SERVICE AGREEMENT

BACKGROUND

The Client has agreed to engage the Company to provide the Services to the Client, and the Company has agreed to provide the Services to the Client on the terms of this Agreement.

This Agreement is intended to be legally binding, and the parties agree to give effect to the arrangements contemplated by it.

1. ENGAGEMENT AS COMPANY

1.1 The Client engages the Company as a provider of the Services to the Client, and the Company accepts that engagement and agrees to provide the Services to the Client.

1.2 The Company’s engagement with the Client commences on the Start Date and continues until this Agreement is terminated in accordance with clause 10.

1.3 The Company is engaged as an independent contractor. Nothing in this Agreement creates any relationship of employment, agency, or partnership.

2. PRICING AND INVOICING

2.1 The fees payable by the Client to the Company for completion of the service are known as the Billing Fees.

2.2 The Company will issue invoices on a weekly, fortnightly, or monthly basis for Services provided, as agreed between the parties. All invoices are payable within 5 Business Days.

2.3 The Client will reimburse the Company’s reasonable and documented expenses incurred in providing the Services.

2.4 Late payments will incur interest at 2% above the Reserve Bank of Australia cash rate, compounding daily.

3. PAYMENT

3.1 Method of Payment

(a) The Client authorises the Company to debit the Client’s nominated bank account or credit card for the amount of each invoice issued by the Company in accordance with clause 2.2.
(b) The Client shall provide a valid Direct Debit Request Form or Credit Card Authorisation Form containing payment details.
(c) The Company will deduct the invoiced amount within 5 Business Days after issuing the relevant invoice (“the debit date”).

3.2 The Client must ensure sufficient funds or available credit for each payment. The Client indemnifies the Company against dishonour fees, failed transaction charges, or other costs incurred due to insufficient funds or declined transactions.

Unpaid Invoices

3.3 The Company may issue a stop work notice or commence recovery proceedings for any invoice amount that remains unpaid after the due date.

No Set-off or Deduction

3.4 All payments under this Agreement must be made in full without any set-off, counterclaim, or deduction, except as required by law.
3.5 If any deduction is required by law, the paying party must gross up the payment so that the receiving party receives the full amount as if no deduction had been required.

4. GST

4.1 Unless otherwise stated, the Fees do not include GST. In addition to the Fees, the Client must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for the provision of the Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fees. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Fees except where they are expressly included in the Fees.

4.2 When GST is payable by the Company in respect of a taxable supply made by the Company to the Client, the Client must pay the Company, in addition to the GST-exclusive Fees, the amount on account of GST shown in the tax invoice issued by the Company.

4.3 Terms in this clause 4 not otherwise defined in this agreement have the same meaning as in the GST Act.

5. CONFIDENTIALITY

5.1 A receiving party (Disclosee) must:
(a) Keep all Confidential Information confidential;
(b) Use it only to perform this Agreement;
(c) Not disclose it to any third party without prior written consent; and
(d) Ensure any permitted third-party recipients comply with these obligations.

5.2 The confidentiality obligations do not apply to information that:
(a) Is public knowledge (except through a breach of this Agreement);
(b) Was already known to the Disclosee;
(c) Is received from a third party legally entitled to disclose it;
(d) Must be disclosed by law or court order (after giving reasonable notice); or
(e) Is independently developed without use of the confidential information.

6. NON-DISPARAGEMENT

6.1 From the date of this Agreement, each party must not:
(a) Make any statement that could reasonably be considered critical, derogatory, or negative towards the other party or its personnel; or
(b) Cause or encourage any other person to make such statements, except as required by law or court order.

7. INTELLECTUAL PROPERTY

7.1 Ownership
The parties agree that all Relevant IP will be owned by, and vest in, the Client.

7.2 Assignment
The Company hereby assigns, transfers and conveys to the Client all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Client on and from creation.

7.3 Permitted Use
The Company may not use or reproduce any Relevant IP or any other Intellectual Property Rights of the Client or any of the Client’s customers, clients or suppliers without the Client’s prior written approval, except in the proper provision of the Services and performance of its duties under this agreement.

7.4 Moral Rights
The Company consents to the doing of any acts, or making of any omissions, by the Client or any of the Client's employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:
(a) not naming the Company as the author of a Work; or
(b) amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Company is not named as the author of the amended or modified Work,
whether those acts or omissions occur before, on or after the date of this agreement.

