Charles Sturt University
Insert Name Here
CONSULTANCY
AGREEMENT –
[Insert descriptor/title of consultancy]
Schedule 1 – Consultancy Agreement Details
This Agreement is made up of this Schedule and the Agreed Terms
Item 1
Commencement
Date
Insert date here
Item 2
Completion
Date
Insert date 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, ABN, description (if applicable) and address
(Consultant)
Item 4
Consultant’s
Personnel
Insert details here
Item 5
Services
Insert details here (please include an adequately detailed description and/or refer to attached
proposals/submissions which describe the Services, as CSU needs to be able to hold the Consultant
accountable for performing the Services as described. If particular standards apply they should also be
included in the Agreement.)
Item 6
Fees
Insert details here (examples set out below)
[Option 1 for a contract for services with stages that have key Milestones and/or Deliverables]
Fees payable on the invoicing dates set out below, subject to the requirements of clause 5:
Target Dates
Milestones
Fee
1.
$
2.
$
3.
$
4.
$
Total
$
*All figures are GST exclusive.
[Option 2 for a contract to perform services at a fixed rate for either (i) agreed periodic instalments
over an agreed term or (ii) a fixed lump sum]
[(i) for agreed periodic instalments over an agreed term]
$"Click & Insert $ Amount" (GST exclusive) payable each [insert day/ half day/hour/week/month],
beginning on the Commencement Date, subject to a maximum total Fee of $"Click & Insert $ Amount" ,
subject to the requirements of clause 5.
OR
[(ii) a single fixed lump sum]
$"Click & Insert $ Amount" (GST exclusive) payable [insert date], subject to the requirements of clause 5.
[please note that payment by regular instalments should be the norm, but if there is a lump sum payment
it should be made at the end of the Services]
Consultancy Agreement (version Jan 2015)
Page | 2
Item 7
Agreed
Expenses
Insert details here
Item 8
Time and
Method of
Payment
Insert details here
Item 9
Timetable for
Consultancy
Insert details here
Item 10
Deliverables
Insert details here
Item 11
Insurance
(a)
Public Liability Insurance
Insert amount
(b)
Workers Compensation Insurance
Insert amount or “as required by statute”
(c)
Professional Indemnity Insurance
Insert amount
Item 12
Item 13
Intellectual
Property
Notices
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)
Addresses for notices are as follows
CSU – University Secretary
The Grange
Panorama Avenue
Bathurst, NSW 2795
Consultant – Insert details here
Item 14
Consultant
Name:
Contact Person
Position:
Address:
Telephone:
Fax:
E-mail:
CSU Contact
Name:
Person
Position:
Address:
Telephone:
Fax:
E-mail:
Item 15
Things to be
[Insert description of any things/material/items to be made available by CSU to assist the Consultant to
made available
carry out the Services. The following is provided as an example only, and MUST be amended/deleted, as
by CSU
necessary.
SAMPLE ONLY:
Means the following things/materials/supplies and assistance (if any) to be made available by CSU to the
Consultancy Agreement (version Jan 2014)
page 3
Consultant:
(a)
access to CSU’s premises at reasonable hours,
(b)
reasonable office accommodation,
(c)
ICT equipment and access to CSU’s records.
Insert “N/A” if not applicable and delete all references above. ]
Special Conditions (if any)
Insert “N/A” if not applicable
Consultancy Agreement (version Jan 2014)
page 4
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 and on behalf of CHARLES
STURT UNIVERSITY by:
Before me:
……………………………………..
…………………………………….
Signature of Witness
Signature of authorised signatory
……………………………………..
……………………………………..
Name of Witness
Name of authorised signatory
……………………………………..
……………………………………..
Address of Witness
Position/Title
……………………………………..
Date
Signature for Consultant
INSTRUCTIONS:
1.
Select ONE execution panel for the Consultant from the following options according to the type of
entity:

individual,

company,

sole director company,

partnership,

other - signed by authorised signatory.
2. Delete all unused execution panels and this Instructions Box
3.
If needed, contact the Legal Office for advice on alternative execution panels for other types of
legal entities (eg for an incorporated association, trust, statutory corporation etc.).
Consultancy Agreement (version Jan 2014)
page 5
Signed by the Consultant:
Before me:
……………………………………..
……………………………………..
Name of Consultant
Signature of Witness
……………………………………..
