Services Agreement (extract)

Recitals

The Service Provider (Growth Advantage Pty Ltd) is in the business of providing certain services as set out in the Agreement.

The Client has requested the Service Provider to provide the Services and The Service Provider has agreed to provide the Services on the terms set out in the Services Agreement.

1. Definitions

Business means the business carried on by the Client.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise)

Client means the party named and described in Item 1 of the Services Agreement Schedule (eg, you) and includes its servants, agents, employees, successors in title and those claiming through or under them.

Commencement Date means the date on which the Service Provider is to start performing the Services as set out in Item 2 of the Services Agreement Schedule.

Confidential Information means any information provided by the Client to the Service Provider in connection with this Agreement which includes, but is not limited to information relating to the Business of the Client and which is not in the public domain, information which is marked confidential or which the Client otherwise notifies the Service Provider is to be kept confidential.

Default Rate means the interest rate being 2% higher than the rate under the Penalty Interest Rates Act 1983 (Vic)

Facilities means working space, computer equipment, access to the internet and the Client's computer network, telecommunications system and similar.  It includes access to such resources but also use of them to the extent required by the Service Provider in order to perform the Services.

GST means GST within the meaning of the GST Act.

GST Act means the New Tax System (Goods and Services Tax) Act 1999 (as ammended).

Guarantor means the Client's directors as set out in Item 5 of the Services Agreement Schedule.

Insolvent means "bankrupt", "insolvent under administration" or an "externally administered body corporate" as each of these words and phrases are defined in the Corporations Act 2001.

Intellectual Property includes the name (or part thereof) of the Client and all other trading names, trade marks, reputation, know-how, techniques, trade secrets, client database, client records, referral sources, business plans, telephone and facsimile numbers, special systems and procedures developed by or for the Client whether in written or other forms and including copies of the Intellectual Property.

Law means all legislation, regulations (or instruments made under it), by-laws, notices, directions, orders, requirements or demands which apply to this Agreement and the provision of the Services where amended, re-enacted or replaced, means the ammended, re-enacted or replacement Laws.

Loss means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever incurred or suffered whether indirect or consequential in nature including any economic loss or other loss of turnover, profits, business or goodwill.

Services means the services to be provided by the Service Provider to the Client under the Services Agreement, being the services set out in Item 3 of the Schedule, as may be modified in accaudance with Clause 4.1 from time to time.

Service Fees means the fee payable by the Client to the Service Provider as set out in Item 4 of the Services Agreement Schedule.

Services Provider means Growth Advantage Pty Ltd (ACN 649 047 932), PO Box 6177, Croydon North VIC 3136; and includes the Service Provider's servants, agents, employees, successors in title and those claiming through or under them.

2. Engagement of Service Provider

The Client engages the Service Provider and the Service Provider agrees to be so engaged to provide and make available the Services to the Client on the terms and conditions set out in the Services Agreement.

3. Descripton of Services

  1. On the Commencement Date, the Service Provider will provide the Services to the Client subject to the provisions of the Services Agreement.

  2. The Service Provider will provide the Services to the Client at the time and place the Service Provider considers appropriate, having regard to the nature of the Services, the requirements of the Client and the availability of the Service Provider, its staff and its agents.

  3. The Service Provider may, by notice in writing to the Client, alter the range of Services available from tiem to time by adding or removing any services as the Service Provider considers appropriate.

4. Service Provider's Duties

  1. In providing the Services, the Service Provider shall:

    1. act in good faith and in the best interests of the Client; and​

    2. in compliance with all Laws.

  2. The Serice Provider will use reasonable endeavours to complete the Services

  3. The Services may be performed either by the Service Provider directly, or by its employees or agents that the Service Provider may choose as most appropriate to carry out the Services.

