Paragraph
1.1 Definitions
In this Services Agreement, unless the contrary intention is expressed, defined terms have the meanings set out
below.
Agreement Details means the document issued by the Service Provider to the Client for engagement of the
Service Provider to provide the Services.
Business Day means any weekday on which banks are generally open for business in the location where the
Services are performed.
Commencement Date means the date this Services Agreement starts as set out in the Agreement Details.
Completion Date means the date this Services Agreement ends as set out in the Agreement Details.
Confidential Information means this Services Agreement, any information (regardless of form) disclosed or
otherwise made available by a disclosing party to the party receiving the information, for, or in connection with this
Services Agreement, including any financial information, business strategies, personal information, and
information which:
(a) is marked as being proprietary or confidential to the disclosing party; or
(b) in the circumstances surrounding disclosure, or because of the nature of the information, ought in good faith
be treated as confidential;
whether the information was:
(c) disclosed or created before, or after the date of this Services Agreement; or
(d) disclosed as a result of discussions between the parties concerning or arising out of this Services
Agreement.
Contract Material means any material created by the Service Provider under this Services Agreement, including
any Intellectual Property Rights in that material.
GST has the meaning given in the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of
the Commonwealth. Expressions defined in the GST Act have the same meaning when used in this Services
Agreement.
Intellectual Property Rights includes rights in relation to present and future copyright, confidential information,
patents, inventions, registered and unregistered trade marks and registered or unregistered designs and includes
any right to licence and sub-licence any of the above.
Client means the party described in the Agreement Details as such.
Client Group means the Client or any other associated entity of the Client from time to time within the meaning of
section 50AAA of the Corporations Act 2001 (Cth) and each director, officer, trustee, contractor, employee and
agent of the Client and its related bodies corporate both jointly and severally.
Laws mean acts, laws, ordinances, regulations, by-laws, orders, awards and proclamations whether
Commonwealth, State or local and any Australian Standards and regulatory requirements.
Required Notice means the notice period for termination for convenience as set out in the Agreement Details.
Services means the services as set out in the Agreement Details.
Services Agreement means this Services Agreement, which consists of the Agreement Details and the Terms
and Conditions.
Services Fee means the fees payable by the Client to the Service Provider for the Services as set out in the
Agreement Details.
Service Provider means the party described as such in the Agreement Details.
Personnel means all employees, contractors, subcontractors, volunteers and invitees of a party.
Site means any property or place owned, leased or otherwise controlled by the Client.
Term means the term referred to in clause 2 .
Valid Invoice means an invoice which complies with clause 5 (Fees and Payment).
1.2 Interpretation
In this Services Agreement:
(a) the singular includes the plural and vice versa;
(b) a person includes a body corporate or unincorporate;
(c) a party includes the party’s executors, administrators, successors and permitted assignees;
(d) a reference to any legislation includes all delegated legislation made under it and amendments,
consolidations, replacements or re-enactments of any of them;
(e) ‘including’ and similar expressions are not words of limitation;
(f) a reference to a clause or schedule or party is a reference to a clause of or a schedule or party to this
Services Agreement;
(g) a reference to a document (including this Services Agreement) is to that document as amended, novated or
replaced;
(h) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of
that word or expression have a corresponding meaning;
(i) headings do not affect interpretation; and
(j) no provision will be construed to the disadvantage of a party only because that party was responsible for
preparing this Services Agreement or that provision.
2. TERM
This Services Agreement commences on the Commencement Date and, subject to clause 11 (Termination),
automatically terminates on the Completion Date.
3. SERVICES
The Service Provider will provide the Services at the times/s and place/s and for the Services Fee as described in the
Agreement Details.
4. HOW THE SERVICES MUST BE PROVIDED
4.1 Service Provider’s obligations
The Service Provider must provide the Services exercising due care and skill, and to a standard reasonably to be
expected of a person both competent and experienced in providing services similar to the Services.
4.2 Assignment or subcontracting of Services
The Client acknowledges and agrees that the Service Provider may assign or subcontract any part of the Services,
from time to time, to perform all or part of the Services.
5. FEES AND PAYMENT
5.1 The Client will pay the Services Fee to the Service Provider in accordance with this clause 5 (Fees and Payment).
5.2 The Service Provider will issue the Client with a Valid Invoice for the Services Fee in the manner and at the time
as outlined in the Agreement Details for the Services provided by the Service Provider.
5.3 If the Agreement Details set out that the Services Fee, or any part of the Services Fee, is required in advance of
the Services being performed, the Service Provider is not obligated to perform the Services, or any part of the
Services, until the required payment is received in full.
5.4 Unless otherwise stated in the Agreement Details, all payments under this Services Agreement will be made by
the Client no later than 14 days after receipt by the Client of an invoice for payment subject to the invoice:
(a) being a valid tax invoice for the purposes of the GST Act;
(b) including a calculation of the Services Fee (where applicable); and
(c) including a description of the Services performed up to the date of invoice (where applicable).
