GENERAL CONDITIONS

1 Services

(a) The Consultant will perform the Services as detailed in the Contract Details.

(b) The Client’s review, approval of, or comment on, any part of the Services will absolve the Consultant from any liability relating to provision of the Services except to the extent that any such liability is attributable to the gross negligence or wilful misconduct of the Consultant.

(c) During the term of this Agreement, the Client must ensure that it does not engage directly or indirectly, any other business or person for the Services including a current or potential competitor of the Consultant.

2 Term

(a) The Consultant will commence performance of the Services on the Commencement Date.

(b) Unless the Client instructs otherwise in writing, the Consultant will continue to provide the Services until the earlier of:

(1) the Expiry Date; or

(2) the date this Agreement is terminated in accordance with clause 12.

3 Fee

(a) The Fee payable for the Services performed by the Consultant is to be calculated in accordance with the Contract Details.

(b) The Client agrees and acknowledges that:

(1) the Fee is deemed to include provision for all costs and expenses (including taxes other than GST) incurred by the Consultant complying with all its obligations under this Agreement; and

(2) unless stated otherwise in this Agreement, the Fee is not subject to adjustment by reason of currency fluctuations or productivity or cost-of-living or other inflation adjusters.

4 Variations

(a) The Consultant may, at any time, issue a direction to the Client which increases, decreases or deletes any part of the Services or changes the character, quality or quantity of any part of the Services (“Variation”).

(b) If a direction is given under clause (a), the Client must accept the Variation, provided it is reasonable.

5 Payments and GST

5.1 Payment

(a) In consideration of the provision of the Services by the Consultant, the Client must pay the Consultant the Fee.

(b) The Consultant is entitled to claim payment (and submit a tax invoice) upfront.

(c) The Client must pay the Consultant the amount claimed in the tax invoice and in the manner detailed in the invoice within 7 days after receipt of the invoice.

5.2 GST

(a) Words or expressions used in this clause 5.2 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related imposition Acts have the same meaning in this clause.

(b) Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as “GST inclusive”, does not include an amount on account of GST.

(c) Despite any other provision in this Agreement, if a party (“Supplier”) makes a supply under or in connection with this Agreement on which GST is imposed to any extent (not being a supply the consideration for which is specifically described in this Agreement as “GST inclusive”):

(1) The consideration payable or to be provided for that supply under this Agreement is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply;

(2) The amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient at the same time as the GST exclusive consideration is payable or to be provided; and

(3) Notwithstanding any other provision of this Agreement, the Recipient is not required to pay any amount unless it has received a valid tax invoice (or valid adjustment note) for that taxable supply.

(d) If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment must be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.

(e) If, at any time, an adjustment event arises in respect of any supply made by a party under this Agreement, a corresponding adjustment must be made between the parties. Payments to give effect to the adjustment must be made between the parties and the Supplier must issue a valid adjustment note in relation to the adjustment event.

(f) If a party is member of a GST group, references to GST which the party must pay and to input tax credits to which the party is entitled, include GST which the representative member of the GST group must pay and input tax credits to which the representative member of the group is entitled.

(g) This clause 5.2 does not merge on completion or termination of this Agreement.

6 Subcontracting

(a) The Consultant may sub-contract the Services.

7 Confidentiality

(a) The Consultant and Client will use the Confidential Information for the purpose of performing the Services and for no other purpose.

(b) The Consultant and the Client will keep confidential and not allow, make or cause any public announcement or other disclosure of or in relation to the Confidential Information without the prior written consent of the other, except to the extent that:

(1) such disclosure is to persons who have a specific need to access that Confidential Information for the purpose of performing the relevant obligations under this Agreement provided such persons are under an obligation of confidentiality;

(2) the Confidential Information is within the public domain or enters the public domain through no fault of the Consultant; or

(3) the disclosure or announcement is required by law, or Court order.

8 Indemnity

The Client shall indemnify the Consultant against any loss or damage and against all claims, demands, proceedings, costs, charges and expenses whatsoever, arising out of:

(a) any claim made by a third party against the Client or Consultant except to the extent that such loss or damage was caused or contributed to by the acts or omissions of the Client; and

(b) loss of or damage to any property (including property of the Client) or injury to or death of any person, arising out of or in connection with the Services, except to the extent that such loss or damage was caused or contributed to by the acts or omissions of the Client,

9 Insurance

9.1 Required Insurances

The Client must effect and maintain:

(a) appropriate insurance:

(1) covering the Client’s activities; and

(2) from the commencement of the Services until the Consultant ceases performing the Services;

(b) Any other insurances required by law.

The Consultant will effect and maintain professional indemnity insurance as it determines in its absolute discretion.

9.2 Policy Requirements

(a) Insurances must:

(1) be with a reputable insurer;

(2) waive any right of subrogation the insurer may have against officers, employees and agents of the Consultant,

(b) Prior to the commencement of the Services, the Client must provide to the Consultant certificates of currency for the insurances listed in clause 10.1.