5. Client's Duties

  1. The client will:

    1. ensure that it (and its staff and agents) co-operate with and assist the Service Provider as the Service Provider reasonably requires;​

    2. comply and ensure that its manager, agents and employees comply with all Laws;

    3. pay to the Service Provider the Service Fee in accordance with the terms and conditions of the Services Agreement;

    4. provide the Service Provider with all information and documents relating to its business as the Service Proivder requires to provide the Services and the Client will use its best endeavours to ensure that the information and documents provided to the Service Provider under the Services Agreement are accurate and complete; and

    5. make available to the Service Provider such Facilities as the Service Provider reasonably requires.

  2. The Client will not charge for the Service Provider's use of the Facilities made available by the Client.

  3. If the Client does not provide the Facilities that the Service Provider reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by the Service Provider will be paid by the Client.

6. Fees for Service

  1. In consideration of the Service Provider providing the Services, the Client will pay the Service Fee to the Service Provider.

  2. The Service Provider will provide the Client with a tax invoice in relation to Service Fees payable under this clause 6.

  3. The Client acknowledges that the Service Fee is exclusive of any GST that may be charged by the Service Provider to the Client.

  4. Payment will be made by the Client to the Service Provider not more than fourteen (14) days after receiving the Service Provider's tax invoice.  The Service Provider reserves the right to suspend any part of the Services to the Client until the payment of the Service Fee has been made in full by the Client.

  5. The Service Provider is permitted to vary the Service Fee and terms of the Services Agreement with written notice to the Client 14 days prior to the change being implemented, in which case the Client will pay the adjusted Service Fees amount.

  6. The Service Fee will vary depending on such factors as the nature of the Services to be provided, the degree of skill required to perform the Services, the duration of the project and the location of the Services.

  7. The Service Provider is permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier service,s postage, dedicated reception phone line, etc.

  8. If the Client does not make payment by the date stated on an invoice or as otherwise provided for in the Services Agreement, the Service Provider is entitled to do any or all of the following:

    1. charge interest on the outstanding amount at the Default Rate, accruing daily;​

    2. require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;

    3. not perform any further Services (or any part of the Services) and/or

    4. terminate the Services Agreement in accordance with clause 7.

  9. if the Service Provider requests, the Client must, at its own cost, establish an automatic payment system to enable money to be paid by the Client to the Services Provider to be automatically debited from the Client's bank account and credited to the Service Provider's bank account.

 

7. Term/Termination

  1. The Services Agreement commences on the Commencement Date and continues until terminated by either party by giving to the other party not less than 30 days prior written notice.

  2. Notwithstanding clause 7.1, the Service Provider may terminate the Services Agreement without notice if:

    1. the Client fails to bserve any term of the Services Agreement and fails to correct such breach to the satisfacton of the Service Provider within 7 days of receiving notice specifying such breach or default;​

    2. the Client enters into a deed of arrangement or an order is made for it to be wound up;

    3. an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth);

    4. the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth);

    5. the Client dies or becomes of unsound mind; and/or

    6. the Client commits any adverse act being any criminal act (or is charged with any criminal act), an act of bankruptcy, dishonesty, fraud, misconduct, inappropriate or unprofessional conduct, negligence or breach of obligation or duty.

  3. In the case of termination, the Client will pay the Service Provider for all Service Fees, expenses or reimbursements payable by the Client to the Service Provider accrued upto and including the date of termination in accordance with a tax invoice issued to the Client.

  4. When the Service Agreement ends (for whatever reason):

    1. all rights, privileges and licences granted to either party under the Services Agreement immediately end, and​

    2. each party must immediately at its own expense, deliver to the other party, all Confidential Information belonging to the other party.

  5. The end of the Services Agreement will no:

    1. relieve the Client of any obligations to pay any money owing to the Service Provider under this Agreement or any other agreement between the parties; or​

    2. affect nay provision contained in this Agreement which expressly or by implication is to become operative or continue to operate after the Service Agreement is transferred or ends, including the provisions relating to Confidential Information, indemnities and payment of liquid damages.

 

8. Relationship of Parties

  1. It is understood by the parties that the Service Provider is and shall remain an independent contractor with respect to the Client and nothing in the Services Agreement constitutes the relationship of employer and employee between the Client and the Service Provider or any person or persons that the Service Provider designates to perform the Services on the Service Providers behalf.

