Charles Sturt University
Insert Name Here
CONSULTANCY
AGREEMENT
Prepared by
Office of the Vice Chancellor
Corporate Compliance and Legal Services Team
The Grange, Bathurst, NSW, Australia, 2795
Tel: +61 +2 +6338 4200 Fax: +61 +2 +6338 4833
email: legal@csu.edu.au web: www.csu.edu.au/division/vcoffice
Schedule 1 - Consultancy Agreement Details
This Agreement is made up of this Schedule and the Agreed Terms.
Item1
Commencement Date
Insert details here
Item 2
Completion Date
Insert details here
Item 3
Parties
Charles Sturt University (ABN 83 878 708 551) being a university incorporated in
New South Wales under the Charles Sturt University Act 1989 and having its
registered office at The Grange, Panorama Avenue, Bathurst, NSW 2795 (CSU)
Insert name and details here
(Consultant)
tem 4
Consultant’s Personnel
Insert details here
Item 5
Services
Insert details here
Item 6
Consultancy Fees
Insert details here
Item 7
Expenses
Insert details here
Item 8
Time and Method of
Payment
Insert details here
Item 9
Timetable for
Consultancy
Insert details here
Item 10
Insurance
(a)
Public Liability Insurance
Insert amount
(b)
Workers Compensation Insurance
Insert amount
(c)
Professional Indemnity Insurance
Insert amount
Item 11
Intellectual Property
The Intellectual Property arising from the Services will be:
(a)
owned by CSU; OR
(b)
owned by the Consultant and licensed to CSU.
(You must select (a) or (b) and delete whichever does not apply)
Item 12
Notices
Addresses for notices are as follows
CSU – University Secretary
The Grange
Panorama Avenue
Bathurst, NSW 2795
Consultant – Insert details here
Executed as an Agreement.
The signatories hereby personally warrant that they have express and sufficient legal
authority to execute this Agreement (which includes the attached Agreed Terms) on behalf
of the party on whose behalf they have signed.
Signature for CSU
SIGNED for CHARLES STURT
UNIVERSITY in the presence of
)
)
)
Signature
Signature of witness
Name (print)
Name of witness (print)
Position (print)
Date signed
Date signed
Signature for Consultant
SIGNED for
)
in the presence of
)
)
Signature
Signature of witness
Name (print)
Name of witness (print)
Position (print)
Date signed
Date signed
Agreed Terms – Consultancy Agreement
1
Definitions and Interpretation
1.1
Definitions
In this document unless the context otherwise requires:
Agreement means this Agreement and any Schedule or Appendix attached to this Agreement
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South
Wales.
Business Hours means 9 am to 5 pm, Monday to Friday, excluding public holidays.
Confidential Information means:
(a)
all information (in whatever form) relating to the Disclosing Party or its business provided to the
Recipient (or its employees, agents, representatives or advisers) or to which the Recipient (or
its employees, agents, representatives or advisers) is given or gains access to before or after
the date of this Agreement;
but excludes information that (other than through a breach of this Agreement or any other obligation of
confidentiality by the Recipient)
(a)
is generally available to the public;
(b)
the Recipient can clearly show was independently known by it prior to disclosure under this
Agreement.
Disclosing Party means the party disclosing their Confidential Information to the other party.
Fees means any money due and payable to the Consultant for the Services as set out in Item 5 of
Schedule 1.
GST means any tax levied pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) as
amended from time to time.
Intellectual Property means:
(a)
any intellectual, industrial or commercial information, property or rights of a proprietary nature
(whether in material form or not), including without limitation:
(b)
(i)
any copyright, patent, petty patent, design, trade mark, service mark, domain name,
semiconductor, circuit layout, plant variety, confidential information, trade secret, knowhow, database; or
(ii)
any rights protected or recognised under any laws related to the above or any similar
laws; and
any thing (whether in material form or not) copied or derived from the above property or rights.
Item means an item in the Schedule to this Agreement.
Recipient means the party receiving the Confidential Information of the other party.
Services means the services set out in Item 5 to be provided by the Consultant to CSU in accordance
with the timetable set out in Item 9.
Term means the period specified in clause 2.
2
Term
(a)
This Agreement commences on the date specified in Item 1 and ends on the date specified in Item
2.
(b)
The parties may, at any time before the Term expires, extend the term for a further term to be
agreed between them in writing. This Agreement will then apply to that extended term.
Consultancy Agreement
Page 1
3
Appointment
CSU appoints the Consultant, and the Consultant accepts the appointment, as CSU's consultant to
provide the Services.
4
Services
4.1
Performance
The Consultant will perform the Services:
4.2
(a)
with due care, skill and diligence to a professional or industry best practice standard and in a
timely manner; and
(b)
in accordance with standards imposed by law; and
(c)
in a manner that will not adversely affect or bring into disrepute the reputation of CSU.