……………………………………..
Signature of Consultant
Name of Witness
……………………………………..
……………………………………..
Address
Address of Witness
……………………………………..
Date
Signed for and on behalf of [name of
company] Ltd by:
…………………………………….
…………………………………….
Signature of Director (1)
Signature of Director (2) or Company
Secretary
……………………………………..
……………………………………..
Name of Director (1)
Name of Director (2) or Company
Secretary
……………………………………..
Date
……………………………………..
Date
Signed for and on behalf of [name of
company] by its sole Director and
Company Secretary:
…………………………………….
Signature of Director and Company
Consultancy Agreement (version Jan 2014)
Before me:
……………………………………..
Signature of Witness
page 6
Secretary
……………………………………..
……………………………………..
Name of Witness
Name of Director and Company
Secretary
……………………………………..
……………………………………..
Address of Witness
Date
……………………………………..
Date
Signed for and on behalf of
[partnership name & registered
business number] by its authorised
signatory:
Before me:
……………………………………..
…………………………………….
Signature of Witness
Signature of partner
……………………………………..
……………………………………..
Name of Witness
Name of partner
……………………………………..
……………………………………..
Address of Witness
Date
Signed for and on behalf of [name of
the Consultant] by its authorised
signatory:
Before me:
……………………………………..
…………………………………….
Signature of Witness
Signature of authorised signatory
……………………………………..
……………………………………..
Name of Witness
Name of authorised signatory
……………………………………..
Consultancy Agreement (version Jan 2014)
page 7
……………………………………..
Address of Witness
Date
Consultancy Agreement (version Jan 2014)
page 8
Agreed Terms – Consultancy Agreement
1
Definitions and Interpretation
1.1
Definitions
In this Agreement unless the context otherwise requires:
Agreed Expenses means any money due and payable to the Consultant as set out in item 7 of
Schedule 1 or otherwise agreed in writing by CSU, and does not include the Fees.
Agreement means this Agreement and any Schedule or Appendix attached to this Agreement.
Background IP means Intellectual Property that is made available by a party for the purpose of this
Agreement, whether upon commencement of this Agreement or during the term of the Agreement, and:
(a)
is in existence prior to the date of this Agreement; or
(b)
is brought into existence independently of this Agreement or the Services.
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 on a Business Day.
Confidential Information of a party means all trade secrets, knowhow, financial information, marketing,
student recruitment data, admission criteria and schemes and other commercially or scientifically
valuable information of whatever description and in whatever form (whether written or oral, visible or
invisible) which by its nature is confidential and which:
(a)
has been marked as confidential by a party; or
(b)
is otherwise known or reasonably ought to be known by a party as confidential,
but does not include information that is in the public domain or is independently known or developed by
the party receiving the information other than as a result of a breach of this Agreement or any other
obligation of confidentiality owed by or to any other person.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business,
pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of
opportunity or expectation loss and any other form of consequential, special, indirect, punitive or
exemplary loss or damage.
Contract Material means all documents, data and other material first created or brought into existence
under this Agreement and includes questionnaires, reports, software, technical information, plans, maps,
charts, photographs, drawings, calculations, tables, schedules, electronic or magnetic data.
Deliverables means all the goods, supplies or services to be provided by the Consultant to CSU in the
course of performing the Services, including reports, documents and other materials embodying data,
results and other information. Further details of the Deliverables, if any, such as the delivery dates and
any requirements for form and content, are set out in Item 10 of the Schedule.
Disclosing Party means the party disclosing Confidential Information to the other party.
Fees means any money due and payable to the Consultant for the Services as set out in Item 6 of
Schedule 1.
GST means any tax levied pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
as amended from time to time.
Intellectual Property means:
Consultancy Agreement (version Jan 2014)
page 9
(a)
(b)
any intellectual, industrial or commercial information, property or rights of a proprietary nature
(whether in material form or not), including without limitation:
(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 Schedule 1 to this Agreement.
Milestones means the dates for completion and delivery of Deliverables or other events or milestones, if
any, which are set out in Item 6 of the Schedule and scheduled for delivery or completion on a given
target date.
Moral Rights has the same meaning as in the Copyright Act 1968 (Cth).