7.5 Marketing Rights
The Client grants the Company a worldwide, royalty-free, perpetual, irrevocable license to use the Client’s name, image and likeness in any and all media for advertising, promotional, marketing and publicity purposes to promote the Company’s services and the Client’s use of those services.

8. LIABILITY, INDEMNITY AND REMEDIES

8.1 Disclaimer of Warranties
To the maximum extent permitted by law and except as otherwise set out in this agreement, the Company and its Representatives expressly disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability and fitness for a particular purpose.

8.2 Limitation of Liability
The Company is not liable to the Client or any other person for any special, incidental, indirect (such as damages for loss of profits or revenues, business interruption or loss of data), punitive or consequential damages arising out of this Agreement, regardless of whether they were in the contemplation of the parties at the time of contracting or note.

8.3 Limitation of Liability – Remedies
Where the conditions, representations and warranties referred to in clause 10.1 cannot be disclaimed or excluded by law, then the aggregate liability of the Company and its Representatives in respect of any Claim for Losses that the Client and/or any of its Representatives may bring against the Company in respect of the Services is limited, at the Company’s election, to one or a combination of the following remedies (having regard to the Loss demonstrated by the Client in writing to the Company):
(a) re-supply of the Services;
(b) payment of the costs of re-supply of the Services by a third party up to a value equivalent to the Fees paid by the Client to the Company under this agreement in the three (3) invoices prior to the relevant Claim; or
(c) the refund of any amounts paid (either in full or part) by the Client up to a value equivalent to the Fees paid by the Client to the Company under this agreement in the three (3) invoices prior to the relevant Claim.

8.4 Force Majeure
Neither party is liable for any delay or failure to perform its obligations under this agreement due to events beyond its reasonable control, including acts of god, natural disasters, war, terrorism, pandemic, government action, strikes or power failure. The affected party must:
(a) notify the other party as soon as practical;
(b) take reasonable steps to minimise the impact; and
(c) resume performance as soon as possible.

9. DISPUTE RESOLUTION

9.1 If a dispute or disagreement arises under this Agreement (Dispute), the Client must not commence court proceedings unless it has first complied with this clause 9.

9.2 The Client must give written notice (Notice) specifying the nature and providing details of the Dispute.

9.3 Within 5 Business Days of service of a Notice, the parties must hold discussions in good faith to attempt to resolve the Dispute. If the Dispute is not resolved within 15 Business Days of service of the Notice, then the parties shall refer the Dispute to the appropriate senior officer of each party who has authority to resolve the dispute and who shall promptly meet and endeavour to resolve the Dispute. If the Dispute has not been resolved within 20 Business Days of the service of the Notice, then the parties shall refer the Dispute to mediation and if not resolved in that form, then either party may commence court proceedings.

10. TERMINATION

10.1 Termination with Notice
Either party may terminate this agreement immediately by giving notice to the other party in writing.

10.2 Should a party exercise their rights under clause 10 above, the Company will immediately cease all work in providing the Services and prepare a final invoice for Services completed up until that time which will be issued within five (5) business days of termination of the agreement.

10.3 Effect of Termination
Following termination of this agreement, the Client will not have any liability to make any further payments to the Company except that, the Client will remain liable to pay the Fees and expenses for those Services performed prior to the date on which such termination takes effect, subject always to receipt of an appropriate invoice from the Company under clause 2 and clause 3 will apply in respect thereof.

10.4 During Notice Period
In the event that the Company’s engagement under this agreement is terminated upon notice by either party the Client may, at its absolute discretion, require the Company to refrain from providing the Services during the relevant notice period.

10.5 Partially Completed Deliverables
Upon the cessation of the Company’s engagement under this agreement, subject to payment of all outstanding Fees and expenses by the Client in accordance with the terms of this agreement, the Company will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.

10.6 Legislation
If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:
(a) time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
(b) any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,

and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.

10.7 Accrued Rights
Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

10.8 Survival
The obligations of the parties under clause 5 (Confidentiality), clause 6 (Non-disparagement), clause 7 (Intellectual Property), clause 8 (Liability and remedies), and this clause 10 will survive the termination of this agreement.

