Consulting Services Master Agreement

 

Steve Liliopoulos (SL) is a provider of consulting services for information technology products, services and support. The client wishes to engage with SL to procure one or more Products, Services or support from SL.

1            DEFINITIONS

Business Day means any day other than Saturday, Sunday or a gazetted public holiday in NSW.

Commencement Date means the commencement date referred in a Statement of Work.

Confidential Information means either party’s Intellectual Property Rights and know how and any information that is by its nature confidential, is designated by a party (the Disclosing Party) to be confidential or a party (the Receiving Party) knows or ought to know is confidential, including but not limited to any:

(a)         information regarding the current or future business or affairs (including accounting procedures, financial information, internal management, structure, policies, methodology, strategies, business plans, sales, products and advertising, marketing or promotional activities);

(b)        information regarding clients or customers; and

(c)         all inventions, technical data, research and development information, engineering or other data, designs, specifications, trade secret, know how, process, formulae, methodology, planning material, project material or concepts

of a Disclosing Party, but does not include: (i) information that the Receiving Party is legally required to disclose or which is or becomes public knowledge other than through a breach of this Agreement; (ii) information that a Disclosing Party may have to make in compliance with Relevant Law, rules and regulations of stock exchanges and related securities laws; (iii) information disclosed lawfully to a Receiving Party by a third party who is free lawfully to disclose the same; (iv) information that is developed independently by a Receiving Party; (v) or information that is already in the possession of a Receiving Party and is not subject to an existing agreement of confidence between the parties.

Expenses has the meaning given in clause 3.1(b).

Fees means the fees payable to SL set out in a Statement of Work.

Force Majeure Event means a circumstance beyond the reasonable control of a party which occurs without the fault or negligence of the party affected and without prejudice to the generality of the foregoing, includes:

(a)         fire, flood, earthquake, utility failures, elements of nature or act of God, riot, civil disorder, rebellion or revolution, acts of war or terrorism; and

(b)        failure of public services (including the internet), absence of raw material supplies, plant breakdowns and the like,

provided that a circumstance which affects a party’s ability to meet its obligations to make payments pursuant to this Agreement will not be an Force Majeure Event in relation to such obligations.

GST means a goods and services tax imposed under a New Tax System (Goods and Services Tax Act) 1999 (as amended) (GST Act) and related laws, a consumption tax, value added tax, retail turnover tax, or a tax of a similar nature.

Intellectual Property Rights means present and future rights conferred by statute, common law or equity in or in relation to any copyright, author’s rights (including moral rights), trademarks, designs, patents, circuit layouts, inventions and other results in intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

Key Persons means the person(s) set out in a Statement of Work and any replacement from time to time.

Relevant Law means any statute, ordinance, code or the like applicable in the jurisdiction in clause 10.7.

Services means the services to be performed by SL set out in a Statement of Work.

Site(s) means the site(s) where SL is required to perform the Services as set out in a Statement of Work.

Software means any software required for the Services that must be licensed by Client pursuant to licence agreements between the Client and the owners of the Software.

Statement of Work means a document signed by the parties during the Term substantially in the form of Schedule 1.

Tax Invoice means an invoice or adjustment note in the form required by the GST Act and/or by law, which identifies the amount and calculation of the GST payable in respect of the relevant payment.

Term means an initial period of three (3) years from the date of this Agreement (Initial Period). The Initial Period may be renewed for successive one (1) year terms upon written agreement between the parties.

2            APPOINTMENT

2.1      Appointment

Client appoints SL to perform the Services in accordance with and subject to this Agreement and each relevant Statement of Work. This Agreement commences on the date of this Agreement and continues for the Term unless terminated earlier under clause 7.

2.2      No Exclusivity

Nothing in this Agreement prevents SL from performing services for any other organisation whatsoever.

2.3      Key Persons

Each party will use its reasonable endeavours to ensure that its Key Person(s) are available to perform the Services. Should SL’s Key Persons become unavailable, SL shall be entitled to replace such Key Person with another individual with similar skills and experience as the Key Person.

3            PAYMENT

3.1      Fees & Invoices

(a)         Frequency of Invoices

(i)           In the case of a time and materials Project, SL will invoice Client twice a month on the fifteenth day and last day of the month for the Services performed for the corresponding half-month periods. Payment of any invoice issued by SL will be due to be paid by Client within 30 days from its date.

(ii)         In the case of a milestone based Project, SL shall invoice Client for the Services upon completion of each milestone as set out in the relevant Statement of Work. Payment of any invoice issued by SL will be due to be paid by Client within 30 days from its date.

(b)        Unless otherwise stated in a Statement of Work, Client will reimburse SL for all expenses reasonably incurred by SL in the performance of the Services including without limitation all travel, accommodation and telecommunication expenses (Expenses).