  2. The Client will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of the Service Provider.

  3. The Service Provider and the Client agree to the following rights consistent with an independent contractor status:

    1. the Service Provider has the right to perform services for others during th eterm of the Service Agreement;​

    2. the Service Provider has the sole right to control and direct the means, manner and method by which the Serivces required by the Service Agreement will be performed;

    3. the Service Provider has the right to hire assistants as subcontractors, or to use employees to provide the Services required by the Service Agreement;

    4. the Service Provider or the Service Provider's employees or subcontractors shall perform the Services required by the Service Agreement.  The Client shall not hire, supervise or pay any assistants to help the Service Provider; and

    5. the Client shall not require the Service Provider or the Service Provider's employees or subcontractors to direct them to devote their full time to performing the Services required by the Service Agreement.

 

9. Work Product Ownership

The Service Provider presently assigns to the Client all existing and future intellectual property rights in all inventions, models, designs, drawings, plans, reports, proposals and other materials (collectively the "Work Product") created or generated in whole or in part by the Service Provider in the course of performing the Services under the Services Agreement (whether alone or with the Client, its other employees or contractors) for use by the Client.  Upon request, the Service Provider shall sign all documents necessary to confirm or perfect the exclusive ownership of the Client to the Work Product.

 

10. Use of Subcontractors

  1. The Service Provider is permitted to use other persons to provide some or all of the Services.

  2. The Service Provider is responsible for the work of any of the Service Provider's subcontractors.

 

11. Intellectual Property

The Client grants the Service Provider a non-exclusive licence to use the Intellectual Property during the term of the Services Agreement.

 

12. Confidential Information

The parties agree that all Confidential Information belonging to the other party, whether in existence as at the date of the Service Agreeemnt or at any time during the Term, is and will remain the property of the other party.  Each party agrees it will not, at any time, disclose to any third party any Confidential Information that it receives from the other party and use its best endeavours to ensure that its employees and agents comply with this clause.  This provision shall continue to be effective after the termination of the Services Agreement.

 

13. Limitation on Liability

The parties agree that the liability of the Service Provider under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise for any Loss must not exceed the Service Fee paid by the Client to the Service Provider under the Services Agreement.

 

14. Indemnity

The Client must indemnify and hold the Service Provider harmless from and against all Claims and Losses arising from loss, damage, liability, injury to the Service Provider, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of or in relation to due to any breach of the Services Agreement or resulting from the Service Provider's performance of its obligations under the Services Agreement, except where the Service Provider is negligent.

 

15. Non-Exclusivity

The Client acknowledges that the Service Provider may provide the Services to other clients from time to time during and outside the term of the Service Agreement.

 

16. Protection of the Service Provider's Interests

  1. The Client undertakes that it will not, without the Service Provider's written consent:

    1. interfere with the relationsihp between the Service Provider and its customers, employees, contractors, suppliers and any other client that it may provide Services to;​

    2. encourage, induce or help to induce an employee of the Service Provider to leave their employment; and/or

    3. encourage, induce or help to induce a contractor to terminate or change the nature of their Service Agreement with the Service Provider.

  2. The Client acknowledges that the prohibitions in this clause 16 are reasonable in the circumstances and necessary to protect the goodwill of the Service Provider.

 

17. Entire Agreement

The Service Agreement contains the entire agreement of the parties, and supersedes any and all previous representations, warranties, undertakings, and agreements.  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 the Services Agreement.  Any conditions, warranties or other terms implied by statute or common law are excluded from the Services Agreement to the fullest extent permitted by Law.

 

18. Force Majeure

  1. Neither party has any liability under or may be deemed in breach of the Services Agreement for any delays or failures in performance of the Service Agreement which result from circumstances beyond the reasonable control of that party.

  2. The party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance when they cease to do so.

  3. If such circumstances continue for a continuous period of more than 1 month, either party may terminate the Services Agreement by written notice to the other party.

