Crewe Sharp Pty Ltd (ABN 53 168 907 711) of G2 / 23-27, Wellington Street, St Kilda, Victoria, 3182 (‘CS’)
and:
The Client identified at Item 2 of the Schedule (“Client“)
RECITALS
AGREEMENT TERMS
1. DEFINITIONS
In this Agreement, unless expressed to the contrary:
“Agreement” means this Agreement and its Schedule.
“Business” means the training business conducted by CS from time to time.
“Commencement Date” means the commencement date of this Agreement specified in Item 4 of the Schedule.
“Confidential Information” means all information (whenever it was obtained) regarding the Business, trade secrets and commercially valuable information of CS and its Related Entities, including any information or document which has been provided and/or made available to the Client or which has come to the Client’s attention during its engagement with CS which, from its nature and content, is or would reasonably be expected to be confidential, and which also includes information regarding the business, operations, strategies or personnel, Intellectual Property or other property, or the actual or prospective clients and suppliers of CS or any Related Entity.
“Consequential Loss” means any indirect or consequential loss including, but not limited to loss of revenue, loss of profit, loss of business reputation, loss of opportunities, and/or loss arising from business interruption.
“Intellectual Property” means all present and future intellectual property (and rights associated) in relation to any patent, trade mark or service mark, copyright, registered design, trade secret or Confidential Information or any licence or other right to use or to grant the use of any of the foregoing or to be the registered proprietor or user of any of the foregoing (whether registered or unregistered) owned by CS, whether created, written, developed or brought to existence by CS in provision of the Services or otherwise.
“Fees” means the fees and charges calculated and payable to CS in accordance with this Agreement.
“Loss” means damage, loss, cost, expense, injury or liability, including Consequential Loss.
“Order” means an order for Services (or similar), written or verbal, placed by the Client with CS to undertake Services from time to time.
“Related Entity” or “Related Entities” means all related bodies corporate of CS (as that term is defined in the Corporations Act 2001).
“Services” means the services described in Item 5 of the Schedule (“Services“) and as otherwise described in an Order.
2. TERM OF THIS AGREEMENT
2.1 This Agreement commences on the Commencement Date and continues unless terminated in accordance with this Agreement (“Term”).
In the event that CS continues to provide the Services beyond the Term, the terms of this Agreement shall continue to apply, and this Agreement may be ended by either party on the provision of notice as identified in Item 6 of the Schedule.
3. SERVICES
3.1 CS shall during the Term provide the Services with respect to each Order placed by the Client and accepted by CS during the Term.
CS:
(a) warrants that it and its employees and contractors will be suitably skilled, trained, licenced and competent to perform the Services;
shall ensure that that its employees and contractors shall wear CS provided uniform apparel and prominently display photo identification (as required by CS); and
(b) shall ensure that its employees and contractors undertake all necessary induction and training on an ongoing basis as required by CS from time to time.
3.2 CS shall, in performing the Services:
(a) on receipt of an Order, notify the Client if it is unable to perform the Services contemplated by that Order in a timely manner;
exercise all due skill, care and diligence and in accordance with accepted professional and business practices to the reasonable satisfaction of the Client;
(b) at all times present in a professional manner (including appearance and dress);
comply with all relevant laws, regulations, directions and codes of practice including, but not limited to, occupational health and safety and workplace laws;
(c) comply with all timeframes as detailed in an accepted Order; and
communicate with the Client regarding the progress and completion of Services being performed.
4. SPECIAL CONDITIONS
The special conditions (if any) set out in Item 9 of the Schedule shall apply to, and form part of, the terms of this Agreement.
5. NATURE OF RELATIONSHIP
5.1 CS is engaged by the Client as an independent contractor and nothing in this Agreement constitutes CS to be an employee, agent, partner, or joint ventures of the Client.
Subject to the terms of this Agreement, CS has no authority to incur any obligation on behalf of the Client without the prior written approval of the Client.
5.2 Subject to this Agreement, CS is solely responsible for the manner in which it performs the Services.
6. OCCUPATIONAL HEALTH & SAFETY
In performing the Services CS shall adopt safe work systems, use proper and safe equipment, and provide training, instruction and supervision to its employees and contractors to ensure, so far as is reasonably practicable, a working environment for the Client and its employees that is safe and without risk to health.
7. TERMINATION OF AGREEMENT
Either party may terminate this Agreement at any time on provision of the greater of notice as identified in Item 6 of the Schedule and notice necessary to enable CS to finalise all Services currently being performed, or agreed to be performed, by it to the Client.
8. PAYMENT FOR SERVICES
8.1 In consideration of CS providing the Services, the Client shall pay CS the Fees calculated in accordance with Item 7 of the Schedule and the payment requirements identified in Item 8 of the Schedule.
No Fees will be payable to CS until CS has provided the Client with a tax invoice associated with Services provided.
