TRADING TERMS AND CONDITIONS

1. Definitions

Background IP means the Intellectual Property of a Party which was in existence prior to the provision of Consultancy Services or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claims means all demands, claims, proceedings, penalties, fines and liability, whether criminal or civil, in contract, tort or otherwise.
Company means the company, business or otherwise who engages the Consultant to provide Consultancy Services, its officers, employees, contractors, sub-contractors, agents, representatives, licensees, suppliers or assignees, whether individually or collectively.
Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the provision of Consultancy Services, which is not publicly available and relates to processes, equipment and techniques used by the Company in the course of the Company’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consultancy Services means the consultancy services to be provided by the Consultant to the Company.
Consultant means Craig Philpotts Consulting Pty Ltd (ACN 632 331 554) and its officers and employees.
Contract IP means Intellectual Property created by the Consultant while performing its Consultancy Services
Deliverable means any services to be supplied by the Consultant pursuant to this agreement.
Facilities means working space, access to the internet and the Company’s computer network, telecommunications system etc, and includes not only access to such resources but also use of them to the extent required by the Consultant in order to perform the Consultancy Services.
Fees means the hourly rates described at Item 1 of Schedule 1.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means the Consultant and the Company, and Party means either one of them.

  2. CONSULTANCY SERVICES

2.1 Consultancy services may include but are not limited to;

i. Assisting clients in understanding and executing deliverables in their contracts;
ii. Contract management;
iii. Managing contractors on site;
iv. Managing services provided by suppliers and contractors;
v. Making recommendations; and
vi. Liaising with the Company managers and employees.

2.2 The Consultant and the Company will agree on the time and place for the performance of the Consultancy Services.
2.3 The Consultant will use reasonable endeavours to complete the Consultancy Services by any dates agreed to by the Parties.

3. LOCATION

The Consultant will provide the Consultancy Services in places and locations as the Consultant considers appropriate to the type and nature of the requirements of the Company.
3.1 The site location (if any) is determined at Item 2 of Schedule 1.

  4. PAYMENT OF FEES

4.1 In consideration of the provision of the Consultancy Services, the Company will pay the Consultant the Fees.
4.2 Where the Consultant’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rata basis in increments of 15 minutes being rounded up to the nearest of.
4.3 The Company acknowledges that the Fees are exclusive of any GST that may be charged by the Consultant to the Company, and therefore, the Consultant will be entitled to add on GST.
4.4 Payment will be made by the Company to the Consultant within thirty (30) days after receiving the Consultant’s invoice.
4.5 The Consultant is entitled to vary the Fees by way of written notice to the Company of 14 days prior to the change being implemented.
4.6 If the Company does not make a payment by the date stated in an invoice or as otherwise agreed by the Parties, the Consultant is entitled to do any or all of the following:

i. charge interest on the outstanding amount at the rate of 10% per annum, accruing daily;
ii. require the Company to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
iii. not perform any further Consultancy Services (or any part of the Consultancy Services).

4.7 The obligations under this clause 4 survive termination or expiry of this agreement

  5. COMPANY’S OBLIGATIONS

5.1 During the performance of the Consultancy Services the Company will:

i. cooperate with the Consultant as the Consultant reasonably requires;
ii. provide the information and documentation that the Consultant reasonably requires;
iii. make available to the Consultant such Facilities as the Consultant reasonably requires; and
iv. ensure that the Company’s staff and agents cooperate with and assist the Consultant.

5.2 The Company will not charge for the Consultant’s use of the Facilities made available by the Company.
5.3 If the Company does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Consultant may be charged to the Company.
5.4 The Company’s obligation to make the payments provided for under this agreement and otherwise perform its obligations shall not be affected by any circumstances including, without limitation, any off-set, counterclaim or other right which the Company may have against the Consultant.
5.5 The obligations under this clause 5 survive termination or expiry of this agreement.

6. INTELLECTUAL PROPERTY

6.1 The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any Party any right, title or interest in or to any Intellectual Property in any Background IP.
6.2 The Company acknowledges that ownership of the Contract IP remains vested in the Consultant. The Consultant grants to the Company an exclusive, perpetual, fully paid-up, irrevocable, worldwide licence to use the Contract IP for the sole purpose of enabling the Company to derive full benefit from its acquisition of the Deliverables.

  7. CONFIDENTIALITY

7.1 A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
7.2 The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
7.3 At the termination or end of the Consultancy arrangement, or when earlier directed by the Discloser:

i. all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
ii. the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.

