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SALES AND SERVICES AGREEMENT
THIS SALES AND SERVICES AGREEMENT is made on the date set out in Schedule 1.
BETWEEN:The Party whose details are set out in Schedule 2
(hereinafter "the Principal").
AND:The Party whose details are set out in Schedule 3
(hereinafter “the Contractor”).
WHEREAS:
- The Principal requires for its business purposes certain Services (as defined below) from Contractor, and
- The Contractor has offered to provide the Services to the Principal, and
- The Principal has accepted the Contractor’s offer to provide the Services, on the terms and conditions of this Agreement (as defined below).
NOW IT IS AGREED AS FOLLOWS:
PURPOSE DEFINITIONS AND INTERPRETATION
1)The above recitals are true and correct and are incorporated into this Agreement by reference.
2)This Agreement sets out the terms and condition under which the Principal retains the Contractor.
3)In this Agreement unless the context otherwise indicates –
a)a word which denotes
i)the singular includes the plural.
ii)any gender includes the other genders.
iii)a person includes an individual, a corporation, a body corporate, a partnership and a government.
b)a reference to –
i)this Agreement means this Sales and Services Agreement and where amended means this Agreement so amended.
ii)a clause, subclause, schedule, annexure or exhibit means a clause, subclause, schedule, annexure or exhibit to this Agreement.
iii)any Party shall mean the Principal or the Contractor and its respective successors and assigns and (except in the case of corporations) heirs, executors and administrators.
iv)theParties shall mean the Principal and the Contractor, collectively.
v)a person includes a reference that person’s executors, administrators, legal personal representatives, successors, and permitted assigns.
vi)writing includes any communication sent by post, email or facsimile transmission.
vii)any statute, proclamation, rule, code, regulation or ordinance includes all regulations and other instruments under it and all amendments, consolidations, modifications, re-enactments or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it or of any particular provision of it.
viii)any monetary amounts refers to United States currency.
ix)an authority, institute, association or body, whether statutory or otherwise, will in the event of any such organisation ceasing to exist, being reconstituted, or renamed or replaced or the power or functions or any such organisation be transferred to any other organisation, be deemed to refer respectively to the organisation established or constituted in lieu of any such organisation.
x)a group of persons includes any one of them.
xi)any thing or amount is a reference to the whole and each part of it.
xii)any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced.
c)The word or words –
i)"month" and "year" mean respectively calendar month and calendar year.
ii)"include" (in any form) when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind.
iii)"GST" means "Goods and Services Tax" and has same meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act") and any other related words appearing in the GST Act have the same meaning as defined in that Act.
iv)"person" means and includes a natural person, a corporation, a firm or any other legal entity whether acting as a trustee or not.
v)"Confidential Information" means all and any information in whatever form relating to the business of the Principal which has been disclosed by the Principal in confidence or which might reasonably be understood to have been disclosed by the Principal in confidence and which is not readily available in that form in the public domain, and shall include:
(1)any trade secrets, technical data, inventions, designs, drawings, hardware configuration information, formulas, specialised know-how, performance reports, operations reports, competitive advantages or disadvantages, of the Principal, and its affiliates and their customers, clients, and agents;
(2)any profit and loss statement, or profitability figures, or trial balance, or contract listing, or debtors reports, or turnover figures or marketing reports maintained by the Principal and any information listed therein;
(3)the profitability and pricing of contracts, tenders, and bids made by or to the Principal and any other financial information in relation to the business of the Principal which are or may be of commercial value to a competitor;
(4)the name, credit card numbers or information, address, telephone number, email, and account number of any Customer or potential customer or supplier of or to the Principal.
vi)"Fee" when expressed as a monetary figure in relation to a taxable supply shall be inclusive of any applicable GST.
d)Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
4)Headings in this Agreement are for convenience only and do not affect the interpretation or construction of the clauses to which they relate.
5)No rule of construction applies to the disadvantage of a Party because this Agreement is prepared by or on behalf of that Party.
ENTIRE AGREEMENT
6)This Agreement supersedes any and all agreements between the Parties, whether oral or written, in relation to the matters referred to herein.
7)This Agreement constitutes the entire agreement of the Parties in respect of the subject matter and its terms and conditions, and no representations, inducements, promises or agreements oral or otherwise not embodied herein shall have any force or effect other than as expressly provided in this Agreement, or subsequent to the date hereof in writing signed by the Party to be bound thereby.
CONTRACT FOR SERVICES
8)In this Agreement "Services" means any and all of the services set out in Schedule 4.
9)In this Agreement "Site" means any and all of the sites, premises, and locations set out in Schedule 5.
