BACKGROUND
The Principal owns and uses the Goods.
A. Envoy has the skills, background and experience in providing the Services.
B. The Principal wishes to engage Envoy to provide the Services to the Principal.
C. Envoy is willing to provide the Services and the Principal is willing to appoint Envoy to provide the Services, all in accordance with the provisions of this agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this agreement unless the context indicates otherwise, the following words have the following meanings:
| Defined Term | Meaning |
|---|---|
| Charges | Pursuant to the rates as set out in the Schedule. |
| Claims | Intellectual Property of Envoy which was in existence prior to the commencement of this agreement or which is subsequently developed by Envoy independently of and for purposes unconnected with this agreement. |
| Commencement Date | means the date of this Agreement. |
| Confidential Information | includes any information marked as confidential and any information received or developed by Envoy during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Principal in the course of the Principal’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans. |
| Corporations Act | The Corporations Act 2001 (Cth) |
| Envoy’s Personnel | The employees or agents of Envoy that are to perform the Services pursuant to clause 2(d). |
| Force Majeure Event | any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency. |
| Goods | acoustic booths and/or pods purchased by the Principal from Envoy. |
| GST Law | the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). |
| Loss | all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever. |
| Parties | Envoy and the Principal, and Party means either one of them. |
| Planned Service(s) | the Services provided on a regular, scheduled basis as agreed between the Parties. |
| Services | the maintenance and servicing of the Goods, which is to be provided by Envoy under this agreement. |
| Specification | the details of the Services to be provided throughout the Term of this Agreement. |
| Term | The period commencing on the Commencement Date until the Termination Date. |
| Termination Date | the earlier of: the date of termination of this agreement by the Principal or Envoy; and the date of expiry of this agreement. |
| Unplanned Service(s) | each one-off Service as requested by the Principal provided on a date and time as agreed between the Parties. |
1.2 Interpretations
In this agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
(e) reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
(i) the word “including” (and related forms including “includes”) means “including without limitation”.
2. SERVICES
(a) Envoy will provide the Services to the Principal throughout the Term in consideration for the Principal paying the Charges to Envoy, subject to the provisions of this agreement.
(b) Envoy and the Principal will agree on whether the Services will be Planned Services or Unplanned Services, or both. Prior to the commencement of each Planned Service or Unplanned Service, Envoy and the Principal will agree on the time and place for the performance of the Services.
(c) Envoy will use reasonable endeavours to complete the Services by the dates agreed by the Parties.
(d) The Services will be performed by Envoy’s Personnel that Envoy may choose as most appropriate to carry out the Services as agreed from time to time by the Parties.
(e) The Services to be performed as agreed by the Parties are set out in the Specification.
3. LOCATION
Envoy will provide the Services in places and locations as agreed by the Parties from time to time.
4. CHARGES
4.1 Payment of Charges
(a) In consideration of the provision of the Services in accordance with this agreement, the Principal will pay Envoy the Charges.
(b) Where Envoy’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
(c) The Principal acknowledges that the Charges are exclusive of any GST that may be charged by Envoy to the Principal, and therefore, Envoy will be entitled to add on GST.
4.2 Invoicing
(a) Envoy will provide the Principal with a tax invoice in accordance with the GST Law in relation to Charges payable under this clause 4.
(b) Payment will be made by the Principal to Envoy 7 days after receiving Envoy’s invoice.
(c) When making a payment, the Principal must quote relevant reference numbers and the invoice number.
4.3 Variation of Charges
Envoy is entitled to vary the hourly rates during the Term with written notice to the Principal 14 days prior to the change being implemented.
4.4 Costs and disbursements
Envoy is permitted to charge for all costs and expenses incurred in performing the Services, including but not limited to transportation costs.
4.5 Failure to pay
If the Principal does not make a payment by the due date stated in an invoice or as otherwise provided for in this agreement, Envoy is entitled to do any or all of the following:
(a) charge interest on the outstanding amount at the rate of 2% per year above the base lending rate of a bank as Envoy from time to time may nominate in writing, accruing daily; and
(b) require the Principal to pay, in advance, for any Services (or any part of the Services) which have been requested by the Principal but not yet been performed.
5. SUPPLIER’S PERSONNEL
(a) If the Principal:
i. makes a notice in writing to Envoy; and
ii. has reasonable grounds which have been disclosed and discussed with Envoy,
the Principal may require Envoy to cease to permit a particular person or persons employed by Envoy or acting as agents of Envoy to carry out the Services.
(b) If the Principal makes the requirement referred to in clause 5(a), Envoy must, as soon as it is practicable:
i. cease to allow that particular person or persons to provide the Services; and
ii. provide an alternative person or persons to perform the Services as may be reasonably acceptable to the Principal.
