1. Interpretation
Unless the context otherwise requires:
(a) A reference to legislation includes all regulations, amendments, and successor legislation incorporating or replacing its provisions.
(b) Singular words include the plural and vice versa.
(c) A reference to a person or individual includes any legal entity, and vice versa.
(d) Gender-specific words include all genders.
(e) References to a clause or schedule are to clauses or schedules of this Agreement.
(f) All schedules, annexures and attachments form part of this Agreement.
(g) A reference to an agreement or document includes that document as amended, novated, supplemented or replaced from time to time.
(h) A reference to a party includes that party’s executors, administrators, successors and permitted assigns.
(i) Where a term is defined, related parts of speech have a corresponding meaning throughout this Agreement.
(j) A reference to dollars or ‘$’ means Australian dollars.
(k) Terms defined in the Corporations Act 2001 (Cth), the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)), and the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this Agreement, unless the context otherwise requires.
(l) The Special Conditions form part of this Agreement. To the extent of any inconsistency between this Agreement and the Special Conditions, the Special Conditions prevail.
2. Engagement
2.1 The Client engages the Consultant to perform the Services on the terms set out in this Agreement.
2.2 In consideration of that engagement, the Client agrees to pay the Fees and any agreed expenses to the Consultant in accordance with this Agreement.
2.3 This Agreement commences on the date it is signed by both parties and continues for a minimum term of four (4) months (Initial Term). After the Initial Term, this Agreement will continue on a month-to-month basis until terminated by either party in accordance with clause 10.1.
3. Services
3.1 The Consultant will perform the Services:
(a) with reasonable skill, care and diligence, applying its own professional skill and judgement;
(b) at the Consultant’s office or at such other location as the parties may agree;
(c) in compliance with all applicable laws; and
(d) otherwise in accordance with this Agreement.
3.2 The Consultant will use reasonable endeavours to commence performing the Services on the Commencement Date and will continue to provide the Services until terminated in accordance with clause 10. If performance is delayed or protracted for any reason beyond the Consultant’s reasonable control — including any delay caused or contributed to by the Client or a third party — the Consultant will promptly notify the Client of the cause and anticipated duration of the delay.
3.3 The Consultant will use reasonable endeavours to ensure the Services are performed by the Key Person. If the Key Person is unavailable, the Consultant will use reasonable endeavours to provide suitably qualified replacement personnel.
3.4 The Consultant will use reasonable endeavours to comply with reasonable directions given by the Client in connection with the Services.
3.5 The Consultant may subcontract any part of the Services without the Client’s prior written consent.
3.6 The Consultant will maintain professional indemnity insurance for not less than $500,000 per claim, and workers’ compensation insurance to the extent required by law. The Consultant will provide the Client with evidence of current insurance coverage upon written request.
4. Client Obligations
4.1 The Client must:
(a) provide, as soon as practicable and at its own cost, all information the Consultant reasonably requires to perform the Services;
(b) arrange reasonable and safe access to any site or location outside the Consultant’s control where the Services are to be performed;
(c) cooperate fully with the Consultant to facilitate satisfactory progress, including providing access to personnel, prompt responses to requests, and timely approvals where required; and
(d) pay all Fees and agreed expenses when due (plus applicable GST) and pay interest on overdue amounts in accordance with clause 5.
4.2 The Client acknowledges that the Consultant is entitled to rely on all information and documents provided by the Client.
5. Invoicing and Fees
5.1 The Consultant will issue tax invoices to the Client at the frequency set out in Item 6 of the Schedule.
5.2 The Client must pay each invoice by direct debit or electronic funds transfer (or as otherwise reasonably directed by the Consultant) within seven (7) days of the date of the invoice.
5.3 The Client must reimburse the Consultant for any agreed expenses incurred in performing the Services.
5.4 Unless otherwise stated, the Fees are exclusive of GST. Where the supply of Services constitutes a taxable supply, the Client must pay any applicable GST in addition to the Fees, subject to receipt of a valid tax invoice.
5.5 If the Client fails to pay any amount when due, the Client must pay interest on the outstanding amount, on demand, at the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) plus 2% per annum, calculated daily from the due date until the date of payment. The Consultant may capitalise accrued interest.
6. Change Requests
6.1 The Client may request a change to the scope or nature of the Services by written notice to the Consultant (Change Request).
6.2 Upon receiving a Change Request, the Consultant will, if it is willing and able to accommodate the change, provide the Client with details of any revised Fees applicable to the amended Services.
