Consultancy Agreement
DETAILS
PARTIES
Monash
Monash University (ABN 12 377 614 012), a body corporate constituted in
accordance with the Monash University Act 2009 (Vic) of Wellington Road, Clayton,
Victoria 3800
Client
[insert legal name] (ABN: [insert ABN]) of [insert address]
TERM
Commencement Date
[insert]
Completion Date
[insert]
SERVICES
Services
[insert description of the services or the words ‘The services described in Annexure
A.’]
Deliverables
[insert the reports and/or other deliverables to be provided by Monash]
Milestones
[insert milestone]
[insert completion date]
[insert milestone]
[insert completion date]
[insert milestone]
[insert completion date]
Key Personnel
[insert names of Monash personnel involved in the Services]
Client Responsibilities
[insert responsibilities of the Client (if any) eg. provide samples, arrange travel etc
(see clause 4.1)]
Client Materials
[insert materials (if any) to be provided by the Client]
Are Monash approvals
(eg ethics/biosafety)
required?
□
□
YES
NO
PAYMENT
Fees
Expenses
Invoicing date or Milestone
Amount (excl GST)
[insert]
[insert]
[insert]
[insert]
[insert]
[insert]
TOTAL
[insert]
[insert comprehensive description of the types of expenses the Client will cover eg
travel and accommodation expenses]
CONTACT DETAILS
Address for notices
Address for invoices
Monash address:
Client address:
Attention:
[insert]
Attention:
[insert]
Address:
[insert]
Address:
[insert]
Phone:
[insert]
Phone:
[insert]
Email:
[insert]
Email:
[insert]
Fax:
[insert]
Fax:
[insert]
[insert address for invoices or the words ‘As above.’]
EXECUTED as an agreement
SIGNED for and on behalf of MONASH UNIVERSITY
by its authorised officer in the presence of:
……………………………………………………………………
(signature of witness)
……………………………………………………………………
(signature of authorised officer)
……………………………………………………………………
(name of witness)
……………………………………………………………………
(name of authorised officer)
……………………………………………………………………
(date)
……………………………………………………………………
(position of authorised officer)
[If the Client is an Australian company, use the second execution clause below and delete the first execution clause.
If the Client is not an Australian company, use the first execution clause and delete the second execution clause.]
SIGNED for and on behalf of the CLIENT by its
authorised officer in the presence of:
……………………………………………………………………
(signature of witness)
……………………………………………………………………
(signature of authorised officer)
……………………………………………………………………
(name of witness)
……………………………………………………………………
(name of authorised officer)
……………………………………………………………………
(date)
……………………………………………………………………
(position of authorised officer)
SIGNED by the CLIENT in accordance with section
127 of the Corporations Act 2001 (Cth):
……………………………………………………………………
(signature of Secretary/Director)
……………………………………………………………………
(signature of Director)
……………………………………………………………………
(name of Secretary/Director)
……………………………………………………………………
(name of Director)
……………………………………………………………………
(date)
……………………………………………………………………
(date)
Consultancy Agreement Terms and Conditions
1.
Definitions
Agreement means the Details, these Terms and Conditions
and any Annexures.
Australian Sanctions Law means any law prohibiting or
restricting dealings with proscribed states, persons or
entities or seeking to prevent the proliferation of weapons,
including but not limited to laws implementing the
sanctions imposed by the United Nations Security Council.
Background IP means Intellectual Property owned or
controlled by a party, including Intellectual Property
developed prior to or independently of this Agreement,
which a party determines, in its sole discretion, to make
available for the carrying out of the Services.
Client Materials mean any equipment, materials, data or
information supplied to Monash by or on behalf of the
Client, including as set out in the Details.
Client Responsibilities means the responsibilities of the
Client as set out in the Details.