6. PRINCIPAL’S OBLIGATIONS
(a) During the preparation of each Specification, the Principal will:
i. cooperate with Envoy as Envoy reasonably requires;
ii. provide the information and documentation that Envoy reasonably requires;
iii. make available to Envoy uninterrupted access to the area in which the Services are to be carried out as Envoy reasonably requires; and
iv. ensure that the Principal’s staff and agents cooperate with and assist Envoy.
(b) If the Principal does not provide uninterrupted access to the area in which the Services are carried out in a manner and within the time period that Envoy reasonably requires, then any additional costs may be payable by the Principal.
7. NO PARTNERSHIP OR EMPLOYMENT RELATIONSHIP
(a) Nothing in this agreement constitutes the relationship of employer and employee between the Principal and Envoy.
(b) It is the express intention of the Parties that any such relationships are denied.
8. USE OF SUBCONTRACTORS
(a) Envoy is permitted to use other persons to provide some or all of the Services.
(b) Envoy is responsible for the work of any of Envoy’s subcontractors.
(c) Subject to clause 8(d), any work undertaken by any of Envoy’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in this agreement (including as to timing or quality), any Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
9. CONFIDENTIALITY
(a) A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
(b) The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
(c) At the Termination Date, or when earlier directed by the Discloser:
i. all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
ii. the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
(d) The Confidential Information does not include information which:
i. is generally available in the public domain otherwise than as a result of a breach of clause 9(a) by Envoy; or
ii. was known by the Recipient prior to the Discloser disclosing the information to Envoy.
(e) The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.
(f) The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 9 by the Recipient.
(g) The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 9.
(h) The obligations accepted by the Recipient under this clause 9 survive termination or expiry of this agreement.
10. WARRANTIES, LIABILITY AND INDEMNITIES
10.1 Warranties
(a) Envoy warrants that it will use reasonable care and skill in performing the Services.
(b) If Envoy performs the Services (or any part of the Services) negligently or materially in breach of this agreement, including any part of the Specification, then, if requested by the Principal, Envoy will re-perform the relevant part of the Services.
(c) The Principal’s request referred to in clause 10.1(b) must be made within 14 days of the date Envoy completed performing the Services.
10.2 Insurances
Envoy must take out the following insurance:
(a) worker’s compensation insurance as prescribed by law for Envoy’s Personnel; and
(b) public liability insurance for a minimum of an amount to be agreed for each occurrence.
10.3 Compliance with all laws
Throughout the Term, Envoy must comply at its own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. Envoy must indemnify the Principal from and against all actions, costs, charges, Claims and demands in respect of such action, cost, charge, claim and demand.
10.4 Limitation on liability
(a) Except in the case of death or personal injury caused by Envoy’s negligence, the liability of Envoy under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Charges paid by the Principal to Envoy under this agreement. The provisions of this clause will not apply to clause 10.3.
(b) Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any Loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic Loss or other Loss of turnover, profits, business or goodwill.
10.5 No reliance
Each of the Parties acknowledge 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 this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
11. TERMINATION
(a) Either Party may terminate this agreement by notice in writing to the other if the Party notified:
i. fails to observe any term of this agreement; and
ii. fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days’ notice of the breach being given in writing by the notifying Party to the other Party.
(b) Either Party may terminate this agreement immediately upon the happening of any of the following events:
i. if the other Party commits a material breach of the agreement which is incapable of rectification;
ii. if the Principal enters into a deed of arrangement or an order is made for it to be wound up;
iii. if an administrator, receiver or receiver/manager or a liquidator is appointed to the Principal pursuant to the Corporations Act; or
iv. if the Principal would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
(c) Upon termination of this agreement any Charges, expenses or reimbursements payable by the Principal to Envoy in respect of any period prior to the Termination Date must be paid by the Principal within 7 days after the Termination Date.
12. GENERAL
12.1 Force Majeure
(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
(c) If such circumstances continue for a continuous period of more than two months, either Party may terminate this agreement by written notice to the other Party.
12.2 Amendment
This agreement may only be amended in writing signed by duly authorised representatives of the Parties.
12.3 Assignment
(a) Subject to clause 12.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.
(b) A Party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this agreement.
12.4 Entire Agreement
(a) This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.
(b) The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
12.5 Waiver
(a) No failure or delay by Envoy in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
12.6 Further assurance
Each Party to this agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.
12.7 Severance
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.
12.8 Notices
A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this agreement, or sent by email to the email address of the addressee.
12.9 Work, health and safety
Envoy must comply with all relevant work, health, safety and welfare standards and regulations determined by the Principal or as prescribed by legislation.
12.10 Law and jurisdiction
This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.
