Definitions

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Brisbane, Queensland are open for business.

Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.

Charges means Fees and Expenses.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Client means the party that will receive the Services as named in the Scope of Work.

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, irrespective of when the information was shared, including:

(a) any information that is specifically designated by any of them as confidential;
(b) any information which, by its nature, may reasonably be regarded as confidential;
(c) 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

(d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.

Control has the meaning given in Section 50AA of the Corporations Act.

Copyright Act means the Copyright Act 1968 (Cth).

Corporations Act means the Corporations Act 2001 (Cth).

Data Management Policy means the internal data management policies and procedures, if any, as implemented and amended by the Company from time to time.
Deadline Date means, in respect of a Scope of Work, the dates (if any) specified in the Scope of Work as the dates on or before which the Company aims to complete each Stage of the Engagement in accordance with clause 3.3.

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.

End Products means the final deliverables produced by the Company in respect of the requested Services, excluding drafts and rejected concepts, and all processes, policies, systems, tools, hardware, and software created or developed for the purpose of or during the course of providing the Services.

Engagement has the meaning given in clause 3.1, being each individual engagement for the Company to provide specific Services to the Client pursuant to a Scope of Work.

Event of Default means any of the following on the part of the Client:
(a) committing any material or persistent breach of this agreement;
(b) repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
(c) if the Client is a company, undergoing a Change of Control without the prior written consent of the Company;
(d) misleading the Company in any material way; and/or
(e) an Insolvency Event occurring in respect of the Client.

Expenses mean the expenses of the Company for which the Company is entitled to be reimbursed by the Client pursuant to clause 4.13.

Fees has the meaning given in clause 4.1.

Fixed Price means, in respect of a particular Engagement, if, as specified in the relevant Scope of Work:

(a) the Services are not divided into Stages, the price (exclusive of GST) specified in the relevant Scope of Work for all of the Services; or
(b) the Services are divided into Stages, the price (exclusive of GST) specified in the relevant Scope of Work for each Stage respectively.

Guarantor means the person/s (if any) named as Guarantor in the Scope of Works.

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 Law.

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

GST Law has the same meaning given to that expression in the GST Act.

Hourly Rate means the hourly rate set out in the relevant Scope of Work, if applicable.

Insolvency Event means, in respect of a party:
(a) 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;
(b) 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;
(c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
(d) the party is otherwise unable to pay its debts as and when they fall due.

In-Scope Work means work that has been expressly and specifically designated as being ‘included’ within the scope of the Services.

Input Tax Credit has the meaning given in the GST Law.

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, 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.

Late Payment Amount means a separate amount charged to the Client for failing to pay any invoice within the agreed time frame, intended to cover administrative costs and follow-up resources.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) 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, whether or not resulting in any liability; and
(d) all amounts paid in settlement of any Claim.

Modern Slavery Policy means the policy instituted by the Company within its governance principles, as required under the Modern Slavery Act 2018 (Cth).

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

Non-Solicitation Period means the greater of the following periods of time:
(a) 3 months;
(b) 6 months;
(c) 9 months;
(d) 12 months;
(e) 18 months; or
(f) 24 months

Out-of-Scope Rate has the meaning given in clause 4.9 and as described in the Scope of Work.

Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being excluded in the Scope of Work (if any).

Personal Information has the meaning given in the Privacy Act.

Personal Property has the meaning given to it in the PPSA;

PPSA means the Personal Property Securities Act 2009 (Cth);

PPSR means the Personal Property Securities Register established under the PPSA;

Privacy Act means the Privacy Act 1998 (Cth).

Relevant Invoices means any Invoices issued to the Client in respect of Services / Fees or other works completed by the Company for which the Client seeks to claim or enforce their Relevant IP rights granted under this agreement.

Relevant IP means all Intellectual Property Rights for End Products that the Company creates or conceives (whether alone or in conjunction with someone else) in the provision of the Services and/or Company’s engagement with the Client, including any End Products’ Intellectual Property Rights so made or conceived:
(a) using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
(b) as a result of 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; or
(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.