Confidential Information means information disclosed to a
party (Receiving Party) in any material form by the other
party (Disclosing Party) in relation to the Services and
marked as “confidential”, or if disclosed orally then reduced
to writing and forwarded to the Receiving Party within
seven (7) days and marked as “confidential”, but does not
include information which: (a) is in the public domain at the
time of disclosure; (b) is published or otherwise becomes
part of the public domain through no fault of the Receiving
Party; (c) was in the possession of the Receiving Party at the
time of disclosure without an obligation of non-disclosure to
the Disclosing Party; (d) is received from a third party
without an obligation of non-disclosure; (e) is independently
created by or on behalf of the Receiving Party by persons
who had no knowledge of the disclosed information; or (f) is
required to be disclosed by law.
Deliverables mean the deliverables to be supplied to the
Client as set out in the Details.
Details means the matters set out in the table on the front
page(s) of this Agreement.
GST means the tax imposed by the A New Tax System
(Goods and Services Tax) Act 1999 (Cth).
Health Information has the same meaning as in the Privacy
Act 1988 (Cth).
Intellectual Property means all rights resulting from
intellectual activity whether capable of protection by
statute, common law or in equity and including copyright,
discoveries, inventions, patent rights, registered and
unregistered trade marks, design rights, circuit layouts and
plant varieties and all rights and interests of a like nature,
together with any and all documentation and materials
relating to such rights and interests, but excluding moral
rights and similar non-assignable rights of any person.
Key Personnel mean the Monash personnel as set out in the
Details involved in providing the Services.
Personal Information has the same meaning as in the
Privacy Act 1988 (Cth).
Consultancy Agreement – Version 2 (17 December 2012)
2.
3.
Relevant Privacy Laws mean the Privacy Act 1988 (Cth), the
Health Services Act 1988 (Vic), the Mental Health Act 1986
(Vic), the Health Records Act 2001 (Vic) and any other
legislation, code or guideline which applies in the
jurisdiction in which the Services are being undertaken and
which relates to the protection of Personal or Health
Information.
Services mean the services, including any Deliverables,
Monash is providing under this Agreement, as described in
the Details.
Term
This Agreement commences on the Commencement Date
and continues until the Completion Date, unless otherwise
agreed by the parties in writing or until the Agreement is
terminated in accordance with its terms.
Services
3.1. Monash will provide the Services on the terms of this
Agreement.
3.2. The parties agree that if there is a change in the scope,
timing or order of the Services or there is a change in
the circumstances outside Monash’s control that
would normally pertain to carrying out that work such
that there is an increase in that work, then Monash
will be entitled to an additional payment of an
amount that is reasonable in the circumstances or as
otherwise agreed.
3.3. Monash will ensure that the Services are carried out
by the Key Personnel or such other person(s) as may
be agreed by the parties in writing.
3.4. Where the Key Personnel leave the employ of Monash
or are unable to perform the Services, Monash will
use reasonable endeavours to provide a replacement
subject to the Client’s approval which will not be
unreasonably withheld or delayed. If a suitable
replacement cannot be found or is not agreed to by
the parties, the parties will communicate with each
other and decide whether to terminate this
Agreement. If the parties agree to terminate this
Agreement under this clause, Monash will be entitled
to payment for work done and Expenses incurred up
to the date of termination and reasonable costs
necessarily incurred arising from such termination.
3.5. Monash will use reasonable endeavours to complete
the Services by the Completion Date and any
milestone dates specified in the Details.
3.6. If Monash approvals are required in relation to the
Services, Monash must use reasonable endeavours to
obtain such approvals and is not required to
commence the Services until such approvals are
obtained. In the event that Monash approvals are
unable to be obtained or obtained in a timely manner,
the parties will communicate with each other and
decide whether to terminate this Agreement. If the
parties agree to terminate this Agreement under this
clause, Monash will be entitled to payment for work
done and Expenses incurred up to the date of
termination.
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4.
5.
Client’s obligations
4.1. Client Responsibilities
The Client will comply with or perform the Client
Responsibilities at the Client’s sole expense and will
promptly provide the Client Materials required to
perform the Services, and all information and
assistance reasonably required to enable Monash to
provide the Services.
