process that may form part of the Deliverables.
7.7 Except as may be expressly provided otherwise in any head licensor’s terms as notified by the Service Provider to the Recipient, all the Service Provider’s Intellectual Property is and remains the property of the Service Provider or its licensor (as applicable), and the Recipient obtains no rights or interests in the Service Provider Intellectual Property or any component thereof.
7.8 The Recipient must not reverse engineer any software, source code, product or process that may form part of the Services.
7.9 The Recipient agrees the Service Provider may use any Intellectual Property incidental or in relation to the Services and the Deliverables in any portfolio or statement of project experience as required by the Service Provider from time to time.
8. INDEMNITY AND INSURANCE
8.1 The Recipient agrees to indemnify the Service Provider against all direct and indirect claims, demands, charges, expenses or losses made against or incurred by the Service Provider as a direct or indirect result of:
a) any breach this Agreement by the Recipient or its employees, agents, contractors, suppliers or advisors;
b) any breach of law by the Recipient or its employees, agents, contractors, suppliers or advisors;
c) any negligent or wilful act or omission by the Recipient or its employees, agents, contractors, suppliers or advisors; or
8.2 The Recipient must not, during the Term, use the Services or the Deliverables in a manner that may:
a) bring the Service Provider into disrepute;
b) cause damage to the goodwill, reputation or business of the Service Provider;
c) amount to a breach of any law or regulation;
d) create an undue burden on the Service Provider as determined by the Service Provider from time to time;
e) impact the efficiency or security of the Services or the Deliverables;
f) infringe any third-party intellectual property rights; or
g) allow or cause the distribution of unsolicited or concealed email or any trojan horse, worm, malicious or destructive code or any instruction activating such code.
8.3 The Service Provider agrees to hold and maintain sufficient insurance to ensure it is able to meet its obligations to the Recipient, and the Recipient’s Affiliates under this Agreement, including the Minimum Insurances. Upon request by the Recipient, the Service Provider may provide certificates of currency of those insurances to the Recipient.
8.4 Notwithstanding any other clause in this Agreement, the parties agree that the liability of the Service Provider in relation to any loss incurred by the Recipient in connection with this Agreement is limited to the lesser of:
a) providing a remedy or workaround for any defect in the Services or the Deliverables;
b) an amount equal to the Fee payable to the Service Provider for the duration of the Work Order to which the loss is related; or
c) where the Service Provider is indemnified for such liability under any insurance policy, an amount equal to the amount received by the Service Provider under that insurance policy.
9. CONFIDENTIALITY AND PRIVACY
9.1 Both parties agree to take all reasonable measures to ensure the confidential information of the other party is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to such information.
9.2 The Recipient agrees to not post, publish or otherwise distribute any information, details or make any reference to the Service Provider or its clients on social media, online platforms or any form of publication unless authorised by the Service Provider in writing.
9.3 Each party may only use, disclose or reproduce the other party’s Confidential Information strictly for the purposes of complying with this Agreement.
9.4 The Recipient agrees:
a) to comply with those provisions of the Privacy Act which concern the security, use and disclosure of personal information (as defined in the Privacy Act) as if it were an APP entity, credit provider or a tax file number recipient as defined in the Privacy Act;
b) not to transfer any Confidential Information, or personal information outside of Australia, or allow parties outside of Australia to have access to it; and c) immediately notify the Service Provider of any breach of this clause 9 (including where the Recipient should reasonably suspect such a breach has occurred), and co-operate with the Service Provider in the investigation, or resolution, of any such breach, or any complaint alleging a privacy breach.
10.1 Either party may terminate this Agreement:
a) if the other party commits a breach that is not capable of remedy;
b) if a breach notice has been delivered to the other party (“Breaching Party”) and the Breaching Party fails to remedy the breach within 14 days of it receiving the breach notice;
c) if there is a delay, including a delay beyond the reasonable control of a party, and it prevents the Services being completed (in whole or part) for a period of 30 days; or
d) immediately if the other party becomes Insolvent.
10.2 Notwithstanding any other clause in this Agreement, the Service Provider may terminate this Agreement in whole or in part by providing the Recipient with 30 days written notice.
10.3 The Recipient may terminate this Agreement by providing the Service Provider with 30 days’ written notice if the Service Provider increases the Fees in accordance with clause 6.5 by more than 5% in any 12 month period.