11. SUBCONTRACTING

11.1 The Company may subcontract all or any part of this agreement without the prior written approval of the Client.

12. NOTICES

12.1 A Notice given to a party under this agreement must be:
(a) in writing in English;
(b) sent to the address, fax number or email address provided by the relevant party; and
(c) delivered by hand, courier, post, fax or email.

12.2 A notice is deemed to have been received:
(a) if delivered by hand or courier, at the time of delivery;
(b) if sent by post, 2 business days after posting (5 if international);
(c) if sent by fax, at transmission; or
(d) if sent by e-mail, 4 hours after sending,

unless received outside business hours (9:00 am to 5:30 pm on a Business Day), then at the next commencement of business hours.

13. GENERAL

13.1 Further Assurances
Each party must promptly do all things and sign all documents reasonably required to give effect to this agreement.

13.2 Indemnity
The Client will release and indemnify the Company from any and all liability resulting from a clawback from any Medicare, Department of Health, or Professional Services Review and any other similar third parties.

13.3 Costs
Each party will bear its own costs and expenses incurred in relation to the execution of this agreement.

13.4 Entire Agreement
This agreement is the complete agreement between the parties and replaces all agreements and understandings about its subject matter.

13.5 Severability
If any part of this agreement is invalid or unenforceable, that part will be severed and the remainder will continue in full force.

13.6 No Waiver
Any waiver of a right under this agreement must be in writing and signed by the party granting the waiver.

13.7 No failure, delay, relaxation, forbearance or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right in any subsequent matter or prejudice or restrict the rights of the party. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

13.8 Amendment
The Company may amend or vary this Agreement from time to time by providing written notice to the Client. Continued use of the Company’s Services after such notice will constitute the Client’s acceptance of the amended terms.

13.9 If the Client does not agree to any amendment, the Client must notify the Company in writing within 30 days of receiving notice of the change. In the absence of such notice, the amended terms will be deemed accepted and binding on the Client.

13.10 Assignment
A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.

13.11 Counterparts
This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.

13.12 Electronic Exchange
Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

13.13 If a party delivers an executed counterpart of this agreement under clause 13.11:
(a) it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
(b) in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.

13.14 Governing Law and Jurisdiction
This agreement and any disputes arising from it (including non-contractual) are governed by the laws of New South Wales, Australia.
The parties irrevocably submit to the jurisdiction of the courts of New South Wales, Australia to determine any disputes arising from this agreement.

14. Definitions and Interpretation

Definitions

Business Day
Means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

Claim
Means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise.

Confidential Information
Means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

• any information that is specifically designated by any of them as confidential;
  

• any information which, by its nature, may reasonably be regarded as confidential;
  

• any information relating to any:
  

• agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
  

• customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
  

• Intellectual Property Rights, of any of them; and
  

• any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;
  

• negotiations in relation to, and the terms of, this agreement,
  
  

whether that information is visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Company or any Related Entity of the Company including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.

Copyright Act
Means the Copyright Act 1968 (Cth).

Corporations Act
Means the Corporations Act 2001 (Cth).

Disclosee
Means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.

Discloser
Means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.

Governmental Agency
Means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

GST
Has the same meaning given to that expression in the GST Act.

GST Act
Means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

Insolvency Event
Means, in respect of a party any of the following events or any analogous event:

• where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
  

• where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
  

• a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
  

• the party is otherwise unable to pay its debts as and when they fall due.

Moral Rights
Has the same meaning as that term has in Part IX of the Copyright Act.

Notice
Means any notice or other communication by one party to the other party under the terms of this agreement including but not limited to any request, demand, consent, waiver or approval.

Related Entity
Has the meaning set out in the Corporations Act 2001 (Cth).

Relevant IP
Means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Company’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:
(a) using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
(b) in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Client under this agreement or otherwise;
(c) as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
(d) in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services;
but does not include any software, computer program, or specialised method developed in the course of providing the Services.

Representatives
Means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

Services
Means the services that the Company has agreed to provide to the Client under the terms of this agreement, as more particularly described in Schedule 1.

Start Date
Means the date of this agreement or such other date as the parties may agree in writing.

Tax or Taxation
Means:
(a) any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
(b) unless the context otherwise requires, any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty charge or other amount in respect of the above, and GST; and
(c) any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability, whether arising in contract, negligence, tort, equity, statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of Tax;

(b) interest and other amounts payable to third parties;

(c) legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and

(d) all amounts paid in settlement of any Claim.

Works
Means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.