Instructions:
- You act for the Contractor.
- The Contractor has been providing naturopathic services on their own for 5 years.
- They are now going to provide naturopathic services under the Company. You can assume that the Company is a PTY LTD Australian company.
- The Contractor is renting a room in the Company’s new naturopathic chambers.
- Please review the contract below and highlight any issues you see for the Contractor (your client). All issues you find should be brought to the Contractors attention using the comment functionin MS Word (i.e. highlight the clause, sentence or words you want to bring to the Contractor’s attention) and the comment should be addressed to the Contractor. Here is an example[SZ1].
- Also please highlight, once again using the MS Word comment function any issues you want to bring to the attention of the lawyers acting for the Company. Comments to the Company’s Lawyers do not need a name in the comment box as every comment that is not marked as being for the Contractor, by implication is therefore for the Company. Comments will look like this[SZ2].
- You can amend any clause to make it more favourable to your client the Contractor. Where you do so the marked up change should have a comment inserted describing why you want to make the proposed change. E.g. “The Contractor must within 1015 [SZ3]days do….”
- Any typos can be corrected. They do not need to have a comment attached to them.
- Lastly, I want both parties to sign the contract electronically. Let me know if the contract can be signed that way.
- Good luck.
Subcontractor Agreement
The Company
The Contractor
This Agreement is made
Between: / The Company (“The Company”)And: / The Contractor(“Contractor”)
1.BACKGROUND
A.The Company is engaged in the business of naturopathic services(Business).
B.The Contractor has expertise in providing naturopathicservices.
C.The Company wishes to engage the Contractor to provide naturopathic services under the terms and conditions of thisagreement.
2.OPERATIVEPROVISIONS
3.DEFINITIONS ANDINTERPRETATION
3.1Interpretation
In this agreement, unless the context otherwise requires:
(a)Headings are for convenience only and do not affectinterpretation;
(b)the singular includes the plural and viceversa;
(c)a gender includes everygender;
(d)a reference to a party, clause, schedule or annexure is a reference to a party and annexure to and a clause and schedule of, this agreement and a reference to this agreement includes any schedule andannexure;
(e)areferencetothedateofanyterminationisareferencetothedateoftheexpiryofany period of notice of termination and a reference to termination is a reference to the termination of thisagreement;
(f)mentioning anything after includes or including does not limit what else might be included;
(g)a reference to a right or obligation of two or more persons confers that right, or imposes that obligation, as the case may be, jointly andseverally;
(h)a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and any regulations and statutory instruments issued underit;
(i)a reference to conduct includes any omission, representation, statement or undertaking, whether or not inwriting;
(j)the schedules prevail in the event of any conflict between the clauses and the schedules;
(k)ifthedayonorbywhichanythingistobedoneisnotaBusinessDay,thatthingmust be done on or by the preceding Business Day;and
(l)no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of thisagreement;
(m)a reference to dollars or $ is to Australian currency;and
(n)all references to time are to Canberratime.
4.SERVICES ANDOBLIGATIONS
(a)TheContractorwillprovidenaturopathicservicesfromtimetotime,forandonbehalf ofthe Company.
(b)The naturopathy services provided by the Contractor willinclude:
(i)naturopathic professional consultations as defined by the Australian Natural Therapies Association guidelines Scope & Standards ofPractice;
(ii)sale and dispensing of naturopathicsupplements;
(iii)sale and dispensing of naturopathic liquid herbs;and
(iv)the supply of any other associated naturopathic products and services. (Services);
(c)The Contractor may provide the Services at the Business premises provided by the Companyattimesagreedbythe Company,oratotherlocationsincludingclientpremises.
(d)TheContractoristomaintaincurrentmembershipoftheAustralianNaturalTherapies Association (ANTA) or another relevant professional association, to comply as a registered provider of health funds for the provision of their naturopathicservices.
(e)The Contractor is required to source their own clients, and take all necessary steps to build and maintain good client relationships for the benefit of the Business and this agreement.