5.5 If any payment of the Services Fee owing to the Service Provider is not paid by the Client in accordance with
clause 5.3 and after the Service Provider has provided 14 days’ notice of such late payment to the Client and the
amount still remains outstanding, the Service Provider may charge interest on such late payment at the rate of
2% per month until such outstanding Services Fees are paid. If any amounts remain outstanding for more than 45
days, the Service Provider may, without limiting any of its other rights under this Services Agreement, initiate
debt collection proceedings to collect the unpaid balance for any Services performed and expenses incurred by
the Service Providers in connection with its provision of the Services (in which case the Client will be responsible
for any expenses the Service Provider incurs in doing so).
6. GST
6.1 Unless otherwise stated in this Services Agreement, all amounts payable by one party to another party under this
Services Agreement are GST exclusive.
6.2 If GST is imposed or payable on any supply made by a party under this Services Agreement, the recipient of the
supply must pay to the supplier, in addition to the GST exclusive consideration for that supply, an additional
amount equal to the GST exclusive consideration multiplied by the prevailing GST rate. The additional amount is
payable at the same time and in the same manner as the consideration for the supply.
7. ACCESS TO SITE BY THE SERVICE PROVIDER
The Client will provide to the Service Provider access to any Site as is reasonably necessary for the Service Provider
to carry out the Services subject to the Service Provider complying with any reasonable requirements of the Client in
relation to the Site, such as any work health and safety requirements and any relevant requirements contained in
clause 1 (Insurance and Risk).
8. INTELLECTUAL PROPERTY
8.1 Ownership
(a) Unless agreed otherwise in the Agreement Details, the ownership of, and all Intellectual Property Rights in,
any Contract Material, vests on creation in the Service Provider.
(b) The Client will do all acts and execute all documentation (and require the Client’s Personnel to do all acts
and execute all documents) required to vest title in the Contract Material in the Service Provider.
8.2 Existing material
Clause 8.1 (Ownership) does not affect the ownership of or Intellectual Property Rights in any material developed by
either party prior to the creation of this Services Agreement or independently and unrelated to this Services Agreement
(Existing Material).
8.3 Licence
(a) The Service Provider grants to the Client a non-exclusive, royalty-free licence for the Term to use the
Contract Material only for the purposes of the Services being provided under this Services Agreement.
(b) Each party grants to the other a non-exclusive, royalty-free licence to use any Existing Material required only
for the purposes of this performing its obligations under this Services Agreement.
9. INDEMNITIES AND WARRANTIES
9.1 Mutual indemnity
(a) Each party is liable for and indemnifies the other party against all loss (including reasonable legal costs),
liability (including for any loss or damage to property or damage injury or death to any person) and claims by
any person, arising directly from or in connection with the breach of any provision of this Services
Agreement, except to the extent that any loss, liability or claim is caused by the act or omission of the party
seeking to rely on the indemnity.
(b) Neither party is liable to the other for any consequential or indirect loss or damages (including any loss of
profits/business) arising out of or in connection with this Services Agreement.
(c) The indemnities in this clause 9 (Indemnities and Warranties) survive termination or expiry of this Services
Agreement.
9.2 Warranties
Each party represents and warrants to the other that it has the right, power and authority to enter into this Services
Agreement and perform its obligations in accordance with this Services Agreement.
10. NEGATION OF EMPLOYMENT AND AGENCY
10.1 Exclusion of relationships
The parties acknowledge and agree that this Services Agreement and its performance does not represent or imply a
partnership, agency, fiduciary relationship, employment relationship, joint venture, distribution or any other category of
commercial or personal relationship between the parties recognised at law or in equity as giving rise to forms of
specific rights and obligations.
10.2 Independent Service Provider
The parties acknowledge that:
(a) the Service Provider is an independent contractor and provides the Services in that capacity only; and
(b) under no circumstances will the Service Provider be considered to be the employee, servant or agent of the
Client Group.
11. TERMINATION
11.1 Termination for default
(a) Either party (the Non-Defaulting Party) may terminate this Services Agreement by giving the other party
(the Defaulting Party) notice if the Defaulting Party:
(i) repudiates its obligations under this Services Agreement;
(ii) becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of
insolvency administration or resolution;
(iii) ceases to, or takes steps to cease to, conduct its business in the normal manner; or
(iv) does not comply with a material obligation under this Services Agreement and, in the Non-Defaulting
Party’s reasonable opinion, either the non-compliance can be remedied, but the Defaulting Party does
not remedy it within 14 days after the Non-Defaulting Party gives the Defaulting Party notice to remedy
it, or the non-compliance cannot be remedied.
(b) If this Services Agreement is terminated due to default:
(i) the Non-Defaulting party must take reasonable steps to mitigate its loss;
(ii) the parties are relieved from future performance of this Services Agreement without prejudice to any
right of action that has accrued prior to the date of termination; and
(iii) rights to recover damages are not affected by the termination.