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

Retainer means the agreement entered into between the Company and Client for a specified Term, as defined in the relevant Scope of Work.

Rush Rate means an increased Hourly Rate payable by the Client, which typically ranges between 25% to 50% more than the Hourly Rate.

Scope of Work means, in respect of a particular Engagement, the document headed “Scope of Work” (or similar) setting out the scope of the Services for that Engagement as provided by the Company to the Client and accepted by the parties in accordance with this agreement.

Security Interest has the meaning given to it in the PPSA.

Services means the services provided by the Company to the Client under this agreement in respect of each Engagement, as set out in the relevant Scope of Work.

Stage means any particular severable stage / phase / project of the Services as specified in the Scope of Work.

Stamp Duty means 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, but excludes any GST.

Start Date means the date of this agreement, the date as outlined with the Scope of Works, or such other date as the parties may agree in writing.

Starting Fee (or Deposit) means the amount payable by the Client as defined within the Scope of Works, and payable upon the Client’s acceptance of this agreement / the Scope of Works or as otherwise invoiced by the Company.

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

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 Tax Acts 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, Stamp Duty 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.

Term means the period of time the agreement is to run for, as described in the relevant Scope of Work.

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

Interpretation

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:
(a) headings in this agreement are for convenience only and do not affect its interpretation or construction;
(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
(f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
(i) a reference to writing includes any communication sent by post, facsimile or email;
(j) a reference to time refers to time in Brisbane, Queensland and time is of the essence;
(k) all monetary amounts are in Australian currency;
(l) a reference to a “liability” includes a present, prospective, future or contingent liability;
(m) the word “month” means calendar month and the word “year” means 12 calendar months;
(n) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
(o) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
(p) a reference to any thing is a reference to the whole and each part of it;
(q) a reference to a group of persons is a reference to all of them collectively and to each of them individually;
(r) words in the singular include the plural and vice versa; and
(s) a reference to one gender includes a reference to the other genders.

2.1 The Client hereby engages the Company on a non-exclusive basis to provide the Services to the Client, and the Company hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.

Commencement and duration

2.2 The Company’s engagement with the Client will:
(a) commence on the Start Date; and
(b) expire upon completion of the Term (where specified); or
(c) continue indefinitely unless and until it is terminated in accordance with Clause 12.

Nature of relationship

2.3 The Company is an independent contractor of the Client and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.

Scope of Work

3.1 In respect of each individual engagement for the Company to provide Services to the Client under this agreement (each an Engagement), the parties must first agree on a Scope of Work. The Company’s obligation to provide the Services that are the subject of each Engagement does not arise unless and until the Client has notified the Company of the Client’s acceptance of the relevant Scope of Work.

3.2 Where there are inconsistencies between the Scope of Works and this agreement, the Scope of Works will override the terms contained herein.

3.3 If the Client requests a change to the agreed-upon Scope of Work after signing the contract agreement and agreeing to the terms, the Company will strive to accommodate these requests in a fair and flexible manner. However, at the Company’s discretion, an amendment fee of 10% of the original contract value will be applied to cover administrative and logistical costs associated with the changes. All amendments to Scope must be agreed upon and documented, either verbally or in writing, and approved by both parties before implementation.

Deadline Dates

3.4 If the Services for an Engagement are divided into Stages, the Company will endeavour to ensure that the Services for each Stage of the Engagement are fully completed to the reasonable satisfaction of the Client on or before the relevant Deadline Date.

Client Caused Delays

3.5 In the event of time delays resulting from the Client’s conduct, including but not limited to a failure to provide timely instructions, allow access to necessary information, or attend to payment of outstanding Charges, the Company cannot be deemed in breach of its obligations under this agreement for a reasonable period after the relevant Services’ respective Deadline Date, to be determined by consideration of the specific circumstances of the delay/s.