Compliance with CSU rules, regulations and policies
If the Consultant is required to provide the Services or any part of the Services within any lands or
buildings owned or occupied by the University, then the Consultant must comply with CSU’s rules,
regulations and policies, including, without limitation, those relating to:
4.3
(a)
Occupational health and safety; and
(b)
Emergency drills and procedures; and
(c)
Discrimination and harassment; and
(d)
Parking and traffic; privacy and personal information; and
(e)
Use of the CSU’s equipment or facilities.
Personnel
(a)
The Consultant will ensure the people listed in Item 4 will perform the Services.
(b)
If CSU, acting reasonably, is not satisfied that any of the Consultant’s Personnel are performing
the Consultant’s obligations properly, CSU may, by notifying the Consultant 14 days in advance,
require the Consultant to substitute the Consultant’s personnel with a person acceptable to the
University.
(c)
If any of the specified personnel cannot perform the Services, the Consultant will inform CSU as
soon as possible. Within 5 days of notifying CSU of the unavailability of the specified person the
Consultant will find a replacement of equivalent expertise acceptable to CSU.
(d)
If the Consultant fails to provide acceptable replacement personnel in accordance with clause
5.3(b) or (c), CSU may terminate this Agreement by giving the Consultant 14 days written notice.
5
Payment
5.1
Fees
5.2
(a)
CSU will pay to the Consultant the Fees at the times and in the manner set out in Item 6.
(b)
The Fees are inclusive of GST.
Expenses
CSU will reimburse the Consultant for expenses necessarily incurred in performing the Services and
approved by CSU, as described in Item 7, within 30 days of presentation by the Consultant of a valid Tax
Invoice together with documentation substantiating the expense that is acceptable to CSU.
5.3
No other entitlements
CSU is not liable to pay the Consultant for any amount not included in the Fees or the Expenses,
including, without limitation, any tax, government or statutory charge.
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5.4
Invoices
Any invoice issued by the Consultant must include details of:
6
7
(a)
The amount payable
(b)
The goods or services and the period of time to which the invoice relates
(c)
the full name, address and ABN of the Consultant
(d)
the full name and address of CSU
(e)
any additional information required by law or pursuant to Australian Taxation Office Guidelines to
qualify as a tax invoice for the purposes of GST.
Insurance
(a)
The Consultant must effect and maintain the insurance policies set out in Item 10 throughout the
term of the Agreement and any other insurance policy required by law in connection with the
provision of the Services.
(b)
The Consultant must:
(i)
provide CSU with evidence that it has complied with clause 7(a) on request;
(ii)
pay all insurance premiums on time;
(iii)
notify CSU immediately if an insurance policy required under clause 7(a) is cancelled.
Relationship of Parties
The Consultant acknowledges that the relationship is that of an independent contractor and the
Consultant is not:
8
(a)
and must not hold itself out to be, an agent, employee, partner, joint venturer or otherwise
associated with CSU;
(b)
to have, or hold itself out as having, the authority to pledge the credit of CSU;
(c)
to accept orders or otherwise contractually bind or enter into any agreement or arrangement in the
name of or otherwise on account of CSU, or to hold itself out as having the authority to do so; or
(d)
to make, in the name of CSU, any representation or statement, express or implied, and whether
oral or in writing, in relation to CSU.
Confidentiality
(a)
(b)
In relation to the Disclosing Party's Confidential Information, the Recipient must:
(i)
keep the Confidential Information confidential;
(ii)
ensure the Confidential Information is kept secure and follow any reasonable directions
of the Disclosing Party in relation to the security of the Confidential Information;
(iii)
use its best efforts to notify the Disclosing Party immediately if it becomes aware of any
unauthorised use or disclosure of the Confidential Information;
(iv)
not disclose or provide the Confidential Information to anyone, except as expressly
permitted under this document; and
(v)
co-operate in any investigation, litigation or action which the Disclosing Party may take,
or be involved in, in relation to the confidentiality of the Confidential Information.
The Recipient may only disclose the Disclosing Party's Confidential Information to:
(i)
its employees, agents, representatives or advisers who have a need to know and that
the Recipient has ensured have agreed to comply with the confidentiality obligations in
this document;
(ii)
its contractors, subcontractors, consultants or others who have a need to know and
have signed confidentiality undertakings to comply with the confidentiality obligations in
this document.
Consultancy Agreement
page 3
(c)
The Recipient's obligations of confidentiality apply indefinitely beyond the end of this Agreement.
9
Intellectual Property
9.1
Ownership by CSU
If Item 10 specifies that CSU will own all the Intellectual Property in connection with or arising from the
Services then the Consultant:
9.2
(a)
Assigns to CSU all existing and future Intellectual Property created by the Consultant in the course
of providing the Services;
(b)
Agrees that by virtue of this clause, all existing Intellectual Property is vested in CSU and, on its
creation, any future Intellectual property will automatically vest in CSU;
(c)
Must, at the Consultant’s own cost, do all things reasonably requested by CSU to give effect to its
rights under this clause 9.1.
