THIS SERVICES AGREEMENT (hereinafter referred to as the “Agreement”) is hereby made and entered as of the Commencement Date by and between Three Steps Business Pty Ltd (hereinafter referred to as the “Company”), of Level 1 / 50 Yeo Street, Neutral Bay , NSW, 2089 and The Client (hereinafter referred to as the “Client”)
WHEREAS, Client desires to engage the services of Company for the purposes of providing consulting and systems implementation services; and subject to the terms and conditions contained herein, Company desires to accept said engagement.
1.1 These Standard Terms and Conditions of Business (“Conditions”) are to be read in conjunction with and form an attachment to Three Steps Business Pty Lty (“The Company”) proposal or agreement (“Proposal”) for provision of consulting services (“Services”). On acceptance of the Proposal, the Client (“Client”) becomes bound by the Conditions set out below with respect to the Proposal.
2. RESPONSIBILITIES AND OBLIGATIONS OF The Company The Company shall:
2.1 use its best efforts to complete the Services in accordance with the Proposal as far as it is in The Company’s control to do so;
2.2 exercise the degree of skill, care and diligence normally exercised by members of the relevant profession performing services of a similar nature and in accordance with the code of ethics of the institution body which governs the profession;
2.3 remain fully responsible for all Services provided by The Company irrespective of any review or acceptance of those Services by the Client;
2.4 produce any reports and/or recommendations pursuant to this Agreement for the sole use of the Client and The Company undertakes no duty to nor accepts any responsibility to any third party who may rely upon such report or recommendation.
3. RESPONSIBILITIES AND OBLIGATIONS OF THE CLIENT
The Client shall:
3.1 give to The Company in writing timely directions, instructions, decisions and information sufficient to define the Services required, or any variation thereof, and facilitate the provision of the Services by The Company. This shall include obtaining all approvals, authorities, licences and permits by the Client which are required from governmental, municipal or other responsible authorities for the lawful implementation and completion of the Services unless otherwise specifically included in the Services;
3.2 as soon as practicable or within time frames nominated by The Company, answer queries made by The Company relating to the Clients’ requirements in connection with the Proposal and provide The Company with all such information which is reasonably necessary to enable The Company to comply with its obligations;
3.3 not interfere with The Company’s performance of the Services;
3.4 as soon as practicable make arrangements to enable The Company to enter upon any relevant site and associated lands as necessary to enable the performance of all the Services;
3.5 if the Client becomes aware of any matter which may change the scope or program of the Services, promptly give written notice to The Company.
4. CHARGES AND PAYMENT
4.1 An estimate of the charges may be presented to the client, though this doesn’t represent a scope of works and is simply an estimate.
4.2 Unless otherwise stated in a separate proposal document, these terms and conditions shall not be construed as an offer to perform the Assignment within a fixed time or at a fixed price.
4.3 The Company charges are calculated internally based on a credit points system considering the complexity of the task at hand and the rate for the consultant time plus materials and disbursements.
4.4 The Company may agree to perform certain work for a fixed price in accordance with an agreed specification. In this case, the specification is binding and additional or previously unspecified work will be added to the Client’s account. A commitment fee of 10% of the value of one-month fee is required prior to commencement, with monthly payments as agreed on this proposal.
4.5 No charge shall be made for travelling time by the consultant unless it exceeds by a material amount the staff member’s normal travelling time between home and The Company’s office. Expenses directly associated with the Assignment, including interstate travel, meals and accommodation (acceptable to The Company) for The Company staff, materials and equipment costs and appropriate costs for the administrative assistance may be payable by the Client. Should the need arise during the Assignment for ancillary services not specified in the service, their provision shall be subject to an agreement before expenditure is incurred.
4.6 All expenses shall be accounted for and paid for on a basis of 10% margin above cost.
4.7 All charges shall be exclusive of GST and other government taxes and levies, which are properly due whether they are imposed or brought into effect before or after the Client has accepted the Proposal.
4.8 In consideration of the Services performed by Company hereunder,
Client shall pay Company a monthly fee in the amount according to the service level requested upon (“Monthly Fee”). This Fee is payable on the every 30 days or otherwise stated. Payments shall be paid by the Client by debiting the Clients’ bank account or credit card on the due date via the direct debit facility provided by The Company.
4.9 If payment is not made by the due date The Company shall be entitled (without prejudice to any other right or remedy available to it) to charge interest on the outstanding amount at a rate of 1.5% per month.