10 Intellectual Property

(a) The Consultant owns all Intellectual Property Rights in all New Material.

(b) The Client must ensure that, in performing the Services, it does not infringe the Intellectual Property Rights or Moral Rights of any person.

(c) If requested by the Consultant, the Client must use best endeavours to obtain consents from all authors and holders of Moral Rights in the form required by the Consultant.

(d) On completion of performance of the Services (or termination of this Agreement), the Client must return to the Consultant all New Material (including any copies made) together with any documents and materials which the Consultant or Client may have supplied in connection with the Services.

11 Termination

(a) This Agreement may be terminated by the Consultant by giving 7 days written notice to the Client.

(b) This Agreement may be terminated by the Consultant by giving written notice to the Client if the Client fails to make a payment to the Consultant agreed or determined as properly due under this Agreement within 7 days after receiving written notice from the Consultant to pay that part of the Fee (such notice to be given no less than 7 days after the due date for payment of the relevant part of the Fee.

(b) Any termination of this Agreement shall not affect or prejudice any right arising prior to such termination which either party may have against the other.

(c) Clauses 7, 8, 9, 10, 11, 12, 13, 14 and 15 survive termination of the Agreement.

12 Dispute Resolution

(a) Either party may provide written notice to the other party of any dispute arising in relation to this Agreement which must contain particulars of the alleged dispute.

(b) Within 14 days of receiving a notification of dispute under clause (a), the parties must meet together and use their reasonable endeavours to settle the dispute.

(c) If a dispute is not resolved within 28 days after the relevant notice under clause (a) was delivered, then either party may issue proceedings to have the dispute determined.

(d) Despite the existence of a dispute, the parties must continue to perform their respective obligations under this Agreement.

(e) Nothing in clause 12 prevents proceedings being issued for urgent injunctive relief.

13 General

13.1 Entire Agreement

This Agreement comprises the entire agreement of the parties and supersedes all prior agreements, negotiations and understandings between the parties.

13.2 Notices

(a) Any notice, request or other communication under this Agreement (“Notice”) must be in writing and addressed to the other party at the address shown in the Contract Details.

(b) Each Notice may be delivered personally or by facsimile transmission or pre-paid mail and shall be treated as having been duly received:

(1) when delivered (in the case of its being personally delivered);

(2) on the day of transmission if a Business Day, otherwise on the next following Business Day (in the case of its being transmitted by facsimile to the facsimile number of the recipient and a correct and complete transmission report for that transmission being received by the sender); and

(3) on the third Business Day after posting (in the case of its being sent by pre-paid mail posted in an Australian capital city).

13.3 Governing law

(a) This Agreement is governed by the law in force in the jurisdiction identified in the Contract Details.

(b) Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the jurisdiction identified in the Contract Details and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

13.4 No amendment

The agreement evidenced by this Agreement may not be amended except by writing signed by both parties.

13.5 No assignment

The Consultant shall not without the prior written approval of the Client assign or novate this Agreement.

13.6 Nature of relationship

(a) Nothing expressed or implied in this Agreement and no act by a party may be treated as creating an employer and employee relationship, a partnership, a joint venture, the relationship of Client and agent or a fiduciary relationship between the parties.

(b) The Client shall not bind or commit or purport to bind or commit the Consultant in any way or pledge the credit of the Consultant for any purpose.

14 Definitions

The meanings of the terms used in this Agreement are set out below. Other defined terms are found on the Contract Details page.

Term: Meaning

Business Day:  means a day on which banks are open for business in Brisbane excluding a Saturday, Sunday or public holiday in that city.

Confidential Information: means all information related to any aspect of the business of the Consultant or any of its subsidiary companies  or its joint venture partners, which is not known by actual or potential competitors of the Principal, whether of a financial or technical nature or otherwise and includes, but is not limited to, financial statements, projects, studies, reports, drawings, budgets, processes, techniques, ideas, marketing plans and strategies, forecasts, all technical data (including, without limitation, and trade secrets whether obtained, received or developed by or in relation to the Services or otherwise.

Existing Material: means any material which is existing at the Commencement Date, or produced after the Commencement Date, independently of this Agreement, but which forms part of a deliverable under this Agreement.

Intellectual Property Rights: means inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques; copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other work or subject matter in which copyright subsists and may in the future subsist; Confidential Information; and trade and service marks (whether registered or unregistered).

Moral Rights means any moral rights arising under the Copyright Act 1968 (Cth); any rights described in Article 6b of the Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended or revised from time to time), being ‘droit moral’; and any other similar rights arising under any other law in Australia or anywhere else in the world at any time.

New Material means all material produced or developed by or on behalf of the Consultant in the performance of the Services, either alone or in conjunction with the Client or any third party in which subsists newly developed Intellectual Property Rights (but specifically excludes Existing Material).

End of Agreement.