Personal Information has the same meaning as in the Privacy and Personal Information Protection Act
1998 (NSW), being information or an opinion (including information or an opinion forming part of a
database and whether or not recorded in a material form) about an individual whose identity is apparent
or can reasonably be ascertained from the information or opinion.
Privacy Legislation means Privacy and Personal Information Protection Act 1998, Health Records and
Information Privacy Act 2002, Children and Young Persons (Care and Protection) Act 1998 and
Community Welfare Act 1987 as amended from time to time.
Project IP means any Intellectual property that is created or arises as a result of either party, their
employees, contractors or agents in carrying out the Services.
Recipient means the party receiving 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 2.1 and includes any extension of the Term pursuant to
clause 2.1.
1.2
Interpretation
In this Agreement unless the context otherwise requires:
(a)
the terms in each Item of Schedule 1 (Consultancy Agreement Details) have the meaning
ascribed to them in the right hand column of that Schedule;
(b)
words in the singular include the plural and vice versa;
(c)
where any time limit pursuant to this Agreement falls on a day which is not a Business Day then
the time limit will be deemed to have expired on the next Business Day;
(d)
a reference to a statute, regulation, ordinance or by-law will be deemed to include a reference to
all statutes, regulations, ordinances or by-laws amending, consolidating or replacing same from
time to time;
(e)
headings are for convenience only and do not affect the interpretation of this Agreement;
(f)
the meaning of general words is not limited by specific examples introduced by “including” or
“for example” or similar expressions;
(g)
references to persons include bodies corporate, government agencies and vice versa;
(h)
references to the parties include references to respective directors, officers, employees, agents
of the parties;
Consultancy Agreement (version Jan 2014)
page 10
(i)
nothing in this Agreement is to be interpreted against a party solely on the ground that the party
put forward this Agreement or any part of it; and
(j)
where an expression is defined, any other grammatical form of that expression has a
corresponding meaning.
2
Term
2.1
This Agreement commences on the Commencement Date specified in Item 1 of Schedule 1 and ends on
later of completion of the Services and payment of all Fees owing under this Agreement or the
Completion Date specified in Item 2, unless terminated earlier in accordance with its terms.
2.2
If the Commencement Date predates the date this Agreement is last signed:
(a)
the parties acknowledge that the Consultant commenced the activities contemplated by this
Agreement on the Commencement Date;
(b)
the parties agree that this Agreement commences on the Commencement Date and is deemed
to have applied to all activities carried out by the parties in relation to the Services from the
Commencement Date; and
(c)
the parties each warrant that it has complied with its obligations under this Agreement during
the period from the Commencement Date to the date this Agreement is last signed.
2.3
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.
3
Appointment
CSU appoints the Consultant the Consultant to provide the Services to CSU in accordance with this
Agreement and the Consultant accepts that appointment.
4
Services
4.1
Performance
The Consultant must:
(a)
perform the Services:
(i)
in accordance with this Agreement;
(ii)
with due care, skill and diligence to a professional or industry best practice standard
and in a timely manner;
(iii)
in accordance with all applicable laws; and
(iv)
in a manner that will not adversely affect or bring into disrepute the reputation of CSU;
(b)
provide any agreed Deliverable and/or complete any agreed Milestone in accordance with this
Agreement by any relevant delivery or target date and at any times, intervals and frequency
specified in Schedule 1;
(c)
ensure the health and safety of all people who may be affected by the Consultant’s activities under
this Agreement (including the Consultant’s employees and subcontractors and members of the
public), in compliance with the Work Health & Safety Act 2011; and
(d)
use best endeavours to obtain, in accordance with clause 9.4, a Moral Rights consent from each
of its directors, officers, employees and agents involved, wholly or partly, in creating Contract
material.
Consultancy Agreement (version Jan 2014)
page 11
4.2
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 CSU, then the Consultant must comply with the reasonable directions of
CSU and CSU’s rules, regulations and policies, including, without limitation, those relating to:
4.3
4.4
(a)
occupational health and safety;
(b)
emergency drills and procedures;
(c)
discrimination and harassment;
(d)
parking and traffic;
(e)
privacy and personal information; and
(f)
use of the CSU’s equipment or facilities.
Material and things to be made available by CSU
(a)
CSU will make available the material and other things, if any, set out in Item 15 of Schedule 1, to
assist the Consultant in performing the Services.
(b)
The Consultant must return all material and other things provided to it by CSU on expiry or
termination of this Agreement or on earlier demand by CSU.