11.2 Termination for convenience
Either party may also terminate this Services Agreement at any time for its sole convenience, and for any reason,
by giving the Required Notice to the other party. The termination will be effective from the date stated in the
notice.
11.3 Effect of termination
If this Services Agreement is terminated for any reason:
(a) the Service Provider will only be obligated to provide the Services up to the date of termination; and
(b) the Client remains liable to pay the Service Provider for all Services performed up to an including the
effective date of termination. This includes any costs or commitments made by the Service Provider in good
faith in connection with the provision of the Services prior to the termination.
11.4 Return of documents after termination
Upon termination of this Services Agreement, for any reason, each party, where requested, will return all documents
and other materials received from the other in relation to this Services Agreement.
12. CONFIDENTIALITY
12.1 Each party must not disclose and ensure that its Personnel do not disclose any Confidential Information of the
other party given or received in connection with this Services Agreement.
12.2 This clause does not apply to information which is or becomes a part of the public domain otherwise than by a
breach of this clause 12 (Confidentiality), information which is disclosed to a parties Personnel who may need
such information to enable the Service Provider to fulfil its obligations under this Services Agreement or any
information which is required to be disclosed pursuant to any Laws.
12.3 Each party must, if reasonably required by the other, sign a confidentiality deed, in relation to the Services.
13. VARIATION
13.1 If the Client requires any variation to the Services, the Client must notify the Service Provider in writing of the
requested variation.
13.2 The Service Provider may accept or reject the requested variation, in its reasonable discretion and subject to any
reasonable change to the Services Fees that may result from the requested variation.
13.3 The Service Provider is not bound by any requested variation to the Services until the Service Provider has
accepted such variation in writing, subject to the agreement between the parties on any change to the Services
Fee required.
14. CLIENT OBLIGATIONS
The Client agrees to:
(a) provide the Service Provider with all necessary information and specifications reasonably required by the
Service Provider to provide the Services in accordance with this Services Agreement;
(b) cooperate (and ensure its Personnel) with the Service Provider as the Service Provider reasonably requires
in relation to the Services;
(c) provide timely responses and feedback to the Services Provider where the Services include time sensitive
deadlines; and
(d) make available at its cost any such equipment or facilities reasonably required by the Service Provider to
provide the Services.
15. DISPUTES
15.1 If any party anticipate or become aware of any material change, delay or challenge that could negatively impact
the activities under this Services Agreement, it will immediately notify the other, and the parties will together agree
on appropriate actions to address such change, delay or challenge.
15.2 If the parties have disagreements about this Services Agreement, they will first try to solve them through amicable
and good faith discussions.
16. NOTICES
A notice or other communication to be given or made under this Services Agreement must be in writing and addressed
to the representative of each of the parties at the address outlined in the Agreement Details, and is taken to be served:
(a) in the case of hand delivery – when delivered;
(b) if sent by prepaid post – on the third Business Day after the date of posting; or
(c) if sent by email – at the time the email is sent.
17. ELECTRONIC EXECUTION
This Services Agreement may be signed by way of electronic signature using such method agreed by the parties in
writing.
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18. GENERAL
18.1 An amendment or variation to this Services Agreement is not effective unless it is in writing and signed by the
parties.
18.2 Nothing in this Services Agreement is taken to limit a party’s ability to engage or enter into agreements with any
third party.
18.3 Neither party will assign or otherwise transfer any of its rights under this Services Agreement without the prior
written consent of the other party which will not be unreasonably withheld.
18.4 No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A
single or partial exercise of any right, power or remedy does not preclude any other or further exercise of any
right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
18.5 This Agreement may be executed in counterparts, all of which taken together constitute one document.
18.6 If the Client enters into this Services Agreement as a trustee of a trust, it represents and warrants to the Services
Provider that:
(a) it is a validly appointed trustee of the trust;
(b) this Agreement constitutes valid and enforceable obligations of the trust;
(c) it has full and valid power and authority under the trust to enter into this Agreement and to carry out the
transactions contemplated by this Services Agreement (including all proper authorisations and consents);
and
(d) it is the sole trustee of the trust.
18.7 If the existence or likelihood of a conflict of interest becomes apparent to either party, each party will cooperate
and act in good faith to try and resolve such conflict of interest.
18.8 If any part of this Services Agreement is found to be invalid or of no force or effect under any applicable laws, that
part will be regarded as removed to the extent permitted by law, and the remainder of the Agreement will have full
force and effect.
18.9 Clauses 8 (Intellectual Property), 9 (Indemnities and Warranties), and 12 (Confidentiality) survive the termination
(for any reason) or expiry of this Services Agreement.
18.10 The laws of Victoria, Australia govern this Services Agreement, and the parties submit to the non-exclusive
jurisdiction of the courts in Victoria, Australia.