8.2 In the event that the Client, by written notice, disputes any Fees invoiced (‘Fees Dispute’):
(a) the Client must, at the time it notifies CS of the Fees Dispute, detail to CS its reasons as to why it disputes the Fees invoiced, and provide details of the amount in dispute;
CS and the Client shall seek to resolve the Fees Dispute by consultation; and
(b) in the event the Fees Dispute cannot be resolved within 14 days of consultation, CS may commence legal process (or similar) concerning the Fees Dispute.
8.3 The Client shall not be entitled to withhold payment of any undisputed Fees invoiced pending resolution of the Fees Dispute, whether comprising part of the invoice detailing the Fees disputed or otherwise, and the Client must pay those undisputed Fees invoiced in accordance with this Agreement.
If the Client defaults in making payment in accordance with this Agreement, CS is entitled to require the Client to reimburse to CS all collection costs incurred by CS, including (but not limited to) all legal costs incurred and calculated on a solicitor and client basis, and any other Loss, costs or expenses suffered by CS arising out of a breach of this Agreement.
8.4 CS is entitled to change its Fees as communicated to the Client from time to time.
9. PROTECTION OF CONFIDENTIAL INFORMATION
9.1 Both during and after termination of this Agreement the Client must not disclose, use, or exploit any Confidential Information, other than in accordance with provision of the Services by CS, for either its own benefit or the benefit of any third party, without prior written approval of CS.
Immediately on termination of this Agreement the Client must, unless otherwise received in accordance with provision of the Services by CS, deliver to CS all originals and copies of any Confidential Information in its possession, custody, or control, in addition to all CS property which may be in its possession, custody or control.
10. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
10.1 CS warrants that it owns, or has licence rights to, all Intellectual Property delivered by it in provision of the Services.
The Client recognises that all Intellectual Property in any and all materials provided in the course of provision of the Services are and remain the property of CS, and that it has been granted a non-exclusive, non-transferable licence to use such materials to the extent necessary to proper use of the Services provided.
11. RESTRICTIONS
11.1 The Client agrees that both during this Agreement and within a 12-month period following the cessation of this Agreement, it shall not:
(a) canvas, solicit or entice any CS employee or contractor to terminate their employment or engagement with CS; and/or
employ, engage, retain, or source any CS employee or contractor, with whom it has dealt with in the last 12-month period in connection with provision of the Services, without prior CS’s written consent.
11.2 The Client acknowledges and agrees that the restraints detailed in this clause are reasonably necessary to protect CS and, the Business and its business interests.
Without limiting rights afforded to CS in this clause, the Client agrees that if it breaches any of the restraints detailed in this clause, it will be required to pay an amount up to $8,000 (to be determined by CS) to CS. The Client agrees that this amount represents a genuine pre-estimate of loss to be suffered by CS as a consequence of its breach of the obligations detailed in this clause.
12. LIABILITY
12.1 The only conditions, guarantees and warranties which are binding on CS in respect of the state, quality, condition, suitability, or fitness of the Services are those imposed and required to be binding by law which cannot be expressly excluded.
The total liability of CS to the Client for and all Loss suffered, or to be suffered, by the Client in connection with provision of the Services shall be limited to the cost paid, or payable, by the Client associated with Services provided.
12.2 The Client expressly understands and agrees that CS shall not be liable to the Client for any Consequential Loss which may be incurred by the Client in the provision of the Services other than as provided for in this Agreement.
13. USE OF STAFF & CONTRACTORS AND ASSIGNMENT
13.1 CS may employ staff or engage contractors (or sub-contractors) to perform any of the Services.
CS may assign or otherwise transfer any right or obligation arising out of this Agreement at any time.
13.2 The Client must not assign or otherwise transfer, or attempt to assign or otherwise transfer, any right or obligation arising out of this Agreement, without the written consent of CS.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity, or representation imposed, given or made by a party.
15. FORCE MAJEURE
If for any cause beyond CS’s control, including but without limitation, any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental direction or restriction, CS is prevented from performing the Services, it will be entitled, at its option, to either to extend the time for performance for a reasonable period or to cancel a scheduled Service and, in such a case, the Client will not have any claim for Loss or damages of whatsoever nature.
16. WAIVER
CS’s failure or delay to exercise a power or right does not operate as a waiver of that power or right, and the waiver of a power or right shall be effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
17. SEVERABILITY
Part or all of any clause of this Agreement that is illegal or unenforceable will be severed from this Agreement and the remaining provisions of this Agreement shall continue in force.
18. GOVERNING LAW
This Agreement is governed by the laws of the State of Victoria. The parties submit themselves to the non-exclusive jurisdiction of the Courts of the State of Victoria for all matters arising in connection with this Agreement.
19. AMENDMENT
This Agreement may only be amended or varied in writing signed by the parties.
20. GST
If any supply made by CS under this Agreement or any variation to it is a taxable supply for the purposes of the GST Act, then in addition to any amount of fees expressed as payable to us elsewhere in this Agreement, CS shall be entitled to recover from the Client an additional amount on account of GST, an amount of CS’s GST liability in respect of each supply which will be recoverable at the same time as the amount or fees is payable for any supply.
2022 Crewe Sharp PTY LTD | G02 /23-27 Wellington Street, St Kilda VIC 3182 | P: 03 9510 5299
