Service Agreement Terms & Conditions

NOW IT IS HEREBY AGREED as follows:

1.1 In this Contract, unless the contrary intention appears:

‘Services’ means the services described in the Schedule 1 [Services provided].

‘The Contractor’ shall, where the context so admits, include the officers, employees, agents, and subcontractors of The Contractor.

‘The Sub-Contractor’ is a 3rd party person or business engaged by The Contractor to execute services (in part or whole) described in Item A of Schedule 1 [Services]

‘Contract Material’ means, subject to clause 5 [Contract Material], all Material:

(a) brought into existence for the purpose of performing the services.

(b) incorporated in, supplied, or required to be supplied along with the Material referred to in paragraph (a); or

(c) copied or derived from Material referred to in paragraph (a) or (b).

(d) including documents, equipment, software, goods, information, and data stored by any means; particularly including (but not necessarily exclusively) the material described in Item B of Schedule 1 [Contract Material].

‘Intellectual Property’ includes all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered designs.

1.2 In this Contract, unless the contrary intention appears:

a) words in the singular number include the plural and words in the plural number include the singular; and

b) words importing a gender include any other gender; and

c) words importing persons include a partnership and a body whether corporate or otherwise; and

d) clause headings, words capitalized or in bold format and notes in square brackets (“[]”) are inserted for convenience only, and have no effect in limiting or extending the language of provisions, except for the purpose of rectifying any erroneous cross-reference; and

e) all references to clauses are clauses in this Contract; and

f) all references to dollars are to Australian dollars and this Contract uses Australian currency; and

g) where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.

3.1 Item D of Schedule 1 [Invoice Procedures] provides that The Contractor is to be paid by monthly payments.

3.3 The Contractor shall submit invoices for payment in the manner specified in Item D of Schedule 1 [Invoice Procedures].

3.4 If an invoice is found to have been incorrectly rendered after payment, any underpayment shall be recoverable by The Contractor.

3.5 If any monies due to The Contractor remain unpaid after the date on which they should have been paid, The Contractor is entitled to be compensated for the loss suffered by reason of the withholding of those moneys. Compensation will be charged by The Contractor at 10% of the outstanding amount for loss suffering for withholding these monies.

3.6 The Customer will ensure that none of the schedules of service outlined in Schedule 1 are inhibited by the Customer not providing required information, feedback or content to the Contractor that will hold up the project development milestones and limit the Contractor’s capacity to complete the tasks. The Contractor reserves the right to invoice a milestone (if completed or not completed) if the Customer has not provided information, feedback, or content to the Contractor within a period of 4 weeks after the milestone date.

4.2 No agreement or understanding varying or extending this contract, including in particular the scope of the Services in Item A of Schedule 1 [Services], shall be legally binding upon either party unless in writing and signed by both parties.

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6.1 Subject to this clause, Intellectual Property in all The Customer Contract Material vests immediately in The Contractor until the completion and payment in full of the project.

6.2 For contractor or third-party products or solutions all intellectual property associated with these products remains the property of The Contractor or the third party with legal copyright over the product or service. The Customer may make modifications but cannot re-sell any product or solution.

6.3 Notwithstanding clause 6.1 and 6.2, The Customer acknowledges that there is no assignment of intellectual property rights in:

a) any pre-existing material (including but not limited to the supplier’s software, documentation, templates and data) which is incorporated into, or which has been used in the course of developing the website; or

b) the browser interface of the website.

7.2 The Contractor shall not, without the prior written approval of The Customer, disclose to any person other than The Customer, any information or current or future product that is confidential to The Customer.

7.3 This clause shall survive the expiration or termination of this Contract.

8.2 The Customer shall have the following responsibilities:
provision of any information, ideas or suggestions which are to be expressly considered by The Contractor in undertaking the project; ensuring that any Contract Material (including all project materials defined in Schedule B) information, data or related materials provided to the Contractor for this project do not infringe the intellectual property rights of any third party.

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9.1 The Contractor may, at any time by written notice, terminate this Contract, in whole or in part, if The Customer is found to be in breach of the Contract. If this Contract is so terminated, The Customer shall be liable for:

a) payments due and payable under the payment provisions of this Contract for services rendered before the effective date of termination; and

b) subject to clauses 9.3 any reasonable costs incurred by The Contractor and directly attributable to the termination or partial termination of this Contract.

9.2 Upon notice of termination The Contractor shall: 

a) stop work as specified in the notice.

b) take all available steps to minimise loss resulting from that termination and to protect Contract Material; and

c) continue work on any part of the Services not affected by the notice. 

In the event of partial termination The Customer’s liability to pay fees under Item D of Schedule 1 [Invoice Procedures] shall, in the absence of agreement to the contrary, abate proportionately to the reduction in the Services. 

10. 2 Where the default is capable of being remedied, a party shall not exercise its rights of termination under clause 10.1 unless it has first given to the other party notice in writing specifying the default and requiring the other party to remedy it within the time (being not less than 10 working days) specified in the notice and the default is not remedied within the time allowed.

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13. Any dispute or difference whatsoever arising out of or in connection with this Contract shall be resolved as follows:

a) The parties shall first refer the Dispute to mediation by a mediator agreed by the parties or failing agreement appointed by the President of the Queensland Law Society on the terms of the standard mediation agreement approved by the Queensland Law Society.

b) The reference shall commence when any party gives written notice to the other specifying the Dispute and requiring its resolution under this clause.

c) If a Dispute is not settled by the parties within 10 working days of one party first sending to the other party written notice that they are in dispute, the Dispute may be the subject of court proceedings or may be submitted to some alternative dispute resolution mechanism as may be agreed in writing between the parties.

d) Notwithstanding the existence of a Dispute, each party shall continue to perform its obligations under this Contract.

e) A party may commence court proceedings relating to any Dispute arising from this Contract at any time where that party seeks urgent interlocutory relief. This clause shall survive the expiration or termination of this Contract.

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14.1. Each provision of this Contract and each part thereof shall, unless the context otherwise necessarily requires it, be read and construed as a separate and severable provision or part. If any provision or part thereof is void or otherwise unenforceable for any reason, then that provision or part (as the case may be) shall be severed and the remainder shall be read and construed as if the severable provision or part had never existed.

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15.1. This Contract shall be governed by and construed in accordance with the laws of the State or Territory nominated in Item E of Schedule 1 [Applicable Law] and the parties agree, subject to this Contract that the Courts of that State or Territory shall have jurisdiction to entertain any action in respect of, or arising out of, this Contract.

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16.1. All images, logos, content, or other material provided by The Customer must not be in breach of copyright legislation or misleading, and The Contractor accepts no liability for the use of this material. If The Contractor writes, constructs, manipulates any images, content or other material for The Customer, then The Contractor accepts no responsibility for any misleading information or breach of copyright that the information may contain.

16.2. Images and other material supplied by The Contractor in the process of the website development shall not breach any copyright legislation. The Customer will not be held liable in such case where it is proven that The Contractor has unlawfully used copyrighted materials.