Licence to CSU
If Item 10 specifies that the Consultant will grant CSU a licence of Intellectual property in connection with
or arising from the Services, then the Consultant grants CSU an irrevocable, perpetual, royalty-free, nontransferable and non-exclusive licence to use, reproduce or modify any Intellectual Property for the
purpose described in Item 10.
9.3
Warranty
The Consultant warrants that:
10
(a)
Any dealing with the Intellectual Property as contemplated by clause 9.1 or 9.2 (whichever
applies) does not infringe the intellectual property rights of any third party;
(b)
With respect to any licence they grant under clause 9.2:
(i)
they are the sole owner of that Intellectual Property and have the authority to grant the
licence; or
(ii)
they have the express written authority from all the relevant owners or licensees of that
Intellectual Property to grant the licence; and
(iii)
the licence is not inconsistent with, and does not infringe, any other licence that has
been or could be granted to any third party.
Termination
(a)
CSU may terminate this Agreement by written notice if the Consultant becomes bankrupt or
insolvent, or enters into a scheme or arrangement with its creditors.
(b)
Either party may terminate this Agreement by written notice if the other party breaches a term of
this Agreement and such breach is not remedied within 28 days of receipt of written notice
specifying the nature of the breach.
11
Indemnity
11.1
General Indemnity
The Consultant indemnifies CSU against any claim, liability, loss or damage CSU suffers, directly or
indirectly, because of the Consultant’s act, failure to act, negligence or default in connection with the
Services and this Agreement.
11.2
Limitation
The Consultant is not liable to indemnify CSU to the extent that CSU's conduct, breach, negligence or
failure to mitigate any loss contributed to the loss or damage suffered by CSU.
11.3
Nature and scope
The indemnities in this Agreement:
(a)
Are continuing and independent obligations
Consultancy Agreement
page 4
(b)
Survive termination or expiry of this Agreement
(c)
Include the indemnified party’s reasonable legal costs on a full indemnity basis.
12
Dispute Resolution
12.1
Notification, negotiation and mediation
12.2
(a)
A party must not begin legal action (except urgent interlocutory relief), unless that party has
complied with this clause.
(b)
A party claiming that a dispute has arisen must notify the other party specifying details of the
dispute.
(c)
Each party must refer a dispute to an authorised officer for consideration and use its best efforts to
resolve the dispute through negotiation.
(d)
If the dispute has not been resolved within seven (7) Business Days following the dispute
notification or longer period agreed between the parties, the dispute must be referred to an expert
mediator agreed between the parties, or if the parties cannot agree, a mediator appointed by the
Australian Commercial Disputes Centre in Sydney.
(e)
If the dispute has not been resolved within (10) Business Days of being referred to the mediator,
then either party may terminate the mediation process by written notice to the other party.
Confidentiality and costs
The parties agree:
(a)
That any information provided for the purposes of resolving any dispute under this clause is to
remain strictly confidential and may only be used for the purpose of settling the dispute; and
(b)
To share equally the costs in connection with retaining a mediator under this clause.
13
General
13.1
Document subject to applicable laws
The provisions of this document (including all rights, obligations, exclusions and limitations) apply only to
the extent permitted under applicable laws.
13.2
Amendment
Any amendment to this document must be in writing and signed by both parties.
13.3
Assignment and novation
A party must not assign or novate any of its rights, obligations or interest under this document without the
prior written consent of the other party.
13.4
Counterparts
This document may be executed in any number of counterparts and, when all counterparts have been
executed and exchanged in the same form, they will make up a single document.
13.5
Entire agreement
This document is the entire agreement between the parties in relation to its subject matter, and replaces
all previous agreements, understandings and arrangements in relation to the same subject matter.
13.6
Governing Law and jurisdiction
This document is to be governed by, and construed in accordance with, the laws of New South Wales
and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales
and courts of appeal of those courts.
13.7
Notices
Any notice to be given under or in connection with this document must be given in writing, in English, and
posted, hand delivered or faxed to the intended recipient at the address or number specified in Item 11.
Notices given in this way will be deemed received five (5) Business Days after posting (if posted), on
Consultancy Agreement
page 5
delivery (if hand delivered during Business Hours), or when the sender's fax machine confirms that all
pages of the fax were properly transmitted (if faxed).
13.8
Severance
Any provision of this Agreement, which is invalid or unenforceable shall be deleted from this Agreement
and the remaining terms of the Agreement shall continue in full force and effect.
13.9
Waiver
A waiver of any breach or non-performance of this document will only be effective if it is written and
signed by the party giving the waiver, and only to the extent specified.
13.10
Additional rights
The rights of a party under this document are additional to and do not derogate from any rights at
general law.
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