4.2. Use of Client Materials
The Client will:
(a) ensure that the Client Materials are accurate,
complete and current;
(b) ensure that it is entitled to supply the Client
Materials to Monash for the purpose of the
Services;
(c) ensure that the use of the Client Materials in
connection with the Services is lawful and all
required consents, permissions or authorisations
relating to such use have been obtained;
(d) be responsible for arranging for the packaging
and delivery of all Client Materials to Monash
and for all associated costs. Monash will not be
responsible for any damage to the Client
Materials prior to delivery to it;
(e) unless specified by written notice to Monash,
ensure that the Client Materials, when used by
Monash for the Services, are not reasonably
capable of constituting a threat to safety, health,
life, property or the environment; and
(f) ensure that it provides Monash all relevant
information regarding the Client Materials,
including, without limitation, information relating
to the safe, secure and appropriate
transportation, use, storage and disposal of the
Client Materials.
Payment
5.1. Fees and Expenses
(a) The Client will pay Monash the Fees and
Expenses at the rate or amount and in the
manner specified in the Details.
(b) Monash will submit a tax invoice to the Client in
accordance with the Details and the Client must
pay such amounts within thirty (30) days of
receipt of the tax invoice.
5.2. Overdue payments
Monash may suspend performance of the Services or
its other obligations under this Agreement until all
overdue amounts are paid. The Client will pay, if
demanded, interest at a rate 2% higher than the rate
fixed from time to time under the Penalty Interest
Rates Act 1983 (Vic) on any amounts which the Client
has not paid to Monash by the due date. Interest is to
be calculated daily from the due date and will
continue until the overdue amounts are paid.
5.3. Taxes
Any amount payable for anything supplied under this
Agreement is expressed exclusive of GST. If GST is
Consultancy Agreement – Version 2 (17 December 2012)
payable on any supply made by Monash under this
Agreement, the Client will pay to Monash an
additional amount equal to the GST at the time
payment of the Fees are due.
6. Intellectual Property
6.1. Ownership of rights in any Background IP will remain
with the contributing party. Where the Background IP
is contributed by the Client, Monash is licensed to use,
modify or adapt that Background IP for the provision
of the Services.
6.2. On payment of all Fees and Expenses, all rights, title
and interest to, and Intellectual Property in, the
Deliverables are assigned to the Client.
6.3. The Client grants to Monash a non-exclusive, royaltyfree, perpetual licence (with a right to sublicense), to
use the Deliverables and the Intellectual Property in
the Deliverables for research, teaching, academic and
publication purposes (subject to clause 9).
7. Confidential Information
The Receiving Party undertakes to keep the Confidential
Information confidential and to disclose it to its employees,
agents and subcontractors only on a need to know basis as
required for the Services, and under the same obligations of
confidence as set out under this Agreement.
8. Privacy
Each party must ensure that any Personal Information or
Health Information relating to the Services or under this
Agreement, is collected, stored, used and disclosed in
accordance with the Relevant Privacy Laws.
9. Publications
9.1. Monash may publish information created in the
provision of the Services, including the Deliverables, in
academic, scientific and technical publications
provided no Confidential Information of the Client is
disclosed. Prior to publication, Monash will obtain
written permission from the Client. The Client is
under no obligation to provide such permission, but
agrees to respond to a request from Monash within
30 days. In the event that the Client does not respond
within this 30 day period, permission is deemed to
have been given.
9.2. Neither party will use the other party’s name or the
name of any employee of the other party in any
publication or promotional material without the other
party’s written consent.
9.3. The Client will not represent that Monash or any
Monash employee in any way endorses, supports or
approves of any product, service, intellectual property
or business of the Client without Monash’s prior
written consent.
10. Liability and Warranties
10.1. Monash will exercise all reasonable care and diligence
in carrying out the Services but specifically excludes
any warranty either express or implied as to the
standard of work, the accuracy of, or fitness for a
particular purpose of, the Deliverables and shall not
be liable for any damage, direct or consequential,
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howsoever arising under this Agreement, to the
extent to which these warranties can be excluded by
law.
