Basic services agreement pro-supplier. Sample. This document is a precedent services agreement, drafted broadly in favour of the service supplier.

Transcription

1 Basic services agreement pro-supplier Description: Author: This document is a precedent services agreement, drafted broadly in favour of the service supplier. Brooke Pendlebury Principal Lawyer, Pendlebury Workplace Law A collection of authoritative precedents from your most trusted source is available on This precedent is also available via subscription to the LexisNexis product the Australian Encyclopaedia of Forms and Precedents. This document is provided to you pursuant to our Terms & Conditions available on the LexisNexis website. You agree to use the document and its contents in accordance with those terms for the limited purpose of research, giving professional advice to clients, assistance in drafting of agreements, submissions, reports and other like documents in the ordinary course of your business. You agree not to distribute, display, on-sell or transmit this document for any purpose except as permitted above. The document is prepared by the author and is not intended to and does not constitute legal advice whatsoever. Neither LexisNexis nor the author warrants that this document is fit for any specific purpose or is free of any, errors, omissions or defects. You should satisfy yourself that it is appropriate for your own intended use. Neither LexisNexis nor the author accept any liability, loss or damages resulting from or connected with the use of the document. 1

2 This precedent provides a general set of terms and conditions for the provision of consultancy-type services. The aim is to permit the consultant to provide either general or more specific services, but be relatively light in terms of detailed obligations (on either party). Basic services agreement pro-supplier THIS AGREEMENT dated [date] is made by and between: [insert Company name], ACN [insert ACN] of [insert address] (Company) and [insert name of individual Consultant or Company], ACN [insert ACN] of [insert address] (Consultant). RECITALS A. The Company wishes to receive [indicate generally the type of consultancy services that the Company wishes to receive] (Consultancy Services). B. The Consultant has the skills, background and experience in providing [specify area that the consultant operates in]. C. The Company wishes to engage an independent contractor to provide the Consultancy Services to the Company. D. The Consultant is willing to provide the Consultancy Services and the Company is willing to appoint the Consultant to provide the Consultancy Services, all in accordance with the provisions of this Agreement. TABLE OF CONTENTS 1. Definitions and interpretation Consultancy services Location Fee(s) Consultant s Personnel Company's obligations No partnership or employment relationship Use of subcontractors Disclosure and ownership of intellectual property Confidentiality Warranties, liability and indemnities Termination General... 8 SCHEDULE 1 [Specification]

3 OPERATIVE PROVISIONS 1. Definitions and interpretation 1.1 Definitions i In this Agreement unless the context indicates otherwise, the following words shall have the following meanings: Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); [Commencement Date means [insert date on which the consultant is to start performing the consultancy services];] [Completion Date means [insert date on which the consultant is to complete performing the consultancy services] [or such other date as the Parties may agree];] Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this Agreement, 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; Consultant's Personnel means any person(s) that the Consultant designates to perform the Services on the Consultant's behalf; Facilities means working space, computer equipment, access to the internet and the Company's computer network, telecommunications system etc, and shall include 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; Fee(s) means [specify amount or refer to an amount or rates set out in the Specification, a schedule to this Agreement, or another specific document (which should ideally be annexed as a schedule in any event)]; 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 shall mean either one of them; [Purpose means [set out definition or refer specifically to another location where the Purpose is defined, eg in the Specification];] Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001 (Cth); [Specification means the specific Consultancy Services to be provided by the Consultant under this Agreement [when such Consultancy Services will be provided, the length of time they will take to perform and the human and other resources and facilities which are to be supplied by the Consultant. The Specification is set out in Schedule 1 to this Agreement]; and] Termination Date means the earlier of: 1.2 Interpretation the date of termination of this Agreement by the Company or the Consultant; and the date of expiry of this Agreement. In this Agreement unless the context otherwise requires: words importing any gender include every gender; 2

