Terms & Conditions, Confidentiality and Service Agreement
1. Definitions and Interpretation
1.1 In this agreement:
- Agreement means this document, the SLA Letter, including Schedule 1 and Schedule 2 to the SLA Letter;
- BAS Services means ‘BAS Service’ as that term is defined in the Tax Agent Services Act 2009 (Cth);
- Business day means any day of the week, Monday to Friday, excluding public holidays;
- Business Hours means ordinary business hours in the State of Queensland or such other State as the Consultant shall be located, from time to time;
- Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
- Client means the client as outlined in the SLA Letter together with any representatives of the Client such as agents, employees and Related Bodies Corporate;
- Commencement Date means the date as outlined in Schedule 2;
- Contractual Payments means the negotiated and agreed contracted payments payable to the Consultant and as set out in Schedule 2 and clause 6 of this document;
- Confidential Information means all information which is confidential to the Client, including trade secrets, information concerning the market within which the Client operates, technical information concerning the Client’s products or the materials used by the Client in its business, information about the Client’s financial performance, customer lists and customer information, information concerning the Client’s markets, business projections, business plans and business forecasts concerning the Client’s performance or likely future activity, and employees or consultants of the Client, and any other information which is confidential to the business affairs of the Client or its suppliers and clients, including all client and supplier records and information (whether produced by the Consultant or not), and which is not in the public domain and includes all Confidential Information of the Client’s Related Bodies Corporate;
- Consultant means RMF Enterprises Pty Ltd ATF the RMF Enterprises Trust & Mac Lean and Company Pty Ltd ATF The Fiona Mac Lean Family Trust, together with any representatives of the Consultant such as agents, employees and Related Bodies Corporate;
- CPI means the consumer price index (all groups) for Brisbane;
- Data Breach has the meaning as the term is defined in the Privacy Act 1988;
- Disbursements means the disbursements listed in Schedule 2;
- Fees means the Fees listed in Schedule 2;
- Guarantor means the person specified in Schedule 1;
- Parties means the parties to this Agreement;
- Period of Appointment means the period from the Commencement Date to the Termination Date;
- PPSA means the Personal Property Securities Act 2009 (Cth);
- PPSR means the Personal Property Securities Register;
- Related Bodies Corporate has the meaning given to it in the Corporations Act 2001;
- Security Interest has the meaning prescribed to it in section 12 of the PPSA;
- Security Agreement, Commingled Goods, Financing Statement, Financing Change Statement, Verification Statement, Collateral and Registration have the meanings prescribed to them in section 10 of the PPSA;
- Services means the Services listed in Schedule 1;
- Service Level Agreement (SLA) Letter mean the letter to which this document is attached;
- Software As A Service (SAAS) means any third party software purchased and or subscribed to by the Consultant on behalf of the Client;
- Termination Date means the date specified in Schedule 1 or as determined by clause 13.
1.2 In this Agreement, unless the contrary intention appears:
- terms defined in the A New Tax System (Goods and Services Tax) Act 1999 and the Competition and Consumer Act 2010 have the same meaning;
- the singular includes the plural and vice versa;
- a reference to a clause or schedule is a reference to a clause or schedule to this Agreement and a reference to this Agreement includes any schedules;
- a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
- a reference to $ is a reference to Australian currency; and
- a reference to writing includes typewriting, printing, photocopying and any other method of representing words, figures or symbols in a permanent visible form.
1.3 Headings are for ease of reference only and do not affect interpretation.
2. Third Party Applications
- 2.1 If included in the Services, the Consultant will provide advice, installation, training and support on a range of software including SAAS.
- 2.2 The Client acknowledges that the Consultant:
- is an independent provider separate from the makers of the software and SAAS providers and provides no assurances or warranties in relation to the software products or their performance; and
- is acting in the capacity of an agent for the Client only with respect to the SAAS.
- 2.3 The Client releases and indemnifies the Consultant with respect to any data breach that might occur as a consequence of use or failure of the SAAS.