Personnel
(a)
The Consultant will ensure that:
(i)
the Services are performed by the Consultant’s Personnel listed in Item 4 of Schedule 1, if
any; and
(ii)
the Consultant’s Personnel are competent and have the necessary skills to 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 giving at least fourteen (14) days prior written
notice, require the Consultant to substitute the Consultant’s Personnel with alternative personnel
acceptable to CSU.
(c)
If any of the Consultant’s Personnel cannot perform the Services, the Consultant will inform CSU
as soon as possible. Within five (5) days of notifying CSU of the unavailability of the Consultant’s
Personnel the Consultant will find a replacement of equivalent expertise acceptable to CSU at no
cost to CSU.
(d)
If the Consultant fails to provide acceptable replacement personnel in accordance with clause
4.4(b) or (c), CSU may terminate this Agreement by giving the Consultant at least fourteen (14)
days written notice.
5
Invoices, Payment of Fees and ABN
5.1
CSU will pay the Consultant the Fees and Agreed Expenses for performing the Services at the times and
in the manner set out in Items 6 and 7 of Schedule 1, provided that:
(a)
the Consultant has given CSU a valid tax invoice, which invoice must include details of:
(i)
the amount payable;
(ii)
the goods or services and the period of time to which the invoice relates;
(iii)
the full name, address and ABN of the Consultant;
(iv)
the full name and address of CSU; and
Consultancy Agreement (version Jan 2014)
page 12
(v)
(b)
any additional information required by law or pursuant to Australian Taxation Office
Guidelines to qualify as a tax invoice for the purposes of GST.
the Consultant has given CSU any Deliverable that is due to be delivered.
5.2
If the Consultant does not have an ABN they may lodge with CSU a completed ‘Statement by a Supplier’
form claiming an exemption for lodging an ABN. The Consultant acknowledges that they should seek
advice from the Australian Taxation Office or an independent adviser regarding the Statement by a
Supplier form if needed.
5.3
If the Consultant does not provide either an ABN or a completed ‘Statement by a Supplier’ form, then
CSU will withhold from any payments of Fees, an amount of 46.5 per cent or such other amount as
determined by the Australian Taxation Office from time to time.
5.4
CSU is not liable to pay the Consultant for any amount not included in the Fees or the Agreed Expenses,
including, without limitation, any tax, government or statutory charge.
5.5
Any reimbursement of Agreed Expenses by CSU under this Agreement will be net of input tax credits (if
any) to which the Consultant is entitled under the GST law, and is subject to provision by the Consultant
of an invoice and additional receipts in a form reasonably satisfactory to CSU.
6
Insurance
6.1
The Consultant:
6.2
7
(a)
must effect and maintain the insurance policies set out in Item 11 and any other insurance policy
required by law in connection with the provision of the Services throughout the Term; and
(b)
warrants that it has and will maintain appropriate insurance to cover any liability it may incur in
relation to this Agreement.
The Consultant must:
(a)
provide CSU with evidence that it has complied with clause 6.1 on request including, at CSU’s
discretion, a copy of valid and current certificates of currency for each or any of the required
policies;
(b)
pay all insurance premiums on time;
(c)
not do, permit or suffer any act, matter or thing or omission whereby any of the policies referred to
in this clause may be vitiated, rendered void or voidable; and
(d)
notify CSU immediately if an insurance policy required under clause 6.1 is cancelled.
Relationship of Parties
The Consultant acknowledges that the relationship is that of an independent contractor and the
Consultant is not:
(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.
Consultancy Agreement (version Jan 2014)
page 13
8
Confidential Information
8.1
In relation to the Disclosing Party's Confidential Information, the Recipient must:
8.2
8.3
(a)
keep the Confidential Information confidential;
(b)
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;
(c)
use its best efforts to notify the Disclosing Party immediately if it becomes aware of any
unauthorised use or disclosure of the Confidential Information;
(d)
not disclose or provide the Confidential Information to anyone, except as expressly permitted
under this Agreement; and
(e)
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 disclose Confidential Information to only those of its employees, directors, officers,
subcontractors, agents and legal, financial or other professional advisers who have a need to know the
information for the purposes of this Agreement, provided that, prior to the disclosure, the Recipient:
(a)
ensures that those persons are made aware of the confidential nature of the Confidential
Information; and
(b)
procures an assurance that any such Confidential Information will be kept confidential which
includes, in the case of the Consultant’s contractors, subcontractors, consultants and advisers,
obtaining signed confidentiality undertakings to comply with the confidentiality obligations in this
Agreement.