4 (e) (f) (g) (h) words importing the singular number include the plural number and vice versa; words importing persons include firms, companies and corporations and vice versa; references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement; reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule; any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done; the headings to the clauses and schedules of this Agreement are not to affect the interpretation; any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and the word including (and related forms including includes ) shall be understood as meaning including without limitation. 2. Consultancy services (e) 3. Location The Consultant shall provide the Consultancy Services [for the Purpose / according to the Specification / as the Parties may agree from time to time] to the Company in consideration for the Company paying the Fee to the Consultant, subject to the provisions of this Agreement. The Consultant and the Company shall agree the time and place for the performance of the Consultancy Services [subject to the availability of the Consultant's staff and agents]. The Consultant shall use reasonable endeavours to complete the Consultancy Services [including the provision of data, materials or reports] by [the Completion Date / the dates specified in the Specification / the dates agreed by the Parties]. The Consultancy Services shall be performed by such employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services [as set out in the Specification / as agreed, from time to time by the [Consultant s Personnel / Parties / [insert name of particular consultant]]. [From the [Commencement Date / date of this Agreement] the Parties shall discuss and agree the [particular] Consultancy Services to be carried out by the Consultant. The Consultancy Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Consultancy Services, and the Fee(s) shall be set out in the Specification.] The Consultant shall provide the Consultancy Services in such places and locations [as the Consultant considers appropriate to the type and nature of the requirements of the Company / as set out in the Specification / as agreed by the Parties from time to time]. 4. Fee(s) In consideration of the provision of the Consultancy Services in accordance with this Agreement, the Company will pay the Consultant the Fee(s). [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-rated basis.] The Company acknowledges that the Fee(s) shall be 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. The Consultant shall provide the Company with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4, and payment shall be made by the Company to the Consultant within 7 days following receipt of the Consultant's invoice. 3

5 (e) (f) (g) (h) The invoice referred to in paragraph must include the following details before payment can be approved and forwarded: (iii) (iv) (v) date of Consultancy Services; name of individual provided by the Consultant; description of Consultancy Services provided; time allocated per task; and the ABN of the Consultant. The Consultant shall be entitled to vary the [daily / hourly] rates during the term of this Agreement. Before implementing any such new rates, the Consultant shall provide them to the Company. The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, photocopying, courier services, postage, [list other relevant types of costs and expenses]. If the Company does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Consultant shall be entitled to do any of the following: (iii) charge interest on the outstanding amount at the rate of [insert]% per year above the base lending rate of [name of bank], accruing daily; 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 not perform any further Consultancy Services (or any part of the Consultancy Services). When making a payment the Company shall quote relevant reference numbers and the invoice number. 5. Consultant s Personnel The Company may, at any time, if it has reasonable grounds which have been disclosed and discussed with the Consultant, by notice in writing to the Consultant, require the Consultant to cease to permit a particular person or persons employed by the Consultant or acting as agents of the Consultant to carry out the Consultancy Services. If the Company makes the requirement referred to in paragraph, the Consultant must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of the Company's business and provide the services of an alternative person or persons as may be reasonably acceptable to the Company. 6. Company's obligations During [the preparation of the Specification and] performance of the Consultancy Services the Company will: (iii) (iv) co-operate with the Consultant as the Consultant reasonably requires; provide the information and documentation that the Consultant reasonably requires; make available to the Consultant such Facilities as the Consultant reasonably requires; and ensure that the Company's staff and agents co-operate with and assist the Consultant. The Company will not charge for the Consultant's use of the Facilities made available by the Company. 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 4