7.4 The Confidential Information does not include information which:

i. is generally available in the public domain otherwise than as a result of a breach of clause 7.1 by the Recipient; or
ii. was known by the Recipient prior to the Discloser disclosing the information to the Recipient.

7.5 The Recipient agrees that the Discloser may require any of the Recipient’s Personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s Personnel.
7.6 The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 7 by the Recipient.
7.7 The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 7 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 7.
7.8 The obligations accepted by the Recipient under this clause 7 survive termination or expiry of this agreement.

  8. WARRANTIES, LIABILITY AND INDEMNITIES

8.1 The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services.
8.2 The Consultant provides no warranty that any aim, result or objective can or will be achieved or attained at all or by any date, whether stated in an agreement, proposal or otherwise.
8.3 The Company warrants that it has not relied on any representation or statement of the Consultant in writing or otherwise, which is not contained within this Trading Terms and Conditions Agreement.
8.4 The Company indemnifies the Consultant, against any and all demands, claims, proceedings, penalties fines, responsibility, loss, damage and liability (whether criminal or civil, in contract, tort or otherwise) arising out of the performance of the Consultancy Services. The indemnity in this clause 8.3 is reduced to the extend caused or contributed to by the negligent act or omission of the Consultant.
8.5 Subject to clause 6, any liability of the Consultant under or in connection with the Consultancy Services, whether arising in contract, tort, negligence, breach of statutory duty or otherwise are limited in accordance with this clause 8.
8.6 Despite anything else contained in this agreement, the Company does not seek to exclude or limit liability where such exclusion or limitation is precluded by applicable law.
8.7 The Consultant will not be liable to the Company in contract, tort, negligence, breach of statutory duty nor otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Company of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
8.8 The cumulative liability of the Consultant in respect of all claims made in respect of or in connection with this agreement (including claims arising in contract, tort, breach of statutory duty or arising in any other way out of the subject matter of this agreement) will not exceed the Fees paid by the Company to the Consultant under this Agreement.
8.9 Each of the parties acknowledge, in entering this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
8.10 The obligations under this clause 8 survive termination or expiry of this agreement.

  9. TERMINATION

9.1 Either Party may terminate this agreement by providing 30 days’ notice in writing to the other Party.
9.2 Despite any other remedies a Party may have, either Party may terminate this agreement, at any time, by written notice if:

(a) a Party is in material breach of its obligations under this agreement; and
(b) the breach is capable of being remedied within 14 days; and
(c) the terminating party has provided notice to the breaching party of its intention to terminate and the specific details of the breach requesting its rectification with 14 days; and
(d) the breach is not remedied by the breaching party within 14 days of receiving the notice described in clause 9.2(b).

  10. ENTIRE AGREEMENT

10.1 This agreement contains the whole agreement between the parties in respect of the provision of the Consultancy Services.
10.2 The parties confirm they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.

  11. WAIVER

11.1 No failure or delay by the Consultant in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
11.2 The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

  12. INCONSISTENCY

12.1 To the extent of any inconsistency between this agreement and any proposal document, agreement or other instrument, this agreement will prevail to the extent of such inconsistency.

  13. FORCE MAJEURE:

13.1 The obligations of a Party under this agreement, other than the obligation to pay money, shall be suspended during the time and to the extent that the party is prevented from or delayed in complying with the obligations by force majeure and the parties shall not be liable for any failure to fulfil their obligations caused by force majeure.
13.2 Force majeure means a circumstance beyond the reasonable control of a Party which occurs without the fault or negligence of the Party affected and includes inevitable accident, storm, flood, fire, earthquake, explosion, peril or navigation, hostility, war (declared or undeclared), insurrection, executive or administrative order or act of either general or particular application of any government whether de jure or de facto or of any official purporting to act under the authority of that government prohibition or restriction by domestic or foreign laws, regulations or policies, quarantine or customs restrictions, breakdown or damage to or confiscation of property.

  14. VARIATION

14.1 The provisions of this agreement cannot be varied, except by agreement in writing signed by the parties.

  15. SEVERANCE

15.1 If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

  16. GOVERNING LAW

16.1 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.

  17. THE WORKING RELATIONSHIP:

17.1 This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this agreement.
17.2 Neither party will have, nor represent it has, any authority to make any commitments on the other party’s behalf.