3. Consultant’s Rights and Obligations
- 3.1 The Consultant will provide the Services to the Client for the Period of Appointment.
- 3.2 The Client acknowledges and agrees that the Consultant has exclusive rights under this Agreement. The Client does not have the right to appoint other Consultants to provide the same or similar services.
- 3.3 The Client acknowledges and agrees that the Services provided by the Consultant are strictly limited to the Services as set out in Schedule 1 and does not include accountancy or taxation advice/services except for advice and services that are BAS Services.
- 3.4 The Consultant will provide the Services from such place as is appropriate from time to time and are to be provided within Business Hours on the Business Days, as well as such other hours outside of Business hours that may be necessary to perform the Services from time to time.
- 3.5 The Consultant is free to communicate with the Client’s business partners and/or other third parties at will in order to fulfil the Consultants obligations under this Agreement.
- 3.6 The Consultant may use an employee, contractor or agent of the Consultant’s to perform the Services.
4. Client’s Obligations
- 4.1 The Client is wholly responsible for the timely provision of information, instructions, and records to the Consultant, and the accuracy and completeness of the records, information and instructions provided to the Consultant, and understands the Consultant shall perform the Services based on the information, records and instructions given to it by the Client.
- 4.2 The Client shall indemnify the Consultant in all respects, for any and all liability, loss and consequences which arise out of any acts, errors or omissions howsoever arising or occurring which are a result of the information, instructions and records given to the Consultant by the Client used in the provision of the Services by the Consultant.
- 4.3 The Client is responsible for the Client’s internal controls and the Client acknowledges the Consultant is not engaged to conduct a statutory audit of any of the Client’s financial records, or to provide an auditors opinion or otherwise as to the truth and fairness of the Client’s financial statements and position.
- 4.4 The Client must provide to the Consultant such materials, equipment and anything reasonably required by the Consultant to perform the Services for the Client.
- 4.5 The Client shall not do or omit to do any act which would prevent the Consultant from performing the Services or otherwise fulfilling their obligations under this Agreement, including without limitation the use of a third party application or internet based client services system, as may be required by the Consultant to provide the Services.
- 4.6 The Client assumes all responsibility for any loss or damage suffered by the client whatsoever arising out of the use of any software or hardware (Malfunction) including, but not limited to, user input or operation error negligence, viruses howsoever contracted, server fault, electrical malfunction or power surges, software malfunction or failure and the security of information and data stored or used by third party applications and systems, and shall hold the Consultant completely harmless of any loss the Client suffers as a direct or indirect result of the Malfunction, unless such loss or damage was caused by a negligent act or omission of the Consultant.
- 4.7 The Client assumes all responsibility for any action to be taken required under the Privacy Act 1988 with respect to a notifiable Data Breach.
- 5.1 Nothing in this agreement constitutes the relationship of employer and employee or that of partner or agent between the Consultant and the Client. It is the express intention of the Parties that any such relationships are denied.
- 6.1 The Client must pay the Fees to the Consultant as specified in Schedule 2 or upon receipt of a tax invoice from the Consultant.
- 6.2 If this Agreement is terminated, the Client shall pay to the Consultant the amount outstanding as calculated in accordance with this Agreement up to the date of termination.
- 6.3 If GST is applicable in respect of Fees, the Client will pay the Consultant an additional amount equal to the GST paid or payable by the Consultant upon receipt of a valid Tax Invoice stating the amount of GST paid or payable by the Consultant on that payment as calculated in accordance with the applicable GST law.
- 6.4 The Client will reimburse the Consultant for any reasonable Disbursements. Any other costs related to providing the Services are to be paid by the Consultant.
- 6.5 If the Client does not make payment to the Consultant in accordance with the terms of this Agreement, the Consultant reserves the right to suspend its performance of the Services until such time as the amount in arrears has been paid in full to the Consultant. The Client is responsible for any and all loss, costs or liability arising as a result of the Consultant’s suspension of the Services as a result of the Client’s failure to pay.