Pricing

4.1 Subject to clause 3.1, in respect of each Engagement the parties have agreed that the total price (investment) for the relevant Services (exclusive of GST and Expenses, and including any Starting Fee or Deposit where relevant) (the Fees) will be as designated in the relevant Scope of Work or as amended / updated from time to time in writing and mutually agreed to between the parties and will be either:

(a) (Not Stages) the Services are not divided into Stages and:

(Fixed Price) a Fixed Price applies – that Fixed Price payable in advance. The Company will invoice the Client for all relevant Charges upon commencement of each Stage; or (Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the Company in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 4.10 and payable in arrears upon completion of the Services to the reasonable satisfaction of the Client, and the Company will invoice the Client by way of a single invoice for all relevant Charges following completion of all relevant work to the reasonable satisfaction of the Client; or(b) (Stages) the Services are divided into Stages and:

(Fixed Price per Stage) Fixed Prices apply – the Fixed Price for each Stage payable in advance. The Company will invoice the Client for all relevant Charges upon commencement of each Stage; or

(Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the Company in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 4.10 and payable in arrears at the end of each Stage respectively, and the Company will invoice the Client for all relevant Charges for each Stage following completion of each Stage respectively to the reasonable satisfaction of the Client.

Rush Rate

4.2 In the event the Client requests Services be provided at an accelerated rate or at an earlier time than standard or as previously agreed to between the parties, a Rush Rate will apply and is to be determined by the Company at the time of the Client’s request.

4.3 Approval of a Client’s request for changes to the timing for performance of Services is entirely at the Company’s discretion and where permitted will be separately negotiated and documented within a written variation to the Scope of Works.

4.4 The parties hereby acknowledge that the Rush Rate is an additional cost payable by the Client on top of the originally agreed Fees and that a refusal of the determined Rush Rate will not amount to a refusal of the Services.

Acknowledgement of Pricing and Payment

4.5 The Client hereby acknowledges that:
(a) timely payment of invoices is reasonably required to protect the interests of the Company; and
(b) Where the Client enters into a Retainer with the Company:

it is reasonable for the Company to require payment for a minimum period of 12-months of Fees, as the nature of the Retainer results in the Company’s cashflow and receivable fees being discounted for the Services offered when compared to the fees payable by the Client if they were to engage the Company on a specific project basis or for a shorter Term;
the completion of the entire Term of the Retainer is reasonably required to protect the interests of the Company; and
the Company would not have entered into the Retainer if not for Client’s completion of the entire Term.

Starting Fee or Deposit
4.6 Where a Starting Fee or Deposit is payable by the Client, the Client acknowledges that this is a non-refundable sum and that it is to be paid upon signing of this agreement to the Company’s designated account.

4.7 In the event of the Starting Fee or Deposit being deemed a Security Interest, the Client consents to the Company registering their interest in the Deposit on the PPSR as a Security Interest. In granting this consent, the Client:
(a) Authorises the Company to undertake all actions necessary to facilitate PPSR registration and deal with the Security Interest as required from time to time;
(b) Waives their right, to the extent permitted by law, to receive any notifications required under the PPSA, including but not limited to their right to receive notices of registration of security interests or notices of intention to draw down on a Security Deposit subject to a Security Interest; and
(c) Agrees to promptly provide all requested information, execute all documents reasonably required for registration and do anything reasonably required by the Company to perfect and enforce the Security Interest.

Out-of-Scope Work

4.8 Notwithstanding clause 4.1, the Client will pay the Out-of-Scope Rate for any Out-of-Scope Work.

Hourly Rates and Out-of-Scope Rates

4.9 Hourly Rates and Out-of-Scope Rates shall be charged in hourly units. Hourly Rates range from $110 to $210 (ex GST) per hour, depending on the seniority of the team member or work required, or
equivalent value on a day rate basis, outside the scope of this service agreement and charged at Hunt & Hawk’s discretion.

4.10 The Company must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate and/or Out-of-Scope Rate applies and provide the Client with a copy of such records upon reasonable notice as may be requested by the Client from time to time.

4.11 The Hourly Rate and Out-of-Scope Rate may only be changed by way of an amendment to this agreement pursuant to clause 16.7.