4.10 Failure to comply with payment in accordance with the Conditions may invalidate any warranty by The Company.
4.11 If the service links payment to milestones or project stages, The Company shall be entitled to payment on completion of each milestone or stage and shall further be entitled to payment if failure to complete the milestone or stage by the due date has been due to delays or problems by the Client or a third party outside The Company’s control.
4.12 In the event that any part of any invoice is disputed, the amount not under question shall be paid promptly in accordance with the appropriate payment terms and notification of the grounds for dispute provided in writing to The Company within seven days.
4.13 The Company reserves the right to adjust the charge rates for all packages from 1 July each year, after providing written notice to the Client of the adjusted rates. Any decision not to apply such rate adjustments is at The Company’s sole discretion unless otherwise noted in the Proposal.
4.14 The Company will endeavor to meet agreed deadlines however these are not guaranteed and are estimates only. No penalties or reduction in payment to The Company will be applicable unless specifically agreed in writing.
5. ASSIGNMENT AND ENGAGEMENT OF SUBCONTRACTORS
5.1 Neither the Client nor The Company may assign its interest in this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld.
5.2 The Company may engage any other party or person it may determine to be suitably capable and qualified as sub-contractors to undertake the Services.
5.3 Any such assignment or subcontracting shall not release or discharge the assignor from any obligations under the Agreement.
6. OWNERSHIP OF INTELLECTUAL PROPERTY
6.1 Any copyright or other intellectual property rights, software, products or goods or devices developed or any documentation prepared for the Client by The Company in the course of performing the Assignment shall become the absolute property of the Client when full payment for services has been received unless otherwise stated in the Proposal or agreed in writing.
6.2 Where The Company uses its own intellectual property to complete the work, this background intellectual property remains the property of The Company, and a non-exclusive licence is provided to the Client for the purpose of this Proposal.
7. ALTERATIONS TO SCOPE & SPECIFICATIONS
7.1 If the Client wishes to alter the scope or specifications developed and agreed pursuant to the Proposal, the Client shall make a written request to The Company for such alteration or amendment to be made and the alteration and amendment shall not form part of the agreement and Assignment until agreed to in writing by both parties.
7.2 The Client shall be responsible for all extra charges and time incurred by The Company as a result of the change to the specifications where the level of service is unable to accommodate it.
7.2.1 If The Company becomes aware of circumstances which differ from those disclosed by the Client prior to acceptance of the proposal or those set out in the Proposal (“unforeseen circumstances”) The Company must promptly notify the Client and cease performance of the Proposal.
7.2.2 If the effect of the unforeseen circumstances is to increase the cost of performance of the Proposal, then The Company is to ask for a variation.
7.2.3 If the Client does not agree to the variation within seven days, The Company may either suspend the performance of the Proposal or terminate the Proposal.
8. ACCESS AND SERVICES
8.1 The Client must ensure that The Company’s employees are given such systems, facilities, services and accessories as The Company requires enabling The Company to comply with its obligations under the Proposal and these Conditions.
8.2 The Client shall be responsible to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the health and safety of The Company staff working or visiting the Client’s premises.
8.3 Where additional hours or expenses are incurred by The Company in gaining site access due to conditions imposed by the Client outside those agreed in the Proposal, including but not limited to: additional inductions; travel expenses that can’t be cancelled without expense; changes in availability of site equipment, personnel or testing conditions; changes in other site conditions necessary for the completion of the work described in the Proposal; The Company will notify the Client in writing of the additional costs, and the Client will be liable for the additional hours and expenses as additions to the Proposal.
9.1 The Client shall keep The Company indemnified against all costs, claims, demands, expenses and liabilities of any nature whatsoever, including without limiting the generality of the foregoing, claims for death, personal injury, damage to property and the consequence of loss, (including loss of profits) which may be made against the company or which the company may sustain, pay or incur as a result of or in connection with the assignment unless such cost, claim, demand, expense or liability, shall be directly and solely attributed to the negligence of The Company or it’s agents.
9.2 Client represents and warrants that: (i) Client is under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement; (ii) Client has unencumbered right and power to enter into this Agreement; (iii) Client will not provide Company with any materials that are defamatory of any person or entity, indecent or obscene, or constitute a statement that is misleading or deceptive or likely to mislead, or infringes any copyright, trademark or other intellectual or commercial property rights of any person.
10. SUSPENSION AND TERMINATION OF THE AGREEMENT
10.1 Suspension and Recommencement
10.1.1 Either party may, at any time by written notice to the other party, suspend the provision of all or any part of the Services, if the other party is in breach of this Agreement.