- 6.6 The Client agrees that should an amount be outstanding to the Consultant for more than 14 days from the date it is due, in addition to the Consultant’s right to suspend performing the Services in accordance with clause 6.5 above, the outstanding amount shall become a debt due and owing to the Consultant, and interest shall be payable thereon at a default interest rate of 10% per annum.
- 6.7 The Client will be liable to pay all costs, including the Consultant’s legal costs, incurred by the Consultant to recover the debt owing to it under this agreement.
- 6.8 Subject to clause 6.9, the Client and Consultant will review the Fees annually where the Consultant continues to provide the Services.
- 6.9 The Fees shall be reviewed annually for each next period of twelve (12) months during the Period of Appointment and the reviewed Fees shall be the sum calculated at the commencement of each annual period in accordance with the following formula:
A x (C1/C2)
- A = The remuneration payable during the twelve (12) months immediately preceding the review date;
- C1 = The CPI number last published before the review date; and
- C2 = The CPI number last published twelve (12) months before the review date.
- 6.10 If it becomes impossible to determine the Fees at any time during the Period of Appointment by reason of any change in any of the methods used to compute the index number or if any dispute shall arise between the parties with respect to the amount of additional fees or with respect to the construction or effect of the provisions of this clause, the determination of the additional fees or other matter in dispute shall be made by the President for the time being of the Queensland Law Society or a person nominated by the President.
7. Mutual Confidentiality
- 7.1 Each party must keep the other party’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
- 7.2 The Consultant and the Client acknowledge that information resulting from the provision of the Services pursuant to this Agreement shall also be regarded as Confidential Information.
- 7.3 The obligations of the parties with regard to the Confidential Information will continue for so long as this information is maintained on a confidential basis.
- 7.4 At the termination of this Agreement, or when earlier directed by a party to this agreement:
- all Confidential Information must be returned to that party, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the party makes; and
- unless required to be retained by law or regulation, the party receiving the Confidential Information must erase and destroy any copies of any software containing or comprising the Confidential Information in that parties’ possession or control or that may have been loaded onto a computer possessed or controlled by the party.
- 7.5 The Confidential Information does not include information which:
- is generally available in the public domain otherwise than as a result of a breach of this agreement; or
- was known by that party prior to the disclosing of the information to that party.
- 7.6 The Client agrees to indemnify the Consultant fully against all liabilities, costs and expenses which the Consultant may incur as a result of any breach of this clause by the Client. The Consultant agrees to indemnify the Client fully against all liabilities, costs and expenses which the Client may incur as a result of any breach of this clause by the Consultant.
- 7.7 Both parties acknowledge that damages may be an inadequate remedy for breach of this clause 7 and that either party may obtain injunctive relief against the other party for any breach of this clause 7.
- 7.8 The obligations accepted by the Client and the Consultant under this clause 7 survive termination or expiry of this Agreement.
8. Retention of Documents
- 8.1 The Client retains ownership in all financial statements or other documents that the Consultant is specifically engaged to prepare, together with all original documents provided by the Client.
- 8.2 The Consultant retains legal ownership of any other document brought into existence by the Consultant, including but not limited to, general working papers and draft documents.
- 8.3 If this Agreement is terminated for any reason, the Consultant may exercise a lien over any and all documents or any information held by the Consultant on behalf of the Client until full and final payment pursuant to this Agreement has been received by the Consultant.
- 9.1 The Privacy Act 1988 (Cth) (as amended) (“Privacy Act”) regulates the way in which personal information is handled. The Consultant is committed to the principles of the Privacy Act.