10)The Principal retains the Contractor to provide the Services and the Contractor shall provide Services to the Principal, some of which will be provided at the Site.
11)This Agreement shall be deemed to have commenced on the date hereof unless specified otherwiseand shall continue until terminated.
RESPONSIBILITY
12)The Contractor shall –
a)Do all acts and things necessary to provide the Services which the Principal requires from time to time;
b)Use its best endeavours to provide the Services required by the Principal at the Site, during the times and dates required by the Principal;
c)Perform the Services in a courteous, efficient and expeditious manner; and
d)Ensure that no injury or damage is caused to persons or to property on the Site and that no trespass to property is committed, arising out of or in connection with this Agreement.
13)The Contractor warrants that the Services provided hereunder will be performed -
a)in a highly professional manner, in accordance with best practices in the industry then in effect for the Services provided hereunder;
b)in a proper and workmanlike manner; and
c)to the reasonable satisfaction of the Principal’s customers.
14)The Contractor and all persons supplied by the Contractor shall comply with all of the Principal’s policies, conditions and workplace rules, as the Principal nominates in writing from time to time.
15)Where the Contractor provides or utilises equipment, such equipment shall be suitable for the performance of the Services and shall be maintained by the Contractor in good working condition.
16)The Parties shall co-operate with each other and use their best endeavours to resolve by mutual agreement any difference between them and all other difficulties which may arise from time to time concerning their respective obligations under this Agreement.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
17)The Contractor shall not at any time during or subsequent to this Agreement:
a)divulge or disclose any Confidential Information which has come into its possession as a result of this Agreement to any third party; or
b)use the Confidential Information except to the extent necessary for the purposes of this Agreement; or
c)make any internal or public announcements in relation to the Confidential Information.
18)The restrictions imposed by the preceding numbered clause:
a)do not prevent discussion of this Agreement at closed meetings of shareholders and directors of the Contractor; and
b)shall not apply to the disclosure of any Confidential Information which is required to be disclosed by law or becomes generally known to the public (other than as a breach of this Agreement) or is required to be disclosed by the Contractor in order for that Party to obtain financial or legal advice provided that the Contractor shall require those persons to whom it discloses the Confidential Information, to also comply with the preceding numbered clause.
19)The Contractor covenants that it will not between the commencement of this Agreement and the date 12 months after termination of this Agreement:
a)Canvass, solicit, or endeavour to entice away from the Principal any customer of the Principal;
b)Solicit, interfere with or endeavour to entice away any employee of the Principal; or
c)Counsel, procure or otherwise assist any person to do any of the acts referred to in this clause.
20)The Contractor shall upon request of the Principal display affix and maintain the business name, trade marks and logos of the Principal upon any machinery, vehicles, work clothes or other equipment utilised in the course of the Services whether supplied by the Principal or by the Contractor or otherwise.
21)The Contractor agrees that all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, logos, trademarks or trade secrets, conceived, developed, generated or produced pursuant to the Agreement by the Contractor or the Contractor’s personnel resulting from or relating to the provision of the Services, including documentation, flow charts, diagrams, reports, writings, and data (“Work Product”) shall become the sole and exclusive property of the Principal.
22)If this Agreement is terminated for any reason, the Contractor shall promptly return and deliver to the Principal all written, electronic and portable forms of Confidential Information and Work Product and all copies thereof in its possession, custody or control. This obligation will survive the termination of the Agreement.
FEE FOR SERVICES
23)In consideration of the Contractor providing Services and performing its covenants in Accordance with this Agreement, the Principal will pay the Contractor the Fee specified in Schedule 6as the sole consideration for the Services.
24)To the extent the GST Act applies to the Services, it shall be a condition precedent to the Principal’s payment of Fees to the Contractor that the Contractor renders to the Principal a tax invoice that: (a) complies with the GST Act,and (b) provides all such particularisation, calculation, and quantification of the invoiced Fee as the GST Act requires. Regardless of whether the GST Act applies tothe Services, it shall be a condition precedent to the Principal’s payment of Fees to the Contactor that the Contractor renders to the Principal an invoice that provides all such particularisation, calculation, and quantification of the invoiced Fee as the Principal may reasonably require.
25)Unless otherwise required by the Principal, the Contractor shall render to the Principal tax invoices at the frequency and on the days of the week or month indicated in Schedule 8. This clause shall not apply if Contractor has not rendered a taxable supply to the Principal in the period following a prior tax invoice.