Reimbursement of Expenses

4.12 The Client will pay all reasonable expenses properly and necessarily incurred by the Company in the course of providing the Services, provided that:
(a) the Company:

obtains the Client’s written consent before incurring the expenses;
provides the Client with acceptable documentation for the expenses incurred; and
complies with any applicable expenses policy of the Client in force from time to time, provided that a copy of the policy has been provided to the Company by the Client prior to the relevant expense being incurred; and
(b) the Client will not be required to reimburse the Company for any amount of GST that the Company has paid, or is liable to pay, in relation to any supply acquired by the Company from any third party if the Company has received, or is entitled to receive, an Input Tax Credit for that GST.

Late Payment

4.13 The Client hereby acknowledges that failure to pay any invoice in full within 10 Business Days of the due date will incur a Late Payment Amount of $200 (ex GST), automatically applied to invoices. This amount must be paid to cover additional administrative costs and follow-up resources required. In addition, invoices outstanding for over 30 days will incur a Late Payment Amount of 1.5% per month, along with any additional fines, penalties, and interest specified in clause 6.4. The Late Payment Amount is in addition to any rights and remedies under this agreement or in the event of any other default.

Timing of payments

5.1 The Client must pay to the Company all Charges properly invoiced pursuant to Clause 4 in full on or before the date that is 5 Business Days after the Client’s receipt of the relevant invoice.

Method of payment

5.2 All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash or Direct Debit, Credit Card, electronic funds transfer to the account nominated by the Company, or as otherwise agreed to between the parties.

No set-off or deduction

5.3 All amounts payable under or in connection with this agreement by the Client must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).

5.4 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

Event of non-payment

5.5 In the event of the Client failing to attend to payment as per the terms of this Agreement, the Client hereby acknowledges and authorises the Company, at their sole discretion, the right to:
(a) decommission all outstanding works or assets produced, maintained or amended in connection to the Services;
(b) unpublish any digital assets, such as websites, produced, maintained or amended in connection to the Services; and/or
(c) commence a Claim.

5.6 In the event of the Company commencing a Claim against the Client as a result of a breach of this Agreement, the Client hereby acknowledges that all time spent by the Company in connection to the Claim will be charged at the Hourly Rate.

Definitions regarding GST

6.1 In this clause 6:
(a) expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
(c) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.

Consideration is exclusive of GST

6.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.

Receiving Party to pay additional amount

6.3 If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.

Fines, penalties and interest

6.4 The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.

Reimbursement

6.5 If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.

Adjustment events

6.6 If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 6.3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

7.1 Subject to clauses 7.3 and 7.4, a Disclosee must:
(a) keep all Confidential Information confidential;
(b) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
(c) not disclose or make available any Confidential Information in whole or in part to any third party;
(d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
(e) ensure that any and all Authorised Third Party Disclosees:

comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Disclosee; and
do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of this agreement by the Disclosee.
7.2 The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.

Exceptions

7.3 The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.

7.4 Subject to clause 7.5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):
(a) was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:

unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;

(b) is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:

in circumstances that constitute a breach of this agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 7.1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in this agreement as if they were parties to this agreement in the place of the Disclosee); or
that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
(c) is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;

(d) is required by law or court order to be disclosed, provided that the Disclosee must:

promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;
(e) is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
(f) is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.

7.5 The exceptions in clause 7.4 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.

7.6 Both parties acknowledge and permit the Company’s practice of utilising technologies, including but not limited to Zoom, Microsoft Teams and Google Drive, to record and store Confidential Information. The management of such recordings will occur in alignment with Clause 7 herein and the Company’s applicable Data Management Policy.

8.1 Subject to clause 8.2, on and from the date of this agreement, each party must not:
(a) make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
(b) cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,
and must take all reasonable steps to prevent its Representatives from doing so.