(f)The Contractor is required to supply their own laptop, and any other equipment necessary to carry out theServices.
(g)The Contractor is required to provide their own accounting system to issue invoices and receipts on behalf of the Company to clients of their naturopathic services and sales, and to maintain up-to-date and accurate client files in accordance with the guidelines of healthfunds.
(h)The Contractor is to ensure that they hold and maintain at their cost all the requisite qualifications, skills and training to practice as anaturopath.
(i)The Contractor is to take out and maintain all relevant insurances including professional indemnity insurance of not less than $1.5million.
(j)TheContractoristoactprofessionallyandcourteouslyinalldealingswiththe Company, its clients, its officers, employees andcontractors.
(k)The Contractor is to comply with relevant policies of the Company including those relating tosafety.
5.ENGAGEMENT
The Contractor will commence providing the Services from 4 April 2016 and theContractor's engagement and this agreement may be terminated in accordance with clause 9below.
6.THE CONTRACTOR'S OTHEROBLIGATIONS
TheContractormustnotduringthetermofthisagreement,withoutthepriorwrittenagreement of the Company, provide any Services to or for any person or entity who or which has an interest which is directly or indirectly in competition with the activities of thethe Company.
7.FEES
(a)All fees charged to customers for the Services of the Contractor must be paid directly tothe Company.
(b)The Company will pay the Contractor the followingcommission:
(i)sixty percent (60%) of the fee charged for each of the Contractor’s naturopathic professionalconsultations;
(ii)Twelve and a half per cent (12.5%) of all naturopathic supplements sold and dispensed by the Contractor;and
(iii)Eighteenpercent(18%)ofallnaturopathicliquidherbssoldanddispensedby theContractor.
(c)At the end of each fortnight, the Contractor must issue the Company with a tax invoice for the Servicesitemising:
(i)the amount due to the Contractor in accordance with subclause 7(b)(i) for the naturopathic professional consultations held by the Contractor during the preceding fourteen (14) days;and
(ii)the amount due to the Contractor in accordance with subclause 7(b)(ii) and 7(b)(iii) for naturopathic supplements and liquid herbs sold and dispensed by the Contractor during the preceding fourteen (14)days.
(d)Ifthe Companydisputesataxinvoiceissuedinaccordancewithsubclause7(c)the Company must notify the Contractor of that dispute within seven (7) days from the date of issue and the parties must make reasonable attempts to promptly resolve thedispute.
(e)The Companymustpaytheundisputedamountofataxinvoicewithinseven(7)daysfrom the date ofreceipt.
(f)The CompanymayissueaRecipientCreatedTaxInvoiceforthepayabletotheContractor pursuant to subclause7(b).
(g)The Company and the Contractor agree that payments made to the Contractor in accordancewithclause7constitutefullpaymentbythe Companyfortheprovisionofthe Services.
8.EXPENSES
(a)The Contractor will provide the Services at its own cost, and unless expressly authorised by the Company, the Contractor will not be entitled to be reimbursed for any out of pocket expenses incurred by the Contractor in connection with the provision of the Services and will be solely responsible for and solelybear:
(i)their own remuneration and benefits including salaries and wages, annual leave, sick leave, superannuation, long service leave and all other benefits to which any of them may be entitled under any contract of service or contract for service with the Contractor or under any award, industrial instrument, statute or commonlaw;
(ii)the payment of all taxes and duties in respect of such remuneration and benefits;and
(iii)costsofcompliancewithallotherstatutory,awardorotherlegalorcontractual requirements.
9.NATURE OFRELATIONSHIP
(a)The Contractor is engaged by the Company as an independent contractor and nothing in this agreement constitutes the Contractor as agent, employee, director or partner of the Company.
(b)The Contractor has no authority to incur, and will not incur, any obligation on behalf of the Company except with the prior written approval ofthe Company.
(c)Subject to the terms of this agreement, the parties acknowledge that the Contractor is solely responsible for controlling the manner in which the Contractor provides the Services.