10.2. To the fullest extent permitted by law, Monash’s
liability under any condition or warranty which cannot
legally be excluded is limited, at the option of Monash
to:
(a)
in the case of goods: the replacement of the
goods or the supply of equivalent goods; the
repair of the goods; the payment of the cost of
replacing the goods or of acquiring equivalent
goods; or the payment of the cost of having the
goods replaced;
(b)
in the case of services: supplying the Services
again or paying the cost of having the Services
supplied again.
10.3. The Client assumes sole responsibility and risk in
interpreting, using and exploiting the Deliverables
(including any findings, results and recommendations
therein) and shall indemnify Monash and its officers,
employees and agents against any actions,
proceedings, suits, claims and demands arising from
such interpretation, use or exploitation by the Client.
10.4. To the fullest extent permitted by law, Monash will
not be liable for any special, indirect or consequential
loss or damage, or loss of anticipated profits, revenue,
data or opportunity, arising from or in any way
relating to this Agreement, whether in tort (including
negligence), contract, statute, equity or otherwise.
10.5. Notwithstanding any other clause in this Agreement
and to the fullest extent permitted by law, Monash’s
liability arising from its obligations under this
Agreement or in any other manner related to this
Agreement, whether in tort (including negligence),
contract, statute, equity or otherwise, will not in the
aggregate exceed the Fees and Expenses paid.
11. Default or Termination
11.1. Either party may terminate this Agreement
immediately by written notice if:
(a) the other commits a material breach of this
Agreement which it fails to remedy within thirty
(30) days of being notified of the breach;
(b) the other party breaches clause 14.7; or
(c) the other party becomes the subject of any
insolvency administration.
11.2. Clauses 6, 7, 8, 9, 10 and 13 survive the expiration or
termination of this Agreement.
12. Force Majeure
Monash will not be liable for any delay or failure to perform
the Services or its obligations under this Agreement where
such delay or failure is due to any event beyond Monash’s
reasonable control.
Consultancy Agreement – Version 2 (17 December 2012)
13. Dispute Resolution
13.1. If any dispute arises between the parties out of or in
relation to this Agreement, the parties will endeavour
to resolve that dispute by negotiation in good faith.
13.2. If the dispute is not mutually resolved within thirty (30)
days of a party serving on the other a written dispute
notice, each party must nominate one senior
representative who will meet as soon as practicable
for the purpose of endeavouring to resolve the
dispute.
13.3. If, after submitting the dispute to the senior
representatives, the Parties fail to resolve the dispute,
the Parties will have the right to seek the
determination of the dispute in a court or tribunal
exercising jurisdiction over such matters in Victoria.
13.4. The provisions of this clause will not preclude a party
from seeking urgent interlocutory relief in a court of
competent jurisdiction.
14. General
14.1. This Agreement contains the entire understanding
between the parties concerning its subject matter and
supersedes all prior oral and written representations
and agreements.
14.2. This Agreement will prevail over any terms and
conditions attached to a purchase order, scope of
work or other similar document provided by the Client.
14.3. This Agreement is governed by and must be construed
in accordance with the laws of Victoria. The parties
submit to the non-exclusive jurisdiction of the courts
of Victoria and the courts competent to determine
appeals from those courts with respect to any
proceedings which may be brought at any time
relating in any way to this Agreement.
14.4. This Agreement may only be varied in writing by the
parties.
14.5. This Agreement may be executed in any number of
counterparts. All counterparts taken together will
constitute the one Agreement.
14.6. Each party may communicate its execution of this
Agreement by successfully transmitting an executed
copy of this Agreement by facsimile or email to each
other party.
14.7. The Client undertakes not to engage in any act which
may result in Monash contravening an Australian
Sanctions Law.
14.8. The relationship established by this Agreement
between Monash and the Client is one of principal
and independent contractor and not one of
employment, partnership or joint venture.
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ANNEXURE A
The Services
[Attach a description of the agreed services to be performed by Monash if not included in the Details (otherwise
delete this page)]
Consultancy Agreement – Version 2 (17 December 2012)
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