(c)         If Client fails to pay an invoice within 30 days of its date, SL may, in its sole discretion, suspend, cancel or withdraw the performance of the Services in whole or in part until the outstanding invoice(s) has been paid in full.

(d)        Client shall be liable to SL for all costs and disbursements incurred by SL for recovery of any debts not paid by the due date including any legal costs on a solicitor/client basis.

3.2      GST

(a)         In addition to the Fees and Expenses, Client must pay to SL an amount equivalent to the GST (calculated in accordance with this paragraph) at the time that Client is required to pay the Fees and Expenses. The amount of GST is calculated by multiplying the Fees payable by the prevailing GST rate.

(b)        SL agrees to give Client a Tax Invoice in accordance with the supply that requires GST to be paid.

4            OBLIGATIONS

4.1      Client Obligations

(a)         Client acknowledges that SL’s timely performance of any Service is dependent on timely decisions and approvals of Client and that any delay in Client’s decisions or approvals will result in a delay to the due date of the Services and may result in ongoing Fees being charged during the delay.

(b)        SL shall be entitled to rely on all decisions and approvals communicated by any representative of Client including, any Client Key Persons.

(c)         Client must provide SL with: (i) access to resources, personnel and information that SL requires to perform the Services; and (ii) full and free access to the Client’s computer system.

(d)        If a Statement of Work or any proposal specifies that Client is to perform any obligations relating to the Services, Client will perform all such obligations within the timeframe provided or, if no timeframe is provided, promptly and without delay;

(e)         If the acquisition of Software is required for the Services to be performed, Client will purchase sufficient licences of such Software, prior to the commencement of the Services;

(f)         Client will comply with all laws, by-laws and notices which affect the provision of on-site services.

(g)         Client warrants that it has, and for the time that Services are being performed by SL, will maintain all necessary ownership or licence rights in all hardware and other software not supplied by SL but for which SL is required to use or modify for the purpose of performing the Services, and in relation to that hardware and software, Client will indemnify SL against all damages and liability including all related costs and expenses associated with defending any claims of violation of third party property rights in relation to the Client’s hardware and software.

(h)        Client acknowledges and accepts that it is solely responsible for its data, including the accuracy and validity of its data and errors in results attributable to the data, and any data migration and necessary data corrections, and Client will be responsible for its own testing and acceptance of the Services, and internal end-user or management training that is not specified in a Statement of Work to be performed by SL.

(i)          Unless otherwise agreed in writing, the Client will be responsible for all hardware and network infrastructure set-up and maintenance, support, documentation, systems security including the implementation, maintenance and update of anti-virus protection and other security procedures, related to data backup, storage, Internet and network connectivity, cabling, power supply and physical environment control.

4.2      SL Obligations

SL it will perform the Services:

(a)         in a professional manner;

(b)        with all due care, skill, judgment and diligence; and

(c)         in compliance with all Relevant Laws;

5            INDEMNITY

5.1      Indemnity

(a)         Subject to clauses 5.2 and 5.3, SL indemnifies Client on demand against all losses, damages, liabilities, claims and expenses (including to reasonable legal costs) incurred by Client arising out of or in connection with any infringement of the Intellectual Property Rights of a third party by SL, provided that SL is given prompt written notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim. For the avoidance of doubt, this indemnity does not apply to any infringement of Intellectual Property Rights arising from third party products, software, hardware or materials.

(b)        Client indemnifies SL on demand against all losses, damages, liabilities, claims and expenses (including to reasonable legal costs) incurred by SL arising out of or in connection with any infringement of the Intellectual Property Rights of a third party by Client or any breach of this Agreement by Client.

5.2      Contribution

Any amount claimed by Client pursuant to the indemnity in clause 5.1 will be reduced proportionally by any amount attributable to any loss, damage, liability, claim or expense that is caused or contributed to by Client or any of its associated entities, employees or representatives.

5.3      Survival

The indemnity in clause 5.1 is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for a period of one (1) year following termination.

5.4      Limitation of Liability

(a)         In no event shall SL be liable for any indirect or consequential loss, loss of profit (whether based on contract, tort (including negligence), statute or any other legal theory), loss of revenue or any other special or punitive damages arising in connection with this Agreement even if SL has been advised of the possibility of such loss.

(b)        To the full extent permitted by applicable law, SL’s total, cumulative liability under this Agreement or any Statement of Work (regardless of the basis of the claim, including contract, statute, negligence and gross negligence) will be an amount which is one (1) times the Fees paid to SL with respect to the relevant Statement of Work under which the liability arose.

(c)         Any action against SL must be brought within one (1) year of when the cause of action accrued.

6            REPRESENTATIONS AND WARRANTIES

6.1      Mutual Warranties

Each party represents and warrants to the other that they:

(a)         are validly existing under the laws of their place of incorporation and have the power and authority to carry on their business;

(b)        have power to enter into and perform their obligations under this Agreement; and

(c)         the authorised representative who executes this Agreement and any Statement of Work has the power and authority to do so on behalf of each respective party.