6 costs and expenses which are reasonably incurred by the Consultant will be paid by the Company. 7. No partnership or employment relationship Nothing in this Agreement constitutes the relationship of employer and employee between the Company and the Consultant or between the Company and the Consultant's Personnel. It is the express intention of the parties that any such relationships are denied. 8. Use of subcontractors ii The Consultant is permitted to use other persons to provide some or all of the Consultancy Services. The Consultant shall be responsible for the work of any of the Consultant s subcontractors. Subject to paragraph, any work undertaken by any of the Consultant s subcontractors shall be undertaken to the same standard as [stated in this Agreement [and the Specification] / agreed by the Parties]. To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this Agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor s subcontract. 9. Disclosure and ownership of intellectual property (e) 10. Confidentiality The Consultant must communicate to the Company promptly and fully all discoveries, improvements and inventions made or conceived by the Consultant or the Consultant's Personnel (either solely or jointly with others) in the course of performing the Consultancy Services which are similar to the actual or anticipated business, work or investigations of the Company or which result from or are suggested by any work performed for the Company (Inventions). Any Inventions, whether or not they contain intellectual property rights capable of protection, shall be and remain the sole and exclusive property of the Company or its nominees. The Consultant acknowledges that the Company (or its associated entities or persons) owns all Intellectual Property created by the Consultant in connection with the Consultancy Services, that now exists or that later comes into existence. The Consultant agrees to indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach of this clause 9 by the Consultant or the Consultant's Personnel. The obligations accepted by the Consultant under this clause 9 survive termination or expiry of this Agreement. The Consultant must keep the Company's, and any Related Body Corporate of the Company s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality. The Company and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this Agreement shall also be regarded as Confidential Information and the Consultant agrees that the Consultant's obligations in paragraph extend to this category of information. The Consultant's obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by: the Company, in the case of Confidential Information pertaining to the Company's business; and the Company's client, in the case of Confidential Information pertaining to the business of any of the Company's clients. 5

7 (e) (f) (g) (h) At the Termination Date, or when earlier directed by the Company: all Confidential Information must be returned to the Company, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Consultant makes and any software that the Consultant creates based on the Confidential Information; and the Consultant must erase and destroy any copies of any software containing or comprising the Confidential Information in the Consultant's possession or under the Consultant's control or that may have been loaded onto a computer possessed or controlled by the Consultant. The Confidential Information does not include information which: is generally available in the public domain otherwise than as a result of a breach of paragraph by the Consultant; or was known by the Consultant prior to the Company disclosing the information to the Consultant. The Consultant agrees that the Company may require any of the Consultant's Personnel to sign a confidentiality agreement in a form that the Company approves, as a condition of the Company's acceptance of any of the Consultant's Personnel. The Consultant agrees to indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach of this clause 10 by the Consultant. The Consultant acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Company may obtain injunctive relief against the Consultant for any breach of this clause 10. The obligations accepted by the Consultant under this clause 10 survive termination or expiry of this Agreement. 11. Warranties, liability and indemnities (e) (f) The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services [to the standard generally accepted within the industry, sector or profession in which the Consultant operates for the type of Consultancy Services provided by the Consultant]. If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or [materially] in breach of this Agreement [including any part of the Specification], then, if requested by the Company, the Consultant will re-perform the relevant part of the Consultancy Services, subject to paragraphs (h) and below. The Company's request referred to in paragraph must be made within [6] months of [the Completion Date / the date the Consultant completed performing the Consultancy Services / termination of this Agreement]. The Consultant shall effect all insurance required to be effected by law including worker's compensation insurance as prescribed by law for the Consultant's Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence. The Consultant covenants that the Consultant shall be solely responsible for the payment to the Consultant's employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Consultant's employees or agents and to otherwise comply with legislation applicable to the Consultant's employees and agents. Throughout the continuance of this Agreement the Consultant shall comply at the Consultant's own cost and expense with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority so far as the same may affect or apply to the Consultant or to the Consultancy Services, and the Consultant shall indemnify the Company from and against all actions, costs, charges, claims and demands in respect thereof. 6