The Recipient may disclose Confidential Information to the extent that it is required to be disclosed by
law, provided that:
(a)
the Recipient must, to the extent reasonably practicable, give prior notice to the Discloser of the
proposed disclosure with full details of the circumstances and the information to be disclosed;
(b)
the Recipient must postpone any disclosure required by law for as long as the Recipient is able to,
without prejudicing the Recipient’s own position; and
(c)
the Recipient acknowledges that the Discloser, at its cost and expense, is entitled to make
representation to the relevant court, tribunal or other body seeking or ordering disclosure as to
whether the Confidential Information should be disclosed.
8.4
The Recipient's obligations of confidentiality apply indefinitely beyond the end of this Agreement.
9
Intellectual Property
9.1
Ownership by CSU
Unless otherwise stated in Item 12 of Schedule 1 the Consultant:
(a)
agrees and acknowledges that title to any Contract Material and Project IP vests automatically
upon creation in CSU;
(b)
must, at the Consultant’s own cost, do all things reasonably requested by CSU and execute all
documents required to give effect to this clause 9.1;
(c)
must, at its own expense, must promptly deliver all Contract Material and Project IP to CSU, or as
otherwise directed by CSU, in accordance with this Agreement or otherwise on expiry or
termination of this Agreement;
Consultancy Agreement (version Jan 2014)
page 14
9.2
9.3
(d)
agrees and acknowledges that CSU reserves the right, at any time, in its own name, to alter,
qualify or reject any statement, design, conclusion, recommendation or other information provided
or made by the Consultant in any Contract Material;
(e)
must ensure the Contract Material and any Project IP is used, copied, supplied or reproduced only
for the purposes of this Agreement unless the Consultant obtains the prior written approval of CSU
to do otherwise. CSU may withhold the approval or impose any conditions on that approval at its
discretion.
Background IP
(a)
Each party retains ownership of any material or Background IP it provides to enable the Services
to be carried out.
(b)
The Consultant warrants that:
(i)
to its actual knowledge or belief, after actual enquiry, it is the owner of or is otherwise
entitled to provide the Background IP that it makes available for the purposes of this
Agreement;
(ii)
except to the extent disclosed in this Agreement, or to CSU, when making Background
IP available, that Background IP is unencumbered; and
(iii)
it will not enter into any agreement in relation to or otherwise deal with that Background
IP in a manner that restricts the exercise of the rights granted to CSU under this
Agreement
(c)
The Consultant uses any Background IP provided by CSU at its own risk.
(d)
The Consultant grants to CSU a worldwide, free, perpetual, irrevocable, non-exclusive licence to
use the Background IP provided by the Consultant (including a right to sub-licence the
Background IP) for the purposes of this Agreement, for internal research, training and education
and for commercialisation of any Project IP.
(e)
CSU grants to the Consultant a free, non-exclusive licence for the term of the Agreement to use
the Background IP made available by CSU, for the purposes of carrying out the Services.
(f)
Each party must immediately advise the other if it becomes aware of any infringement of the other
party’s Background IP.
(g)
Each party must give the other party all assistance which they may reasonably request in order to
protect their interest in Background IP (but only if the owner of the Background IP pays the other
party’s reasonable costs and expenses of doing so).
Licence to CSU
If Item 12 specifies that any Project IP vests in the Consultant, then the Consultant grants CSU an
irrevocable, perpetual, royalty-free, worldwide, non-transferable and non-exclusive licence to use,
reproduce or modify that Project IP (including the right to sub-licence that Project IP) for any purpose.
9.4
Moral Rights
(a)
Prior to any individual commencing work in respect of the Services on behalf of the Consultant,
the Consultant must use its best endeavours to obtain from each individual a written consent to
any act or omissions which might otherwise infringe the Moral Rights of that individual in relation
to Contract Material and Project IP created wholly or partly by that individual, including:
(i)
the use and adaptation of that material in any manner for the purposes of research,
education and/or commercialisation;
(ii)
the use of that material without attributing or falsely attributing the author of the
material.