10.TERMINATION WITHNOTICE
(a)TheCompanymayterminatetheengagementoftheContractorandthis agreement at any time for any reason by giving the other party one (1) months’ notice inwriting.
(b)Notwithstanding clause 10(a), the Company may terminate this agreement at any time without notice if the Contractor engages in a serious or material breach of this agreement.
11.INSURANCE
(a)Before providing the Services, the Contractor must takeout:
(i)public liability insurance;and
(ii)professional indemnity insurance of not less than $1million.
12.GOODS AND SERVICES TAX(GST)
(a)Unless stated otherwise and subject to this clause, any amount required to be paid or consideration required to be provided under any other provision of this agreement is calculated to be exclusive ofGST.
(b)IfGSTispayableinrelationtoataxablesupplymadebyapartyunderthisagreement then, subject to subclause 12(a) above, the party making the taxable supply must charge an additional amount equal to the GST payable on thatsupply.
(c)A party may not recover the additional amount under subclause 12(b) above unless and until a valid tax invoice for the supply to which that additional amount relates is issued and delivered to the otherparty.
(d)InthisclauseGST,Supply,TaxableSupply,Value,andInputTaxCredithavethe same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) asamended
13.NON-COMPETE ANDRESTRAINT
(a)Without limiting clause 6 of this agreement and subject to subclause 13(b), duringthe operation of this agreement, the Contractor will not, without the prior written consent of the Company, either directly or indirectly become involved or participate in any capacity in any business, activities, decisions, operations, undertakings or concerns which, in the reasonable opinion ofthe Company:
(i)conflict, or appear to conflict, with the interests of the Company;and
(ii)areincompetitionwith,orareofasimilarnatureto,theactivitiesofthe Company.
(b)For a period of twelve (12) months after the Contractor's engagement with the Company has been terminated for whatever reason, the Contractor agrees that it will not within twenty (20)kilometres:
(i)canvass, solicit or endeavour to entice from the Company any person or organisation that was a customer or supplier of the Company at the date of the termination of this agreement and, in relation to whom, the Contractor, provided naturopathic services to during the operation of this Agreement;or
(ii)counsel or induce any other person to perform any of the acts specified in subclause(i).
(c)The Contractor acknowledges that any breach by the Contractor of this clause would cause irreparable harm and significant damage to the Company and accordingly that the Company has the right to seek and obtain immediate injunctive relief in relation to any suchbreach.
(d)The Contractor acknowledges that the covenants in respect of non-competition containedinthisclausearefairandreasonableandthatthe Companyisrelyinguponthis acknowledgement in entering into thisagreement.
14.CONFIDENTIALITY
(a)For the purpose of this agreement, Confidential Information means all information concerning:
(i)the Company’s contractualagreements;
(ii)the Company’scustomers;
(iii)the Company’s trade secrets;and
(iv)other information designated as confidential bythe Company,
whichtheContractorreceives,becomesawareof,develops,createsorgeneratesinthe course of or in incidental to the operation of this agreement or the provision of the Services.
(b)The Contractor agrees and warrantsthat:
(i)subject to subclause (c) below, the Contractor will not, either during the operation of this agreement or at any time thereafter use or disclose to any person or entity any of the ConfidentialInformation;
(ii)the Contractor will hold the Confidential Information in trust and confidence; and
(iii)the Contractor will use its best endeavours to prevent the unauthorised use or disclosure of any of the Confidential Information by thirdparties.
(c)The obligations in subclause (b) above do not apply to any Confidential Information which:
(i)is in the public domain other than due to a breach of an obligation of confidence under this agreement;or
(ii)the Contractor is required by law to disclose, although the Contractor must notifythe Companyimmediatelyuponbecomingawarethatitwillberequiredto disclose any Confidential Information in accordance with thisclause.
