1. PURPOSE OF THIS AGREEMENT
1.1 The purpose of this document is to formalise agreement for Services to
be provided as listed in the Schedule.
1.2 You will be providing Confidential Information which is proprietary to
enable the Services to be provided which I agree to keep confidential.
1.3 I agree to perform the Services, within the agreed timeframes, with due
care and skill. Upon satisfactory completion of the Services, I will
receive payment for these Services in accordance with the terms of this
agreement and the Schedule.
1.4 Any intellectual property which may be developed, written or designed
during the performance of the Services will belong to and reside with the
Company. The Client will receive, upon full payment, an unconditional
lifetime license for the use of the intellectual property.
1.5 The terms of this agreement outline and govern our arrangement for
these Services as follows:
2. DEFINITIONS
2.1 Confidential Information' means any written or oral information that is
provided by You to Me (in whatever format or medium used, provided directly
or indirectly) that is not Excluded Information and that: (a) is about your
affairs, business or identity and is obtained by Me or from someone on my
behalf (as a result of my engagement for Services); (b) information You
identify to Me or make Me aware is considered to be confidential and
proprietary; (c) may include ideas, code, script, indicators or algorithms
or similar; (d) includes my ownership of the intellectual property; or (e)
is personal information for the purposes of the Privacy Act 1988 (Cth).
2.2 'Excluded Information' means information that I can establish:
(a) was already in the public domain when it was given to Me;
(b) becomes, after being given to Me, part of the public domain, except
through disclosure contrary to this agreement;
(c) was already in My possession when it was given to Me and had not been
acquired in some other way (directly or indirectly) from You; or
(d) was lawfully received from another person who had the unrestricted
legal right to disclose that information free from any obligation to keep
it confidential.
2.3 'Services' means the services described in the Schedule.
3. SERVICES
3.1 I agree to provide the Services described in the Schedule in accordance
with the terms of this agreement. I agree to provide these Services in a
professional manner and in accordance with generally accepted industry
practice and standards. Further, I represent and warrant I have the
professional skills, expertise and tools to be able to perform the Services
to a professional industry standard. I must perform the Services myself or
through my representatives who have the appropriate qualifications and
skills to perform the Services.
3.2 The Services must be provided within the date or dates listed in the
Schedule. If, an event occurs beyond my reasonable control which prevents
Me from completing the Services by the date(s) set out in the Schedule, I
agree to notify You in writing as soon as reasonably possible with the
reason for the delay and the estimated time for completion of the Services.
Provided that no material damage is suffered, a reasonable extension of
time may be provided to complete the Services. In any event, you may at any
time extend the date for completion of the Services.
3.3 From time to time or at any point, you may request or require a
variation ('Variation') to the Services in writing with a full description.
In the event I agree to perform such Variation, I will provide a quote and
timing estimate for the Variation and upon acceptance of the quote and
timing estimate,” the agreed Variation will form part of and be on the same
terms as the Services in this agreement.
4. DELAYS AND DISPUTES
4.1 If at any time any aspect of the Services are not reasonably acceptable
to You, the time delay referred to in the section above is unacceptable
(due to loss or damage that may be suffered), or we disagree on the
quality, substance, or we disagree for any reason on the Services, You will
notify Me of the reason, specifics and will give Me a reasonable amount of
time ('Grace Period') to respond or rectify the issue should I wish to do
so. If, after this Grace Period You are not satisfied with the results or
we agree to stop the Services, You can ask Me to stop work and You will pay
Me for my Services up to and including all agreed and finalised work. I
acknowledge and will enable procurement to ensure that You obtain and
retain proprietary ownership for all work that is paid for up until and
including this time.
4.2 In the event of any dispute on the work, quality or ownership, we both
agree to obtain an independent professional arbitrator/dispute resolution
specialist to make a determination on the dispute and each of us agrees to
pay our own costs.
5. RELATIONSHIP
5.1 Our relationship under this agreement is that of principal and
independent contractor. This agreement does not make either party a joint
venturer, partner, employee or agent of the other. No act or omission of
either party is to bind the other party except as expressly set out in this
agreement.
5.2 You are not responsible for withholding or remitting any payment for an
impost such as tax or superannuation in respect of Me or any of my
representatives.
6. TERM AND OWNERSHIP
6.1 This Agreement is up to and including the date of completion of the
last Phase (if any) specified in the Schedule unless otherwise terminated
prior in accordance with this agreement.
6.2 The confidentiality provisions of this agreement remain until the
Confidential Information becomes part of the public domain.
6.3 Final Works
6.3.1.Upon completion of the Services, and expressly conditioned upon full
payment of all fees and costs due, The Provider assigns to Client all of
The Provider’s Copyrights in and to the Final Works, including Trademarks,
and The Provider shall deliver to Client all Working Files related to the
Final Works.
6.3.2.The Provider shall cooperate with Client and shall execute any
additional documents reasonably requested by Client to evidence such
assignment, and Client shall reimburse The Provider for The Provider’s
reasonable time and out-of-pocket expenses in connection therewith.