Consultancy Agreement (version Jan 2014)
page 15
9.5
(b)
The Consultant must not obtain any consents under clause 9.4(a) by duress or by inducement or
by false or misleading statements.
(c)
The Consultant must provide a copy of consents obtained under clause 9.4(a) to CSU upon
request.
Warranty
The Consultant warrants that:
(a)
any dealing with the Project IP as contemplated by clauses 9.1 or 9.3, of the Consultant’s
Background IP as contemplated by clause 9.2 (whichever applies) does not infringe the
intellectual property rights of any third party; and
(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.
10
Termination
10.1
This Agreement will end on the earlier of:
(a)
the Consultant providing the Services and CSU paying all Fees and Agreed Expenses due;
(b)
either party giving written notice to the other party where the other party has breached any
material provision of this Agreement and that other party has not remedied that breach within thirty
(30) days of receipt of written notice specifying the nature of the breach;
(c)
termination by CSU at any time by notice in writing to the Consultant, without the need to give
reasons, and with effect from the date stated in the notice; or
(d)
termination by CSU by notice to the Consultant with immediate effect if the Consultant becomes
bankrupt, insolvent, enters into a scheme of arrangement with its creditors, makes an assignment
for the benefit of creditors, is the subject of winding up proceedings whether voluntary or
compulsory otherwise than for the purpose of reconstruction and amalgamation or a receiver is
appointed to the Consultant by a court.
10.2
Without limitation to clause 10.1 CSU may, by written notice to the Consultant, reduce the scope of the
Services at CSU’s convenience, with effect from the date stated in the notice.
10.3
Upon receipt of a notice of termination or reduction under this clause 10 the Consultant must:
(a)
stop work as specified in the notice;
(b)
take all available steps to minimise loss resulting from that termination; and
(c)
continue work on any part of the Services not affected by the notice.
10.4
If the scope of the Services is reduced under clause 10.2 above, CSU’s liability to pay the Fees abates in
accordance with the reduction in the Services.
10.5
On termination or expiry of this Agreement:
(a)
accrued rights and obligations are not affected;
Consultancy Agreement (version Jan 2014)
page 16
10.6
(b)
CSU must pay the Consultant for work done and any Agreed Expenses incurred up to the
effective date of termination or expiry (after taking into account any payments already made to the
Consultant prior to that date); and
(c)
all Background IP must be returned to the party that provided it or disposed of as directed by that
party.
If this Agreement is terminated by CSU under clause 10.1 CSU will, without limitation to clause 10.5, be
liable for reasonable and unavoidable costs incurred by the Consultant that are directly attributable to the
termination, provided that:
(a)
the Consultant will have no Claim for Consequential Loss, whether under the Agreement or
otherwise; and
(b)
the Consultant will not be entitled to payment or compensation which would together exceed the
Fees which would have been payable under this Agreement.
10.7
The Consultant must ensure that any subcontract which it enters into in connection with the Services
includes a clause that is equivalent to this clause 10.
11
Indemnity
11.1
General Indemnity
The Consultant indemnifies and must keep indemnified CSU and its officers, employees and agents from
and against all from and against all damages, costs, expenses, loss or damage which they may incur or
sustain and all and all actions, proceedings, claims and demands whatsoever which may be brought or
made against it or them by any person in respect of or by reason of or arising out of
(a)
any breach of this Agreement by the Consultant, including any breach of any of the Consultant’s
obligations, representations or warranties under this Agreement;
(b)
any negligence or other wrongful or unlawful act or omission of the Consultant, its employees,
sub-Consultants, agents, licensees, invitees or visitors or of any other persons for whose acts or
omissions the Consultant is vicariously liable; or
(c)
death, injury, loss of or damage to the Consultant, or its other employees, agents, subConsultants, licensees, invitees or visitors.
The Consultant’s liability to indemnify CSU under this clause 11 will be reduced proportionately to the
extent that any negligent or unlawful act or omission by CSU, its officers, employees or agents
contributed to the relevant loss or liability.
11.2
Consequential Loss
No party will be liable to the other party for any Consequential Loss suffered by the other party in any
way arising from the Services.
11.3
No exclusion of common law
The Consultant’s liability to indemnify CSU under this clause does not exclude or reduce the liability of,
or benefit to, a party that may arise by operation of the common law, statute or the other terms of this
Agreement.