- 9.2 The Consultant only collects personal information for the purpose of providing its Services to the Client. If the requested information is not provided, the Consultant will not be able to provide its services to the Client as relates to that Client. The Consultant reserves the right to disclose any personal information about the Client or its use of the Consultant’s Services without the Client’s prior permission if the Consultant has a good faith belief that such action is necessary to:
- conform to legal requirements or comply with legal process;
- protect and defend the rights or property of the Consultant; or
10. Security Interest
- 10.1 The Client consents to the Consultant doing all things necessary to enable the Consultant to register any security interest it may have in equipment, materials, and/or data on the Personal Properties Securities Register and to comply with all requirements of the Personal Properties Securities Act 2009 (Cth).
- 10.2 This Agreement constitutes a Security Agreement which creates a Security Interest in favour of the Consultant.
- 10.3 The Client agrees and undertakes to:
- sign any further documents and/or provide any further information (which information the Client warrants to be complete, accurate and up to date in all respects) which the Consultant may reasonably require to enable perfection of its Security Interest or registration of a financing statement or financing change statement on the PPSR;
- not to register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA;
- give the Consultant not less than 14 days’ written notice of any proposed change in its details (including but not limited to, changes in address, facsimile number, email address, trading name or business practice);
- pay all costs incurred by the Consultant in the registration and maintenance of its Financing Statement to enable Registration of its Security Interest (including registering a Financing Change Statement) on the PPSR such costs shall not exceed the regulated cost for registering or maintaining (updating) a Security Interest, as amended from time to time, together with an administrative charge of $10.00 per Registration and/or amendment to, a Security Interest, as a genuine pre-estimate of the Consultant’s costs, and/or enforcing or attempting to enforce the Security Interest created by this Agreement including but not limited to executing subordination agreements;
- be responsible for the full costs incurred by the Consultant (including actual legal fees and disbursements on a solicitor and Consultant basis) in obtaining an order pursuant to section 182 of the PPSA;
- pursuant to section 157 of the PPSA, unless otherwise agreed in writing by the Consultant, the Client agrees to waive the right to receive the Verification Statement in respect of any Financing Statement or Financing interest statement relating to the Security Interest; and
- indemnify the Consultant from any cost reasonably incurred by the Consultant in amending or withdrawing any Security Interest registered by the Consultant, even if the registration has occurred through error or mistake on behalf of Consultant.
- 11.1 The Consultant will have such authority as is delegated to it from time to time by the Client, having regard to the Services to be provided by the Consultant pursuant to this Agreement.
12. Termination of agreement
- 12.1 Either Party may terminate this agreement by notice in writing to the other if the Party notified fails to observe any term of this agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days’ notice of the breach being given in writing by the notifying Party to the other Party.
- 12.2 Notwithstanding anything in this agreement to the contrary, the Consultant may terminate this agreement at any time by notice in writing to the Client, if the Client is guilty of any dishonesty, serious misconduct or serious neglect of duty, in or in connection with the provision of the Services.
- 12.3 Either Party may terminate this agreement upon the happening of any of the following events:
- if either party enters into a deed of arrangement or an order is made for it to be wound up;
- if an administrator, receiver or receiver/manager or a liquidator is appointed to either party pursuant to the Corporations Act 2001 (Cth); or
- if either party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
- 12.4 Upon termination of this agreement for any reason:
- the Client must deliver, and require that its employees, agents and subcontractors deliver, to the Consultant all Materials and any other property of the Consultant which are in the possession or control of the Client employees, agents or subcontractors at the date of termination;
- the Client must pay the Consultant any amount due and payable under this Agreement;
- subject to clause 8.3, the Consultant shall return all property, including Confidential Information, records, files, notebooks, correspondence, other documents (in machine readable form or otherwise), keys, or other property of the Client in the possession of the Consultant or any employee, agent or subcontractor of the Consultant which belongs to the Client or which relates to the business of the Client;
- 12.5 Regardless of the reason for termination, such termination will not affect any accrued rights or liabilities of either party nor will it affect the coming into force of any provision of this Agreement which is expressly or by implication intended to come into force or continue on after the termination.