6.3 A Change Request that is agreed to in writing by both parties will form part of this Agreement.
7. Intellectual Property
7.1 The Client owns all Intellectual Property in designs, drawings, documents and other deliverables prepared or created by the Consultant in the course of providing the Services.
7.2 The Client grants the Consultant a limited, non-exclusive, royalty-free licence to use the Client’s Intellectual Property solely to the extent necessary to perform the Services for the project or activity for which the Services are being provided.
8. Limitation of Liability and Indemnities
8.1 Provided the Consultant has exercised reasonable care and skill, the Consultant is not liable to the Client in respect of:
(a) the accuracy, completeness, fitness for purpose or any other aspect of the Services;
(b) any damage to property or death or injury to any person caused directly or indirectly by the Services;
(c) any third-party claim against the Client relating to the Services; or
(d) any matter in respect of which the Client has assumed risk or liability under this Agreement.
8.2 The Consultant does not warrant that any particular result or objective will be achieved.
8.3 The Services are provided for the Client’s benefit only. The Client must not distribute any material prepared by the Consultant to a third party without the Consultant’s prior written consent. The Consultant has no liability to any third party who uses or relies on the Services or any deliverable.
8.4 Except in the case of death or personal injury caused by the Consultant’s negligence, the Consultant’s total aggregate liability under or in connection with this Agreement (whether in contract, tort, negligence, breach of statutory duty or otherwise) is limited to the total amount paid by the Client to the Consultant under this Agreement.
8.5 The Client must indemnify and hold harmless the Consultant and its employees against all claims and Losses arising from or in connection with:
(a) any infringement by the Client of a third party’s Intellectual Property rights;
(b) any unauthorised use or distribution of the Services or deliverables by a third party;
(c) information supplied to the Consultant by the Client;
(d) information supplied to the Consultant by a third party at the Client’s direction; or
(e) any breach by the Client of its obligations under this Agreement.
8.6 Neither party is liable to the other for indirect or consequential loss of any kind, including loss of revenue, profit, business or goodwill, whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
8.7 The Client acknowledges that it enters into this Agreement without reliance on any representation, warranty or term not expressly contained in this Agreement. All implied conditions, warranties and terms are excluded to the fullest extent permitted by law.
8.8 The obligations under this clause 8 apply to the maximum extent permitted by law and survive the termination or expiry of this Agreement.
9. Dispute Resolution
9.1 If a dispute arises between the parties in connection with this Agreement, either party may give the other written notice of the dispute with sufficient detail to identify its nature and particulars.
9.2 The parties must use all reasonable good-faith endeavours to resolve the dispute within ten (10) Business Days of the dispute notice. If the dispute remains unresolved, either party may refer it to mediation on the following terms:
(a) the mediator will be a person agreed by the parties or, failing agreement within five (5) Business Days, a person nominated by the President of the Law Institute of Victoria;
(b) the parties will share the mediator’s costs equally, and each party will bear its own legal costs;
(c) each party may be legally represented; and
(d) the mediation will be held in Melbourne, Australia.
9.3 Nothing in this clause prevents a party from seeking urgent interlocutory relief from a court.
10. Termination
10.1 After the expiry of the Initial Term, either party may terminate this Agreement without cause by giving the other party not less than four (4) weeks’ written notice.
10.2 Either party may terminate this Agreement immediately by written notice if the other party:
(a) is in default of any obligation under this Agreement, and that default (if capable of remedy) remains unremedied for more than five (5) Business Days after written notice to remedy;
(b) commits a material breach that is not capable of remedy; or
(c) becomes bankrupt, insolvent, makes an arrangement with creditors, has a winding-up order made, passes a voluntary winding-up resolution, has a receiver or manager appointed, or is otherwise unable to pay its debts as and when they fall due.
10.3 On termination or expiry, the Client must pay all outstanding Fees and Fees for Services performed up to the date of termination that have not yet been invoiced, upon receipt of a valid tax invoice from the Consultant.
10.4 Termination or expiry does not affect any rights that have accrued to either party before that date.
11. Confidentiality
11.1 Each party must not, and must ensure its employees and agents do not, disclose any Confidential Information of the other party during or after the term of this Agreement, except in the proper course of performing the Services, as required by law, or with the prior written consent of the relevant party.
11.2 At any time on request, or upon expiry or termination of this Agreement, the Client must promptly return to the Consultant or destroy (as directed by the Consultant) all documents and other materials containing the Consultant’s Confidential Information.