11.4
Nature and scope
The indemnities in this Agreement:
(a)
are continuing and independent obligations;
(b)
survive termination or expiry of this Agreement; and
(c)
include the indemnified party’s reasonable legal costs on a full indemnity basis.
Consultancy Agreement (version Jan 2014)
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12
Dispute Resolution
12.1
A party must not begin legal action (except urgent interlocutory relief), unless that party has complied
with this clause.
12.2
A party claiming that a dispute has arisen must notify the other party specifying details of the dispute.
12.3
Each party must refer a dispute to an authorised officer for consideration and use its best efforts to
resolve the dispute through negotiation.
12.4
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.
12.5
If the dispute has not been resolved within ten (10) Business Days of being referred to the mediator, then
either party may terminate the mediation process by written notice to the other party.
12.6
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
GST
13.1
Unless otherwise defined in this Agreement, words or expressions used in this clause have the same
meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999 (“GST law”).
13.2
Unless otherwise indicated all amounts referred to in this Agreement are exclusive of GST.
13.3
If a taxable supply is made to a recipient, the party which makes the taxable supply must provide the
recipient with a tax invoice or other document with information required by the GST law to be included in
a tax invoice to enable the recipient to claim an input tax credit.
13.4
If the party which makes a taxable supply does not quote an Australian Business Number (“ABN”) to the
recipient for any reason by the time the first invoice related to that supply is issued, or does not otherwise
provide a completed “statement by a supplier” (reason for not quoting an ABN) form to the recipient, the
recipient will withhold an amount from the payment it makes to the supplier for that supply on account of
withholding tax, as required by law.
13.5
If any GST is payable by the party which makes the taxable supply under this Agreement, any
consideration payable for any such taxable supply will be increased by the amount of GST payable
(except to the extent that the consideration is already expressed to be GST inclusive).
14
Privacy
14.1
The Consultant will:
(a)
ensure that Personal Information that is provided by CSU or collected by the Consultant under or
in connection with this Agreement is used only for the purposes of this Agreement and is protected
against loss and against unauthorised access, use, modification or disclosure or against other
misuse;
(b)
not disclose any such Personal Information without the written consent of:
(i)
the individual to whom the Personal Information relates; or
Consultancy Agreement (version Jan 2014)
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(ii)
CSU,
unless otherwise required or authorised by law;
(c)
comply with the Information Protection Principles applying to NSW public sector agencies under
the Privacy Legislation when doing any act or engaging in any practice in relation to Personal
Information as if it were an agency directly subject to that Privacy Legislation; and
(d)
immediately notify CSU if the Consultant becomes aware of a breach or possible breach of any of
the obligations contained in, or referred to in, this clause 14, whether by the Consultant or any
contractor or subcontractor to the Consultant;
(e)
ensure that any employee of the Consultant who is required to deal with Personal Information for
the purposes of the Agreement is made aware of, and undertakes in writing to comply with, the
Consultant’s obligations under this clause 14;
(f)
include equivalent requirements regarding Personal Information (including this clause 14) in any
subcontract entered into for the provision of any of the Services under this Agreement.
15
Force majeure
15.1
In this clause 15 an “Event of force majeure” means an event or circumstance which is beyond the
control and without the fault or negligence of the party affected and which by the exercise of reasonable
diligence the party affected was unable to prevent including war, act of foreign enemies, act of terrorism,
earthquake, flood, fire, civil insurrection and strike or industrial dispute.
15.2
Neither party is responsible for any failure to perform its obligations under this Agreement if it is
prevented or delayed in performing those obligations by an Event of Force Majeure.
15.3
Where there is an Event of Force Majeure, the party prevented from or delayed in performing its
obligations must immediately notify the other party giving full particulars of the Event of Force Majeure
and the reasons for the Event of Force Majeure preventing that party from or delaying that party in
performing its obligations, and that party must use its reasonable efforts to mitigate the effect of the
Event of Force Majeure.
15.4
Upon completion of the Event of Force Majeure the party affected must as soon as reasonably
practicable recommence the performance of its obligations under this Agreement.
15.5
An Event of Force Majeure does not relieve a party from liability for an obligation which arose before the
occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which
matured prior to the occurrence of that event.
15.6
If an Event of Force Majeure continues for six (6) months, or such other period as agreed between the
parties, this Agreement will terminate on the six month anniversary of the first day of the Event of Force
Majeure.