- 13.1 The Client warrants that:
- the Client is not in breach of an obligation owed to, or infringe the right of, any person, including but not limited to a former employer, principal contractor or a client of a former employer or principal contractor;
- the Client is not currently involved in any legal dispute with a third party, whether it be relevant to the Services provided by the Consultant or not;
- the Client is not a party to any agreement, written or oral, that conflicts with this Agreement;
- the Client is profitable and is able to pay the Fees as and when they fall due; and
- the Client is not participating in or conducting any illegal or unlawful activity whatsoever, whether it be relevant to the Services provided by the Consultant or not.
- 14.1 The Client hereby indemnifies the Consultant against all claims, demands, liabilities, suits, costs, loss, damage and expense whatsoever that the Consultant may suffer or potentially suffer arising out of any negligence, fraud, incompetence, misrepresentation, unlawful activity or carelessness (including the provision of inaccurate or incomplete information or instructions) on the part of the Client.
15. Conflict of Interest
- 15.1 The Consultant will not allow a situation to arise which places the Consultant in a situation of conflict of interest or duty or potential conflict of interest or duty. If a situation arises whereby the Consultant believes they have, or have the potential to have, a conflict of interest or duty, the Consultant will immediately advise the Client of the situation and will take all reasonable steps to avoid the conflict or potential conflict, and will follow reasonable directions of the Client in that regard.
- 16.1 Part or all of any clause of this Agreement that is illegal or unenforceable will be severed from the Agreement and the remaining provisions of the Agreement continue in force.
- 17.1 The failure of either party at any time to insist on performance of any provision of this Agreement or to fail to exercise a right under this Agreement is not a waiver of its right at any later time to insist on performance of that or any other right under this Agreement.
- 18.1 This Agreement is not assignable by either party without the prior consent of the other party.
- 19.1 A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee, or sent by email to the email address of the addressee.
20. Governing law
- 20.1 This Agreement is governed by the laws of the State of Queensland and the parties submit to the jurisdiction of the Courts of that State.
21. Entire Agreement
- 21.1 This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior understandings or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party in connection with that subject matter.
- 22.1 This Agreement may only be altered or varied in writing signed by the parties.
- 23.1 The terms of this Agreement are confidential and may not, without the written approval of the Client, be disclosed by the Consultant to any other person other than for the purpose of obtaining professional legal or accounting advice or as required by law.
24. Dispute Resolution
- 24.1 If the parties are in dispute, either party may give the other party a written notice of dispute, and the parties must within 21 days refer the dispute to an independent mediator nominated by the president of the Queensland Law Society. The parties must equally share the costs of the mediation. Neither party may commence court proceedings (except for urgent interlocutory applications) unless the dispute remains unresolved more than 28 days after the date of the notice of dispute.
- 25.1 The Guarantor hereby guarantees to the Consultant the payment of any monies payable by the Client pursuant to this Agreement and the due and faithful performance by the Client of each and every covenant on its part contained herein and the Guarantor agrees to pay to the Consultant upon demand all money payable pursuant to this Agreement in respect of which the Client shall have made default and the Guarantor hereby indemnifies and agrees to keep the Consultant indemnified against any loss or expense whatsoever and howsoever arising in connection with any default by the Client in so performing the covenants on its part to be performed pursuant to this Agreement and will upon demand being made by the Consultant make good immediately any such default or defaults by the Client and the Guarantor hereby covenants that he will do all things necessary or convenient and use his best endeavours to ensure that the Client performs all the covenants on its part to be performed pursuant to this Agreement.
- 25.2 The guarantee provided for in this Agreement shall be a continuing guarantee and shall not be revocable by the Guarantor and shall not be limited by any time or times mentioned in this Agreement but shall continue to have full force and effect so long as any monies are due by the Client pursuant to this Agreement and the guarantee and indemnity provided for in this Agreement shall continue to have full force and effect notwithstanding the termination of this Agreement or any other event whatsoever.