10.4 Termination of the Agreement (for whatever cause) will not affect any right or cause of action which has accrued to the date of termination.
11. OBLIGATIONS ON TERMINATION OR EXPIRY
11.1 Upon termination or expiry of this Agreement, the Recipient will promptly:
a) return to the Service Provider all copies of the Service Provider’s Confidential Information, and other property of the Service Provider;
b) cease accessing any of the Service Provider’s systems, electronic or communications links; and
c) deliver to the Service Provider a statutory declaration made by an authorised officer of the Recipient declaring that neither it nor its representatives, officers or employees have any material forms (including electronic copies) of the Service Provider’s Confidential Information or other materials in their possession, power or control.
12. GOODS AND SERVICES TAX (GST)
12.1 Terms used in this clause 12 have the same meaning as in the GST Act. The fees specified in this Agreement do not include an amount for GST unless otherwise stated.
12.2 Where GST is imposed on any supply made under this Agreement by one party (“Supplying Party”) to another party (“Receiving Party”), the Receiving Party must pay or provide the GST Exclusive Consideration for the supply and, in addition to and at the same time as the GST Exclusive Consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST Exclusive Consideration (without deduction or set-off) by the prevailing GST rate. This clause does not apply to a supply for which a GST inclusive consideration has been agreed.
13. DISPUTE RESOLUTION
Any dispute or difference between the parties arising from or in connection with this Agreement which cannot be settled by negotiation between the parties must be referred for determination by representatives of each party for at least 10 days, and, failing agreement, appointed of an arbitrator by the President of the Institute of Arbitrators & Mediators Australia (New South Wales Division).
14. SPECIAL CONDITIONS
This Agreement is subject to the Special Conditions (if any) set out in Item 10 Schedule 1 and in each Work Order. In the event of inconsistency between the Special Conditions and the provisions of the Agreement, the Special Conditions apply.
15.1 This Agreement is made under and governed by the laws of the State of New South Wales and both parties exclusively submit to the jurisdiction of courts of New South Wales and their respective appellate courts.
15.2 Notices to or by a party delivered in person are deemed to be given by the sender and received by the addressee at the address listed in this Agreement when delivered to the addressee: if by post, three (3) business days from and including the date of postage; or if by facsimile, when transmitted to the addressee provided that if transmission is on a day which is not a business day or is after 5.00 pm (addressee's time) on the next business day.
15.3 Any provision or the application of any provision of the 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. A waiver of any right must be in writing, and does not affect any other rights.
15.4 An amendment or variation to this agreement is not effective unless it is in writing and signed by the parties. This Agreement may be signed in counterparts.
15.5 The Service Provider may assign or transfer this Agreement at any time, by providing written notice to the Recipient. The Recipient may not assign or transfer this Agreement.
15.6 If a party is unable, wholly or in part, by reason of a Force Majeure Event, to perform an obligation under this Agreement, the affected party will not be liable to the other party for a failure to perform that obligation and that obligation will be suspended to the extent and for the duration of the Force Majeure Event provided that the affected party gives the other party prompt notice with sufficient details of the relevant Force Majeure Event, including, to the extent known:
a) details of the obligation the affected party cannot perform;
b) a full description of the Force Majeure Event;
c) an estimate of the time during which the effects of the Force Majeure Event will continue; and
d) any measures proposed to be adopted to remedy or abate the Force majeure Event.
15.7 If a Force Majeure Event prevents a party from substantially performing its material obligations under this Agreement for longer than 60 days, then the other party may at the expiry of that period, provided the effects of the event of Force Majeure are still subsisting, give notice in writing to the affected party immediately terminating this Agreement.
15.8 Despite clause 15.6 and clause 15.7, the party affected by the Force Majeure Event must:
a) use reasonable endeavours to mitigate the effect of the Force Majeure Event upon its performance of this Agreement and to fulfil its obligations under this Agreement (but without prejudice to any party’s right to terminate this Agreement);
b) keep the other party informed of the steps being taken to mitigate the effect upon that party’s performance of this Agreement; and
c) when the period for which its obligations are affected by the Force Majeure Event ceases, recommence performance of all its affected obligations under this Agreement the subject of its original notice under clauses 15.6 and 15.7.
15.9 Clauses 15.6 and 15.7 do not apply to the extent that any Force Majeure Event is caused or contributed to by a breach of this agreement by the party claiming to be affected by the Force Majeure Event.