16
General
16.1
Survival
The following clauses survive termination or expiry of this Agreement: clause 4.3(b), clause 8
(Confidential Information), clause 9 (Intellectual Property), clause 10 (Termination), clause 11
(Indemnities), clause 12 (Dispute Resolution), clause 14 (Privacy), this clause 16.1, clause 16.3 and any
other clause which by its nature is intended to survive this Agreement.
16.2
Subcontractors
The Consultant:
(a)
must not, without the prior written consent of CSU, subcontract the performance of any part of the
Services. In giving written approval, CSU may impose such terms and conditions as it thinks fit;
Consultancy Agreement (version Jan 2014)
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16.3
(b)
remains fully responsible for the performance of the Services if it subcontracts the performance of
any part of those Services; and
(c)
must engage any subcontractors under written agreement on terms consistent with this
Agreement.
Keeping of records and rights of access to such records
The Consultant:
16.4
(a)
must keep complete and accurate records and books of account with respect to its performance of
the Services (the “Records”), and must retain such Records for a minimum of seven (7) years
after expiry or termination of this Agreement;
(b)
authorises CSU and any State or Commonwealth Government department or agency (the
“Auditors”) that has provided moneys to CSU for the purposes of this Agreement, to examine and
inspect, at reasonable times and on reasonable notice, any Contract Material and Records held by
the Consultant and allow any such Contract Material and Records to be copied; and
(c)
provide all reasonable assistance in order for the Auditors to properly carry out the inspections
and audits referred to in this clause.
Conflict of Interest
The Consultant must not:
(a)
act as a contractor to any person who carries on or is involved in any capacity in an activity of
business; or
(b)
carry on or be involved in any capacity in an activity or business,
which may conflict with, or adversely affect, the Consultant’s ability to carry out its obligations under this
Agreement, and the Consultant agrees to immediately notify CSU in writing if a risk of such a conflict
arises.
16.5
Agreement subject to applicable laws
The provisions of this Agreement (including all rights, obligations, exclusions and limitations) apply only
to the extent permitted under applicable laws.
16.6
Amendment
Any amendment to this Agreement must be in writing and signed by both parties.
16.7
Assignment and novation
A party must not assign or novate any of its rights, obligations or interest under this Agreement without
the prior written consent of the other party.
16.8
Inconsistency
If there is any inconsistency between provisions then the order of precedence will be:
16.9
(a)
the Details in Schedule 1 (including any Special Conditions); then
(b)
these Agreed Terms; then
(c)
any additional Schedules.
Counterparts
This Agreement 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 agreement.
16.10
Entire agreement
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This Agreement 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.
16.11
Governing Law and jurisdiction
This Agreement 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.
16.12
Notices
(a)
The Contact Person of each party nominated in Item 14 of Schedule 1 will be the primary liaison
and contact officer between the parties, and is authorised to give and receive Notices on their
respective party’s behalf. Each party may at any time change its Contact Person by notice in
writing
(b)
Each party represents that its Contact Person nominated in Item 14 of Schedule 1 is authorised
to exercise the duties, discretions and powers vested in them under this Agreement. Each party
may at any time change its Contact Person by notice in writing.
(c)
Any Notice is deemed to be received by the receiving party as follows:
(i)
if hand delivered during Business Hours, the day on which it is left at the relevant
address;
(ii)
if sent by regular post within Australia, four (4) Business Days after the day on which it
is posted;
(iii)
if sent by email, on entering the information system of the recipient party;
provided that any such Notices which are hand-delivered , faxed or emailed, are delivered
before 5.00pm on a Business Day, otherwise they will be deemed to be received on the next
Business Day,
16.13
(d)
Any such mode of service will be in all respects valid and effectual notwithstanding that the party on
whom service is effected may be in liquidation, bankruptcy or wound up and notwithstanding any
other matter or event whatsoever.
(e)
Notices given under the following clauses of the Agreement must not be sent by email: clause
clause 6 (Insurance), clause 10 (Termination), clause 12 (Dispute Resolution) and clause 13
(GST).
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.
16.14
Waiver
A waiver of any breach or non-performance of this Agreement will only be effective if it is written and
signed by the party giving the waiver, and only to the extent specified.
16.15
Additional rights
The rights of a party under this Agreement are additional to and do not derogate from any rights at
general law.
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