6.3.3.Client represents, warrants and covenants to The Provider that
6.3.3.1. Client owns all right, title, and interest in, or otherwise has
full right and authority to permit the use of the Client Content
6.3.3.2. To the best of Client’s knowledge, the Client Content is accurate,
legal, conforms to ethical standards of the Client’s industry, does not
infringe the rights of any third party, and use of the Client Content as
well as any Trademarks in connection with the Project does not and will not
violate the rights of any third parties
6.3.3.3. Client shall comply with the terms and conditions of any licensing
agreements which govern the use of Third Party Materials, and
6.3.3.4. Client shall comply with all laws and regulations as they relate
to the Services and Final Works.
6.3.4.Client Content, including pre-existing Trademarks, shall remain the
sole property of Client or its respective suppliers, and Client or its
suppliers shall be the sole owner of all trademark, trade secrets, patents,
Copyrights, and other rights in connection therewith.
6.3.5.Client hereby grants to The Provider a non-exclusive,
non-transferable license to use, reproduce, modify, display and publish the
Client Content solely in connection with The Provider’s performance of the
Services and promotional uses of Final Works as authorized in this
Agreement
6.4 Client shall have sole responsibility for ensuring that Trademarks do
not infringe the rights of third parties, and Client shall indemnify, save
and hold harmless The Provider from any and all damages, liabilities,
costs, losses or expenses arising out of any claim, demand, or action by a
third party alleging trademark infringement, or arising out of Client’s
failure to obtain trademark clearance or permissions, for use of Trademarks
6.5 The Provider retains all proprietary rights, including property
ownership, intellectual property rights and Copyrights, in and to all
Preliminary Works and Working Files.
6.6 The Provider may incorporate certain Provider Tools into the Final
Works. The “Provider Tools” means all design tools developed or utilized by
The Provider in performing the Services, including without limitation:
pre-existing and newly developed software including source code, Web
authoring tools, type fonts, and application tools, together with any other
software, or other inventions whether or not patentable, and general
non-copyrightable concepts such as Website design, architecture, layout,
navigational and functional elements. In the event that the Provider Tools
are incorporated into any Final Works, The Provider grants Client a
royalty-free, perpetual, worldwide, non-exclusive license to use the
Provider Tools to the extent necessary to use the Final Works. The Provider
retains all other rights in The Provider Tools.
6.7 Client expressly agrees that The Provider retains the right to
reproduce, publish and display the Final Works and Preliminary Works, to
the extent they do not contain Client’s Confidential Information, in The
Provider’s portfolios and Websites, and in galleries, design periodicals
and other media or exhibits for the purposes of recognition of creative
excellence or professional advancement, and to be credited with authorship
of the Final Works in connection with such uses.
6.8 Either party, subject to the other’s reasonable approval, may describe
its role in relation to the Project, and, if applicable, the services
provided to the other party on its Website and in other professional
materials, and, if not expressly objected to, include a link to the other
party’s Website.
7. INFORMATION PROVIDED TO PERFORM THE SERVICES
7.1 I agree that I will keep confidential, not use directly or indirectly
and not disclose directly or indirectly this agreement and all information
relating to, arising under or acquired under or as a consequence of this
agreement, except: (a) as required by law or any regulatory authority or
stock exchange; (b) with your express written consent.
7.2 I will not at any time disclose or allow access by any person or third
party to any of the Confidential Information unless required to perform the
Services in which case, I will ensure they are under the same duty of
confidentiality as I am under this agreement;
7.3 I acknowledge that any information which is passed on to Me by You to
enable Me to provide the Services and that You confirm to me is to be
considered Confidential Information will be kept as Confidential
Information unless otherwise agreed.
7.4 I shall notify You immediately upon becoming aware of any unauthorised
disclosure, copying, use or loss of all or any part of the Confidential
Information.
7.5 I agree, upon completion of the Services or upon termination of this
agreement for any reason, to immediately return all materials (or if in
electronic form, erase or destroy and deliver evidence of such erasure or
destruction) all documents and other materials containing or referring to
Confidential Information which is in my possession, power or control and to
ensure any other person who has received this do the same.
8. PAYMENT AND DELIVERY
8.1 Payment will be made on satisfactory delivery of each Service detailed
in the Schedule within 15 days of receipt of my invoice (or as otherwise
agreed in writing between both You and I). Delivery of the Services must be
on time as agreed in the Schedule and must be done to Your reasonable
satisfaction for payment as agreed. In the event that we agree a later date
for delivery of any of the Phases of the Services, the payment date will
follow such delivery pursuant to an invoice provided by Me as below.
8.2 I will provide, on or before the date for payment, an invoice for each
Service at the end of each Phase, or at the end of the delivery of the
Services as agreed, inclusive of any and all GST as defined in the A New
Tax System (Goods and Services Tax) Act 1999 (Cth). You are not responsible
for the payment of GST to the tax office for the provision of my Services.
8.3 There is a $25 NSF (insufficient funds) fee for declined or returned
payments.
8.4 Payments not received by due date will result in work cessation.
Service Provider reserves the right to refuse completion or delivery of
work until past due balances are paid. Monthly late charge of $10.00 or
1.75%, whichever is greater, will be assessed on unpaid balances every
thirty (30) days.