8.2 Clause 8.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:
(a) promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
(b) reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

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

Assignment

9.2 Subject to the Client’s payment of all Relevant Invoices, 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.

9.3 Notwithstanding Clause 9.1 & 9.2 herein, the parties agree that the Company:
(a) is permitted to use all Relevant IP for marketing purposes; and
(b) retains ownership of all policies, systems, processes, tools, hardware and software created or developed for the purpose of or during the course of providing the Services.

Company’s duty to assist the Client

9.4 The Company must do anything reasonably necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Client’s title to any Relevant IP, in Australia or in such other countries as the Client may require at its discretion.

Indemnity

10.1 The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company harmless from and against, any and all Losses that may be suffered by the Company and which arise, directly or indirectly, in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct in the provision of the Services.

Indemnities continuing

10.2 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

10. 3 To the maximum extent permitted by law, the Company and its Representatives expressly:
(a) (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:

the Client will achieve any particular results from the provision of the Services;
any particular individuals will perform the Services on behalf of the Company; or
the Services will be:
(A) error-free or that errors or defects will be corrected; or

(B) meet the Client’s requirements or expectations; and

(b) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against the Company under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Company’s sole discretion):

re-supply of the Services;
payment of the costs of supply of the Services by a third party; or
the refund of any amounts paid by the Client to the Company under this agreement in respect to the Services,
even if the Company has been advised of the possibility of such Losses,

and the Client acknowledges and agrees that the Company holds the benefit of this clause 10.3 for itself and as agent and trustee for and on behalf of each of its Representatives.

Force majeure

10.4 To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company and the Company shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that the Company holds the benefit of this clause 10.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

Remedies for breach

10.5 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property) or clause 13 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.

11.1 Where the Client has entered into a Retainer with the Company, this Clause 11 ‘Pause Clause’, may be utilised by the Client upon request.

11.2 At the Client’s discretion, the Retainer may be temporarily paused for a maximum of sixty (60) Business Days (‘Pause Period’). In exercising this right, the Client must provide no less than thirty (30) calendar days written Notice to the Company.

11.3 During the Pause Period, the Company will cease the provision of all Services in respect of the Client’s Retainer. In exchange, the Client must attend to payment of a monthly Pause Fee, being 50% of the Fees payable for the relevant Pause Period, to the Company on the same terms Fees are to be paid under this Agreement.

11.4 Upon the Client’s recommencement of the Retainer, 50% of the Pause Fees paid in respect of the relevant Pause Period will be credited against the total Fees payable under the Retainer.

11.5 In entering into a Pause Period, the Client acknowledges that:
(a) the Company reserves the right to extend the Retainer Term by a period equal to the Pause Period granted; and
(b) nothing in this Clause 11 acts to impact upon any rights or liabilities of the Company or prevent the Company from seeking to enforce their rights or liabilities to the full extent permissible by law.

Termination for breach

12.1 The Company may terminate this agreement immediately by notice to the Client if an Event of Default occurs in respect of the Client.

12.2 If the Company commits any material or persistent breach of this agreement, the Client may (but is not obliged to) provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Client may terminate this agreement with immediate effect upon providing the Company with a further notice of termination in writing.

Termination with notice

12.3 Where the Client has entered into a Retainer and the Term has transpired, the Client may, without limitation to its rights under clause 12.2, terminate this agreement by giving at least 60 Business Days written notice to the Company.

12.4 The Company may, without limitation to its rights under clause 12.1, terminate this agreement at any time by giving at least 60 Business Days notice to the Client. The Client may waive all or part of such notice period.

Effect of termination

12.5 In the event of any termination of this agreement in any circumstances and for any reason whatsoever:
(a) the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of this agreement by the Client, including Charges incurred by the Company for the purchase of materials for those Services prior to such termination);
(b) the Company will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination, and clause 5 will apply in respect thereof.

Partially completed deliverables

12.6 Upon the cessation of the Company’s engagement under this agreement, subject to payment of all outstanding Charges 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.

Ipso facto legislation

12.7 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.

Accrued rights

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

Survival

12.9 The obligations of the parties under clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies), clause 13 (Non-solicitation) and this clause 12 will survive the termination of this agreement.