(d)The Contractor must take all reasonable precautions to prevent any unauthorised disclosure of Confidential Information, including the followingprecautions:
(i)the Contractor must at all times store all Confidential Information safely and securely;
(ii)the Contractor must immediately notify the Company in writing of any actual, threatened or suspected unauthorised disclosure of any Confidential Information;and
(e)The Contractor must take all reasonable measures to minimise any unauthorised dissemination of any Confidential Information which is in any way related to or resulting from an act or failure to act by theContractor.
15.INTELLECTUALPROPERTY
(a)The Contractorwill:
(i)immediately inform the Company of any matter which may come to its notice duringtheoperationofthisagreementwhichmaybeofinterestorimportance or use to the Company;and
(ii)immediately communicate to the Company any proposals or suggestions occurringtoitduringtheoperationofthisagreementwhichmaybeofservice or the Business ofthe Company.
(b)Any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by the Contractor in the course providing services under this agreement (whether alone or withanyotherperson)whichiscapableofbeingusedoradaptedforuseinconnection with the activities of the Company (Inventions) must immediately be disclosed to the Company, whether or not the Inventions are capable of being protected by copyright, letters patent, registered design or otherprotection.
(c)AllInventionswillbepartoftheConfidentialInformation,andtheContractorassigns or, to the extent necessary, will assign its entire right, title and interest in and to the Inventions (and any intellectual property protection obtained in respect of the Inventions) to the Company as the Company may nominate for thepurpose.
(d)The Contractor will at the expense of the Company execute all documents and do and execute all such further acts, matters and things as may be necessary or reasonableto:
(i)register or otherwise protect the Inventions;and
(ii)perfect the assignment required by thisclause.
(e)Wheneverrequiredtodoso,andattheexpenseofthe Company,theContractorwillapply or join in applying for letters patent or any other intellectual property protection reasonably determined by the Company in Australia or in any other part of the world for any Invention conceived, made, developed or discovered by the Contractor in the course of providing services under this agreement. The Contractor will execute all instruments and do all things necessary to apply for such protection and to assign the benefit of that protection to the Company or itsnominee.
16.PRIVACY
TheContractorwillcomplywithallprivacyobligationsunderanylaworregulation,including any privacy policy implemented by the Company from time totime.
17.GENERAL
17.1Governinglaw
This agreement is governed by the laws of the Australian Capital Territory and both parties submit to the exclusive jurisdiction of the courts of that Territory.
17.2Assignment
Neither party may assign this agreement without prior written consent of the other party.
17.3Severance
Any provision of this agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. This willnot invalidate the remaining provisions of this agreement nor affect the validity or enforceability of the provision in any other jurisdiction.
17.4Waiver
Failure or omission by the Company at any time to enforce or require strict or timely compliance with any provision of this agreement will not affect or impair that provision, or the right of the Companytoavailitselfoftheremediesitmayhaveinrespectofanybreachofaprovision,in anyway.
17.5Variation
Any variation of this document must be in writing and signed by the Company.
17.6Entireagreement
This agreement contains the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties with respect to its subject matter.
17.7Survival
If this agreement is terminated for any reason such termination will not affect any accrued rights or liabilities of either party nor will it affect the coming into force or the continuance in forceofanyprovisionofthisagreement(insofarasitimposesobligationsontheContractor) which is expressly or by implication intended to come into force or continue on or after the termination.
17.8Date ifUndated
Ifthisagreementisundatedandthereisnocontraryintentionstated,thedateofthisagreement is the date of last execution by aparty.
EXECUTED as anagreementon2016
ExecutedbyThe Company in the presence of: / ))
)
Signature of Witness / Signature of CEO of the Company
Full Name of Witness (please print)
Executed by the Contractor in the presence of: / )
)
)
Signature of Witness / Signature of the Contractor
Full Name of Witness (please print)
[SZ1]Contractor – [insert issue/point you want to make]…
[SZ2]My client [insert issue/point etc etc]
[SZ3]My client requests a longer period of time in which to do XY and Z.