8.5 All material or property belonging to Client, as well as work
performed, may be retained as security until all just claims against Client
are satisfied.
9. INSURANCE POLICIES
9.1 While this agreement is in force, I will ensure that I and all of my
representatives are covered by insurance policies to perform the Services
covered by this agreement and if required in the Schedule.
9.2 I will give You a copy of the insurance policies or certificates of
currency upon your reasonable written request.
10. TERMINATION
10.1 Either party to the agreement may terminate the agreement for whatever
reason by giving one (1) months’ written notice to the other party. All
outstanding payment due to Me must be paid upon termination of the
agreement.
11. BREACH
11.1 If either You or I breach any of the obligations of this agreement,
the person who has committed the breach will remedy or rectify the breach
promptly and either person may terminate this agreement by notice to the
other person in writing with prompt payment for the Services completed to
date.
11.2 Confidentiality survives and continues in the event of any dispute or
termination and, in any event, after the delivery of the Services.
12. INDEMNITY
12.1 Both persons agree to indemnify the other and keep the other person
indemnified against any and all actions, claims, proceedings or demands
which may be brought against them in respect of any loss, death, injury,
illness or damage (whether personal or property, but not including indirect
or consequential loss) which arises by reason of any breach of warranty,
default, act or omission or any negligence by the person responsible for
the breach or act ('Responsible Person'), or by any employee, agent or
subcontractor which the Responsible Person may employ.
13. COUNTERPARTS
13.1 This agreement may be executed in counterparts. For example, You may
sign one copy of this agreement and I may sign another copy of this
agreement and exchange signed original copies. Both agreements will be
valid original agreements for the purposes of any dispute, litigation or
similar action.
14. GOVERNING LAW
14.1 This agreement is governed by the laws from time to time in force in
the State or Territory specified in the Schedule and both You and I agree
to unconditionally submit to the nonexclusive jurisdiction of the Courts in
that State or Territory for determining any dispute concerning this
agreement.
15. NON-VARIATION
15.1 No addition to, variation, or agreed cancellation of this agreement,
this clause or any of the schedules hereto shall be of any force or effect
unless in writing and signed by or on behalf of the parties.
16. SEVERABILITY
16.1 If any provision in this agreement is found to be void or otherwise
unenforceable then it will be severed, and the rest of the agreement will
remain valid and enforceable.
16.2 If a court finds that any provision of this agreement is invalid or
unenforceable, but that by limiting such provision it would become valid
and enforceable, then such provision shall be deemed to be written,
construed and enforced as so limited.
17. ENTIRE AGREEMENT
This Agreement constitutes the sole and entire agreement between the
parties and supersedes all prior discussions, agreements, contracts and
understandings relating to the subject matter hereof.
SCHEDULE:
Description of Services to be Provided:
Ad-hoc virtual assistance
Completion Date(s):
Ongoing or as mutually determined for each individual project on a
case-to-case basis.
Governing Law
South Australia, Australia
18. TERMS OF SERVICES
18.1 OFFICE HOURS: Office hours are Monday through Thursday, 10:00 am to
17:00 pm. Sundays by appointment only. Holidays are by request only.
Requests must be submitted no less than 48 hours in advance and must be
agreed upon by both You & I. Additional payment may be required and if
so, must be paid in full at time of request.
18.2 COMMUNICATION: Email is the main source of communication between You
and I. I am available for phone calls ONLY during office hours. However,
the time of both parties must be respected, and calls lasting over 15
minutes will be billed to Client. Telephoned or video meetings must be
prescheduled no less than 24 hours prior. Cancellation requires a minimum
of 24 hours advance notice. Missed meetings or cancellations without
sufficient notice will be billed $25 to Client.
18.3 PROJECT COMPLETION: Basic office support receives 24 - 48 hour
attention Monday - Thursday. Each new or special project requires minimum
of three (3) days lead time. You will provide sufficient notice and allow
for reasonable time frames for project completions. Rush projects of 24
hours or less and projects requiring weekend or holiday work may be subject
to 25% surcharge for rush fees. I reserve the right to refuse any project
or service request.
18.4 RETAINERS: Monthly retainers provide ongoing support at a discounted
rate up to the number of hours set forth in this Agreement. Retainer fees
are required to be settled in full by the 15th of every month. Services
rendered beyond the retainer number of hours will be billed at the same
retainer rate (if available). Hours are billed to the nearest 15 minutes.
Payments rendered are considered fully earned and non-refundable however,
for ongoing clients, unused hours WILL NOT BE carried over into the next
month.
18.5 EXPENSES: Expenses incurred on Your behalf are NOT included in any
fees and will be billed to You. Reimbursable expenses may include, but not
limited to, office supplies (e.g., file folders, envelopes, removable
storage drives, etc.,), mileage, payments made to vendors, and shipping and
handling costs. There is a one-hour minimum for office calls. On-site
visits will be billed for meeting time, round trip travel time, and
mileage.
The terms and conditions of this Agreement may be modified or amended as
necessary only by written instrument signed by both parties.
By signing the Agreement, I indicate that I understand, agree to and accept
the terms and conditions as contained herein.