8 (g) (h) (j) (k) (l) (m) (n) The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by [a given completion date / the Completion Date] or any other date, whether stated in this Agreement [or the Specification] or elsewhere. Except in the case of death or personal injury caused by the Consultant's negligence, the liability of the Consultant under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the Company to the Consultant under this Agreement. The provisions of this paragraph (h) shall not apply to paragraphs (f) and (j). Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this paragraph shall not apply to paragraphs (f) and (j). The Company shall indemnify and hold harmless the Consultant from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Company by the Consultant, its employees or consultants, or supplied to the Consultant by the Company within or without the scope of this Agreement. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. The Consultant must supply the Company with evidence of the Consultant's ABN and must include this number on any statement provided to the Company. The Consultant acknowledges that if the Consultant fails to provide an ABN, then the Company is entitled to withhold any proportion of the payments to the Consultant as may be required under the relevant law for tax purposes. The Consultant warrants that the Consultant has no authority to engage the services of any person as an employee or agent of the Company. The Consultant warrants that the Consultant shall not incur any liability on behalf of the Company or in any way pledge or purport to pledge the Company's credit or accept any other or make any contract binding upon the Company without prior approval being given by the Company. (o) The obligations accepted by the Consultant and the Company under this clause 11 survive termination or expiry of this Agreement. 12. Termination Either Party may terminate this Agreement by notice in writing to the other if the other 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 [insert number, eg 7 days] days notice of the breach being given in writing by the notifying Party to the other Party. Either Party may terminate this Agreement upon the happening of any of the following events: (iii) (iv) the giving of at least [insert amount, say one] month's written notice by one Party to the other Party of the intention to terminate this Agreement; if the Company 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 the Company pursuant to the Corporations Act 2001 (Cth); or if the Company would be presumed to be insolvent by a court in any of the 7

9 13. General 13.1 Force majeure circumstances referred to in the Corporations Act 2001 (Cth). The Company may, at its discretion, pay to the Consultant the equivalent amount of the fees payable by the Company to the Consultant during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph. Upon termination of this Agreement any fees, expenses or reimbursements payable by the Company to the Consultant in respect of any period prior to the Termination Date must be paid by the Company within [insert amount, eg 7] days after the Termination Date. Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party Amendments This Agreement may only be amended in writing signed by duly authorised representatives of the Parties Assignment Subject to paragraph, neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement Entire agreement 13.5 Waiver This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. No failure or delay by the Consultant in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall 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. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law Agency, partnership etc This Agreement shall 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. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf Further assurance 8

10 Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce Severance If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, 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 shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement Announcements Notices Subject to paragraph, no Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms. No Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange. 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 Work, health and safety The Company is committed to providing a healthy, safe and clean workplace for its employees, contractors and visitors. The Company s goal is to foster and sustain a positive safety culture. The Company s commitment is implemented through its work health and safety (WHS) policy and underpinned by a set of WHS and operational procedures throughout the Company. The Consultant is required to comply with all relevant work, health, safety and welfare standards and regulations determined by the Company or as prescribed by legislation Law and jurisdiction This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in [insert state/territory], Australia. The Parties submit to the nonexclusive jurisdiction of the courts of [insert state/territory]. 9

11 EXECUTED as an agreement. SIGNED for and on behalf of ) [insert Company name ) and ACN] by its ) authorised representative ) in the presence of: ) Director/Secretary Director Print name SIGNED for and on behalf of ) [insert name of ) Consultant] ) in the presence of: ) Witness Print name 10

12 SCHEDULE 1 [Specification] i Several of these definitions are optional. Please include or delete based on the wording and concepts actually selected for use in the Agreement. For example, the parties can elect for the Agreement to commence as at the date of the Agreement or as at a Commencement Date ; if the term and concept of Commencement Date aren t used, it should be deleted from the defined terms. ii This clause recognises that much consultancy work is now carried out through the use of subcontractors. For example, a small firm of management consultants contracted to reorganise a company's technical support function based in a number of countries will need to provide specialist tax advice pertaining to several countries. Such advice may only be available from a large firm of accountants. It is unlikely that the accountants will agree to a change of their terms and conditions to match those of the management consultant. This clause deals (in a very general way) with such situations. 11