10.1.2 The Company shall be paid all reasonable fees, extra costs and expenses, due to any suspension or recommencement.
10.2.1 This Agreement may be terminated at any time with 30 Days notice by either party any time within the minimum period of 3 months if the other party is in breach of the Agreement and if the other party fails to rectify the breach within seven days of receipt of notice in writing from the first party. After the minimum period of 3 months of the acceptance of this agreement, this Agreement may be terminated at any time with 30 Days notice by either party any time for any reason. The Company shall be liable to continue work during that notice period, with the main purpose being to conclude and handover work to the client.
0.2.2 The Company has the right to terminate this Agreement if The Company is advised in writing to provide Services that, in its opinion, will reduce either the functionality or durability of the proposed works to standards less than normally accepted in similar works. Termination under the above circumstances will not constitute breach or default by The Company and the Client accepts it has no claim against The Company for any consequential costs or damages arising from such termination of this Agreement.
10.2.3 The Company may terminate this Agreement if the Customer is in breach of these Terms and:
(A) That breach is not capable of remedy;
(B) The breach is material, wilul, reckless or repetitious;
(C) The breach compromises the Intellectual Property Rights of the Company; and/or
(D) The breach can be remedied but is not remedied within 10 Business Days of being given notice of that breach by the Company.
10.2.4 Termination shall be without prejudice to any claim either party may have against the other party arising from any breach of the Agreement or any act, default or omission (including negligence) prior to the date of termination.
10.2.5 Upon termination, and fee payment pursuant to this Clause, The Company shall deliver to the Client a copy of all documents produced by The Company up to the date of termination. The notice period will be used to complete the documents and handover so the client has the ability to use it to perform the related task. This considered, without any liability in respect of any incomplete documents.
10.2.6 If this Agreement is terminated for any reason the Client shall pay to The Company a fair and reasonable fee for the Services provided in accordance with the Agreement up to and including the date of termination together with reimbursement for any costs and expenses reasonably incurred by The Company in contemplation of its providing the Services. Where the Proposal is for a fixed price, The Company will be reimbursed on fees plus expenses basis for work completed up to the termination, up to a value of 1 months of service agreed on the agreed package provided this does not exceed the fixed price plus agreed variations.
11. DISPUTE RESOLUTION
11.1 If the parties fail to resolve a dispute within seven days of written notice from one of the parties detailing the dispute, each party shall, within a further seven days, nominate a senior representative to meet at a mutually convenient location.
11.2 If within the seven day period, or other mutually agreed period, the senior representatives are unable to resolve the dispute then the dispute shall be referred to a mediator agreed between the parties.
11.3 If the dispute is not resolved by mediation, the matter shall be referred to arbitration within 60 days of the date of mediation. The parties may be legally represented in any arbitration.
11.4 The cost of the mediation shall be shared equally between the parties
12.1 Neither party will solicit for the purposes of employment, employ, or engage the services of a past or current employee of either party, except where
12.1.1 the employee has been employed by neither party for at least six months, or
12.1.2 six months have passed after the termination of this Agreement, or
12.1.3 both parties agree in writing.
12.2 Nothing in the agreement for the provision of consultancy services the subject of the Proposal will prevent The Company from providing identical or similar services for persons other than the Client.
13.1 These Conditions in conjunction with the Proposal represent the entire agreement between the parties and all other representations, warranties, or promises whether verbal or written are hereby expressly excluded including any other agreements entered by the parties prior to this agreement.
13.2 These Conditions shall apply to the Proposal and shall prevail over any conflicting conditions presented by the Client, unless expressly acknowledged by The Company in writing.
13.3 Unless otherwise stated in the Proposal, as a specific change to these conditions, in the event of conflict between these Conditions and the Proposal then these Conditions shall prevail.
The contents of the Proposal, these Conditions and any information exchanged between the parties as a result of the Proposal and these conditions, shall remain confidential between the parties, but the duty of confidence shall not extend to disclosure of the placement of the contract itself and its nature, or to any information already known to the recipient prior to disclosure, or lawfully received by the recipient from a third party, nor to information published at the date of such disclosure or subsequently through no fault of the recipient.
13.5 Neither party shall be in breach of these conditions if its breach is caused by an act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining raw materials, energy or supplies, labour disputes of whatever nature and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under the proposal and these conditions as a direct result of any such reasons that party must give immediate written notice to the other of such inability stating the reasons.
13.6 The Conditions and Proposal shall be governed by the Law of New South Wales and the parties agree to submit to the jurisdiction of the New South Wales Courts.
13.7 If any condition or part of any condition is held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provision of these terms and conditions and any related agreement will remain in full force and effect.