 

19. Assignment

  1. The Service Provider may assign its rights and interests in the Service Agreement and may delegate its duties under the Service Agreement.

  2. The Client may not assign, delegate, subcontract, mortgage, change or otherwise transfer any or all of its rights and obligations under the Service Agreement without prior written agreement of the Service Provider.

 

20. No Partnership

The Services Agreement does not create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Services Agreement.  Neither party will have, nor represent that it has any authority to enter into contracts or make any commitments on the other parties behalf.

 

21. Severability

If any provision of the Services Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions will, to the extent required, be severed from the Services Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Services Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of the Services Agreement.

22. Notices

Any notice may given by delivering it to the other party as listed in the Services Agreement, or otherwise allowed by law.

 

23. Delivery

  1. The parties may agree on a timetable for delivery of the Services, which also forms part of the Services Agreement.

  2. Delivery preferences consist of: email, electronic document programs (SharePoint, Dropbox, Google Drive), pick up/drop off, standard mail, Express Post delivery, courier services.  There will be no charge for electronic or email delivery.  The Client is responsible for any Australia Post and courier charges, including Express Post delivery, Air Mail and courier fees.

  3. The Service Provider provides no warranty that any result or objective can or will be achieved or attained at all by a given completion date or any other date, whether stated in the Services Agreement, the Services or elsewhere.

 

24. Resonsibility

The Service Provider strives to provide error-free work.  Typographical errors or mistakes which are clearly the fault of the Service Provider will be corrected at no charge.  Any revisions made by the Client with respect to the Services will be charged in accordance with the rate set out in Item 4 of the Service Agreement Schedule.  Final proofreading of any Services performed by the Service Provider is the responsibility of the Client.  The Service Provider is not responsible for any Loss caused to the Client due to the failure by the Client to identify any errors or corrections with any of the Services performed by the Service Provider.

 

25. Law and Jurisdiction

The Services Agreement takes effect, is governed by and will be construed in accordance with the Laws from time to time in Victoria, Australia.

The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

 

26. Payment Guarantee

  1. The Client guarantees to the Service Provider the due and punctual payment of any sum payable by the Client, all mones due to the Service Provider.  Payment may be made by direct deposit to the Service Provider's bank account, or online credit payment as outlined on the Service Provider's tax invoices.

  2. In teh case that the Client is a company, the directors of the Client (Guarantors) jointly and severally acknowledge and agree:

    1. to personally indemnify the Service Provider in respect of any failure by the Client to make any payment, comply or perform any of its obligations under the Service Agreement.​

    2. that they have read, understood and agree to be bound to the terms of the Service Agreement.

  3. The guarantee and indemnity given under this clause is not affected by:

    1. the Service Provider granting any time, credit or indulgence to the Client or the Guarantors;​

    2. the liability of the Client or the Guarantors ceasing due to any cause;

    3. any composition, compromise or arrangement made with the Client or Guarantors;

    4. the release of the Client or the Guarantors;

    5. any change to the Services Agreement or any other agreement relating to the provision of the Services (eg variation, renewal, termination or expiration);

    6. the Client or the Guarantors either passing away, becoming permanently incapaciated, bankrupt or insolvent;

    7. the transfer of the Services Agreement; or

    8. anything which, but for this clause, might determine, discharge or impair the guarantee and indemnity contained in this clause.

  4. The guarantee and indemnity contained in this clause remains in force until all the Guarantor's obligations under the Service Agreement has been satisfied.

  5. The Service Provider may exercise its rights against the Guarantor at any time after the Client fails to comply with the Services Agreement or any other agreement relating to the provision of the Services, without the Service Provider first having to take any action or enforce any of its rights against the Client.

 

27. Contact details

For any questions or notice, please contact us using these details:

Jelena Angus
email - grow@growthadvantage.com.au

phone - (03) 7065 4800

post - PO Box 6117, Croydon North VIC 3136

These terms and conditions were last updated on 13th February, 2022.