13.1 During the Company’s engagement with the Client under this agreement and for each Non-Solicitation Period thereafter, the Client must not, without the Company’s prior written consent (which the Company may withhold or delay in its absolute discretion), directly or indirectly:

(a) (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Company and any of the Company’s suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
(b) (non-solicitation of staff) induce, encourage or solicit any of the Company’s officers, employees, contractors or agents to cease their employment, engagement or agency with the Company.

13.2 The Client acknowledges and agrees that:
(a) the restraints in clause 13.1 constitute several separate covenants and restraints consisting of each of clauses 13.1(a) and (b) combined with each separate Non-Solicitation Period severally;
(b) each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Company’s goodwill and business;
(c) the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
(d) breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Company’s goodwill and business and would lead to substantial loss to the Company.

13.3 The parties intend the covenants and restraints under clauses 13.1 to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 13.3, be void as unreasonable for the protection of the interests of the Company but would not be so void if any part of the wording in this clause 13 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.

14.1 A notice given to a party under this agreement must be:
(a) in writing in English;
(b) sent to the address or email address of the relevant party as the relevant party may notify to the other party from time to time; and

14.2 A notice is deemed to have been received:
(a) if delivered personally, at the time of delivery; or
(b) if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,
except where such receipt is not within business hours (meaning 9:00 am to 5:00 pm on a Business Day), the notice will be deemed to have been received 9:00am on the next Business Day.

Guarantee

15.1 Each Guarantor unconditionally guarantees, both jointly and severally, to the Company:
(a) The punctual payment of invoices and other moneys to be paid to the Company under this Agreement; and
(b) The punctual performance and observance by the Client of all obligations under this Agreement.

Indemnity

15.2 Each Guarantor indemnifies the Company against Claims incurred or arising against the Company as a result of the Client’s breach of its obligations under the Agreement, including but not limited to the payment of invoices / Fees as issued to the Client by the Company.

Payment on Demand

15.3 Each Guarantor must pay to the Company on demand all Charges due and payable to Company by the Client under this Agreement.

Further assurances

16.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Third parties

16.2 This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Costs

16.3 All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.

Entire agreement

16.4 This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

16.5 If a provision of this agreement is invalid or unenforceable in a jurisdiction:
(a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
(b) that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

16.6 No failure, delay, relaxation 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. 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.

Amendment

16.7 Any agreements may not be varied except by written instrument and acceptance by all parties.
16.8 The Company may update these Terms and Conditions at any time to reflect changes in the business, services, legal or security reasons, or to prevent abuse.
16.9 In the event of the Client requesting amendments to the agreement or these Terms and Conditions, the Company reserves their rights to seek compensation for any legal costs reasonably incurred in connection to the Client’s request.

Acceptance

16.10 By engaging our services, all Clients and associated parties acknowledge that they have read, understood, and agree to be bound by these Terms and Conditions, including any updates or amendments. Continued use of services constitutes acceptance of any changes.

16.11 The contents of any verbal, digital or written communications, such as emails, are subject to these Terms and Conditions which apply immediately upon receipt.

16.12 In the event the Client does not follow the terms which they have agreed to, and the Company does not act immediately, it doesn’t mean the Company is giving up the right to take action in the future.

Assignment

16.13 The Client 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 Company.

16.14 The Company may assign or otherwise transfer any and/or all of its rights under this agreement without the Client’s consent. The parties acknowledge that an assignment under this Clause 16.10 herein will not impact upon the efficacy and enforceability of this agreement.

Counterparts

16.15 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.

Electronic exchange

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

Governing law and jurisdiction
16.17 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Queensland, Australia.

16.18 The parties irrevocably agree that the courts of Queensland, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

Modern Slavery

16.19 The Supplier advises that at the time of entering into this agreement, they have a compliant Modern Slavery Policy in place, as required under relevant legislation.

16.20 The Parties shall at all times take reasonable steps to ensure there is no Modern Slavery within its business and shall make all reasonable endeavours to ensure compliance with the same.