6.2      No Third Party Warranties

(a)         SL makes no representations or warranties with respect to any third party software, hardware or materials (Third Party Products) incorporated into, or used in conjunction with, the Services, and SL will not be liable to Client for any claims, actions, losses, expenses, costs or damages whatsoever in relation to any Third Party Products including without limitation the Software.

(b)        Client shall be required to obtain licences directly with the owners of any Software.

6.3      Non Reliance & No Implied Warranties

(a)         Client acknowledges that it has not relied on any statement or representation made by SL or any of its representatives in the course of negotiations or discussions leading to or arising out of this Agreement and to the maximum extent permitted by law, must not make, and waives any right it may have to make any claim against SL in connection with or arising out of this Agreement under section 52 of the Trade Practices Act 1974 (Cth) (as amended) any similar provision of any other legislation.

(b)        To the extent possible by law, SL disclaims all implied warranties.

7            TERMINATION

7.1      With Cause

Either party may terminate this Agreement immediately by written notice, and without liability, if:

(a)         the other party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or

(b)        a party materially breaches any provision of this Agreement and if capable of remedy, the breach is not remedied within 21 Business Days of being notified of the breach. For the avoidance of doubt, the non-payment of any invoice by Client within 30 days of its date shall be a material breach for the purpose of clause 7.1(b).

7.2      Consequences of Termination

Upon termination Client must promptly pay to SL all amounts due to SL up to the termination date.

8            INTELLECTUAL PROPERTY

8.1      SL’s Confidential Information

Client acknowledges that SL owns all Intellectual Property Rights in SL’s Confidential Information and any methodology, processes, planning material, project material and any know how used in performing the Services (SL Methodology).

8.2      IP Ownership

(a)         Subject to clause 8.1 and 8.2(b), SL hereby assigns to Client all Intellectual Property Rights in any work product created by SL in the performance of the Services upon receipt by SL of full payment of the Fees and Expenses.

(b)        SL does not assign any Intellectual Property Rights in any third party software, hardware or materials incorporated into, or used in conjunction with the Services or any SL Methodology.

9            CONFIDENTIAL INFORMATION

9.1      General obligations

Each party must advise the other promptly if the party becomes aware of any third party actually or potentially acquiring, disclosing or using any Confidential Information in a manner which is likely to infringe the other party’s rights.

9.2      Protection of Confidential Information

Each Receiving Party must:

(a)         take all reasonable steps to ensure that its representatives (including employees and consultants) engaged for the purposes of this Agreement, do not make public or disclose the Disclosing Party’s Confidential Information;

(b)        ensure that security at its premises is adequate to prevent unauthorised access to the other party’s Confidential Information in that party’s power, possession or control; and

(c)         furnish to the disclosing party, promptly on demand by the disclosing party, all media embodying any of the disclosing party’s Confidential Information, and all other media which has been provided to a party by the Disclosing Party.

10         MISCELLANEOUS

10.1    No Solicitation

Client, any of its representatives or affiliates will not directly or indirectly, during the Term and for a period of one (1) year following the termination or expiry of this Agreement, solicit for employment or advise or recommend to any other person that they solicit for employment, any employee or contractor of SL.

10.2    Force Majeure Event

If a Party is affected, or likely to be affected, by a Force Majeure Event, the obligations of the Party are suspended to the extent to which they are affected by the Force Majeure Event as long as the Force Majeure Event continues.

10.3    Inconsistency

If there is any inconsistency between this Agreement and any Statement of Work, the provisions of this Agreement shall prevail to the extent of the inconsistency.

10.4    Relationship

Nothing in this Agreement will be taken to constitute either party as an employee, agent, partner or joint venture of the other.

0.5    Set Off

Client may not set off or deduct any amount owing to it from SL from amounts payable by Client to SL.

10.6    Assignment

Client must not assign, transfer, novate, encumber or otherwise deal with all or part of its rights or obligations under this Agreement without the other parties’ prior written consent.

10.7    Waiver and Exercise of Rights

A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right.

10.8    Counterparts

This Agreement may consist of a number of counterparts and the counterparts taken together constitutes one and the same instrument.

10.9    Governing Law and Jurisdiction

This Agreement is governed by the laws of NSW.  Each party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the courts of NSW and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

10.10 Entire Understanding

This Agreement embodies the entire understanding and agreement between the parties as to the subject matter of this document. All previous negotiations, explanations, understandings, representations, warranties, memoranda, commitments or information provided in relation to, or in any way affecting, the subject matter of this document are merged in and superseded by this Agreement and will be of no force or effect whatsoever and no party will be liable to any other party in respect of those matters.