26)If the Fees payable to the Contractor include re-imbursement for any disbursement or expense of the Contractor, it shall be a precondition to the payment of so much of the invoiced Fee that relates to that disbursement or expense that the Contractor render together with its tax invoice an invoice or receipt or other proof of payment for or liability for such disbursement or expense.
27)All Fees for the Services provided by the Contractor shall be invoiced in the name of the Contractor. The Principal shall not be obliged to pay any Fee in respect of Services rendered by the Contractor to a third party.
28)The Principal will initiatepayment of undisputed Fees within seven business (7) days of its receipt of the invoice for the Services.
NON-EXCLUSIVE CONTRACT FOR SERVICES ONLY
29)The Parties acknowledge and agree that the Contractor is acting as an independent contractor in providing the Services and that this Agreement does not create any partnership or other joint venture or enterprise between the Parties.
30)The Parties acknowledge and agree that this Agreement is not a contract of service, that the Contractor (and any of its directors, agents, representatives, or delegates) is not an employee of the Principal and that it is the express intention of the Parties that any such relationship is denied.
31)Nothing in this Agreement, and no verbal or written communication between the Parties, whether prior to or after this Agreement, will be construed as an express or implied employment agreement or a promise by the Principal to employ the Contractor or any of its agents representatives or delegates.
32)Any plant, machinery, equipment, clothing, trade marks, logos and materials supplied by the Principal to the Contractor in connection with the provision of Services shall remain the legal and beneficial property of the Principal, and the Contractor shall promptly return such plant, machinery, equipment, clothing, trade marks, logos and materials to the Principal promptly upon termination of this Agreement.
33)Any plant, machinery, equipment and materials supplied by the Contractor in accordance with this Agreement shall remain the legal and beneficial property of the Contractor except to the extent that such plant, machinery, equipment and materials has been consumed or affixed to the real property of the Principal’s customers in the ordinary course of the Services.
34)The Contractor acknowledges and agrees that the Principal -
a)makes no commitment to require Services implying the payment of a minimum periodic amount of fees to the Contractor, and
b)does not engage the Contractor on an exclusive basis, and
c)is not responsible for knowing the Contractor’s dependence on revenues from Services provided at the request of the Principal.
35)The Contractor understands and acknowledges that:
a)Other than as specified in Schedule 6 attached hereto, the Contractor is not entitled to receive from the Principal any wages, loadings, retirement contributions, paid annual holidays, paid public holidays, long service leave, sick leave, Pay As You Go payment summaries, workers compensation cover, or other statutory or common law benefits that the Principal grants to its employees; and
b)the Principal will not withhold any income tax from any monies or fees paid to the Contractor pursuant to this Agreement; and
36)The Parties agree that the Principal will not be liable for any damages under any circumstances arising from this Agreement or from the Services, even if advised of the possibility of such damages or if such damages are foreseeable. The Contractor’s sole and exclusive remedy arising from this Agreement shall be payment by the Principal for any Services satisfactorily performed by Contractor prior to termination.
NO DEPENDENCE
37)The Parties agree and declare that nothing in this Agreement, and no verbal or written communication between the Parties, whether prior to or after this Agreement, will be construed as a promise or obligation by Company to obtain any Services from the Contractor in any particular volume or amount during any particular period of time.
38)The Contractor agrees to release, hold harmless and indemnify the Principal from any and all claims and liabilities relating to the Contractor’s financial stability which may result from the Principal’s termination of this Agreement for any reason whatsoever. This obligation will survive the termination of the Agreement.
INDEMNIFICATION
39)Contractor will defend, indemnity and shall keep indemnified and hold harmless the Principal and its affiliates and their officers, directors, employees, shareholders, customers, agents, successors, and assigns from and against any and all loss, damage, liabilities, settlement, costs, or expense (including legal expenses and the expenses of other professionals) as incurred, resulting from or arising out of –
a)a breach of any terms of this Agreement by the Contractor or any person supplied by the Contractor;
b)the negligence of, or personal injury or property damage caused by, the actions or inactions of the Contractor or any person supplied by the Contractor;
c)any claim by the Contractor or any person supplied by the Contractor for any benefits offered by the Principal to its own employees; and
d)any claim which alleges the Services or any Work Product (as defined above) infringes upon, misappropriates or violates any third party patents, copyrights, trademarks or trade secret rights or other proprietary rights.
This obligation will survive the termination of the Agreement.
40)The Contractor shall take and maintain during the operation of this Agreement insurances against its own potential liabilities as specified in Schedule 10 in such amount of cover as may be specified in Schedule 10. The Contractor shall obtain certificates of currency in respect of all such insurances, and shall forthwith upon receipt provide copies or originals of such certificates to the Principal.