A. Engaged business that wish to receive Hospitality & Business Consultancy as set out in Specification (Consultancy Services).
B. The Consultant has the skills, background and experience in providing Hospitality & Business services.
C. Engaged business wishes to engage an independent contractor to provide the Consultancy Services
D. The Consultant is willing to provide the Consultancy Services and the engaged business is willing to appoint the Consultant to provide the Consultancy Services, all in accordance with the provisions of this Agreement.
1. Definitions and interpretation
In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
Commencement Date means 5th August 2020;
Completion Date means 4th November 2020 or such other date as the Parties may agree and a 3-month extension where mutually agreeable.
Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the engaged business in the course of the engaged business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
Consultant’s Personnel means any person(s) that the Consultant designates to perform the Services on the Consultant’s behalf;
Facilities means facilities as required by the Consultant from time to time in performing the Consultancy Services, in accordance with clause 6 of this Agreement;
Fee(s) means agreed amount as Setout in the engagement letter
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
Parties means the Consultant and engaged business, and Party shall mean either one of them;
Purpose means ……;
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001 (Cth);
Specification means the specific Consultancy Services to be provided by the Consultant under this Agreement. The Specification is set out in Schedule 1 of this Agreement;
Termination Date means the earlier of:
a. the date of termination of this Agreement by the engaged business or the Consultant; and
b. the date of expiry of this Agreement.
In this Agreement unless the context otherwise requires:
c. words importing any gender include every gender;
d. words importing the singular number include the plural number and vice versa;
e. words importing persons include firms, companies and corporations and vice versa;
f. references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
g. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
h. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
i. the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
j. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
k. the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
2. Consultancy services (refer to Engagement Letter)
a. The Consultant shall provide the Consultancy Services for the Purpose and as the Parties may agree from time to time to the engaged business in consideration for the engaged business paying the Fee to the Consultant, subject to the provisions of this Agreement.
b. The Consultant and engaged business shall agree the time and place for the performance of the Consultancy Services subject to the availability of the Consultant’s staff and agents.
c. The Consultant shall use reasonable endeavours to complete the Consultancy Services by the Completion Date or any other dates agreed by the Parties.
d. The Consultancy Services shall be performed by such employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services as agreed, from time to time by the Parties.
e. The Consultancy Services to be performed as agreed by the Parties, and the Fee(s) shall be set out in the Specification.
The Consultant shall provide the Consultancy Services in such places and locations as agreed by the Parties from time to time.
a. In consideration of the provision of the Consultancy Services in accordance with this Agreement, the engaged business will pay the Consultant the Fee(s).
b. The engaged business acknowledges that the Fee(s) shall be exclusive of any GST that may be charged by the Consultant to the engaged business, and therefore, the Consultant will be entitled to add on GST.
c. The Consultant shall provide the engaged business with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4, and payment shall be made within 7 Days following receipt of the Consultant’s invoice.
d. The invoice referred to in paragraph (d) must include the following details before payment can be approved and forwarded:
i. date of Consultancy Services;ii. name of individual provided by the Consultant;
iii. description of Consultancy Services provided;
iv. the ABN of the Consultant.
e. If the engaged business does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Consultant shall be entitled to do any of the following:
i. charge interest on the outstanding amount at the rate of 5%% per year, accruing daily;
ii. require the engaged business to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
iii. not perform any further Consultancy Services (or any part of the Consultancy Services).
f. When making a payment the engaged business shall quote relevant reference numbers and the invoice number.
5. Consultant’s Personnel
a. The engaged business may, at any time, if it has reasonable grounds which have been disclosed and discussed with the Consultant, by notice in writing to the Consultant, require the Consultant to cease to permit a particular person or persons employed by the Consultant or acting as agents of the Consultant to carry out the Consultancy Services.
b. If the engaged business makes the requirement referred to in paragraph (a), the Consultant must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of the business and provide the services of an alternative person or persons as may be reasonably acceptable.
6. The Engaged Business obligations
a. During the preparation of the Specification and performance of the Consultancy Services the engaged business will:
i. co-operate with the Consultant as the Consultant reasonably requires;
ii. provide the information and documentation that the Consultant reasonably requires;
iii. make available to the Consultant such Facilities as the Consultant reasonably requires; and
iv. ensure that staff and agents co-operate with and assist the Consultant.
b. The engaged business will not charge for the Consultant’s use of the Facilities made available
c. If the engaged business does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Consultant will be paid.
7. No partnership or employment relationship
Nothing in this Agreement constitutes the relationship of employer and employee between the engaged business and the Consultant or between the engaged business and the Consultant’s Personnel. It is the express intention of the parties that any such relationships are denied.
8. Disclosure and ownership of intellectual property
a. The Consultant must communicate to the engaged business promptly and fully all discoveries, improvements and inventions made or conceived by the Consultant or the Consultant’s Personnel (either solely or jointly with others) in the course of performing the Consultancy Services which are similar to the actual or anticipated business, work or investigations or which result from or are suggested by any work performed (Inventions).
b. Any Inventions, whether or not they contain intellectual property rights capable of protection, shall be and remain the sole and exclusive property of the engaged business or its nominees.
c. The Consultant acknowledges that the engaged business (or its associated entities or persons) owns all Intellectual Property created by the Consultant in connection with the Consultancy Services, that now exists or that later comes into existence.
d. The Consultant agrees to indemnify the engaged business fully against all liabilities, costs and expenses which the engaged business may incur as a result of any breach of this clause by the Consultant or the Consultant’s Personnel.
e. The obligations accepted by the Consultant under this clause survive termination or expiry of this Agreement.
a. The Consultant must keep the engaged business, and any Related Body Corporate of the engaged business, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
b. The engaged business and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this Agreement shall also be regarded as Confidential Information and the Consultant agrees that the Consultant’s obligations in paragraph (a) extend to this category of information.
c. The Consultant’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
i. The engaged business, in the case of Confidential Information pertaining to the engaged business; and
ii. The engaged business client, in the case of Confidential Information pertaining to the business of any of the engaged business clients.
d. At the Termination Date, or when earlier directed by the engaged business:
i. all Confidential Information must be returned to the engaged business, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Consultant makes and any software that the Consultant creates based on the Confidential Information; and
ii. the Consultant must erase and destroy any copies of any software containing or comprising the Confidential Information in the Consultant’s possession or under the Consultant’s control or that may have been loaded onto a computer possessed or controlled by the Consultant.
e. The Confidential Information does not include information which:
i. is generally available in the public domain otherwise than as a result of a breach of paragraph (a) by the Consultant; or
ii. was known by the Consultant prior to the engaged business disclosing the information to the Consultant.
f. The Consultant agrees that the engaged business may require any of the Consultant’s Personnel to sign a confidentiality agreement in a form that the engaged business approves, as a condition of the engaged business acceptance of any of the Consultant’s Personnel.
g. The Consultant agrees to indemnify the engaged business fully against all liabilities, costs and expenses which the engaged business may incur as a result of any breach of this clause by the Consultant.
h. The Consultant acknowledges that damages may be an inadequate remedy for breach of this clause and that the engaged business may obtain injunctive relief against the Consultant for any breach of this clause.
i. The obligations accepted by the Consultant under this clause survive termination or expiry of this Agreement.
10. Warranties, liability and indemnities
a. The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services and to the standard generally accepted within the industry, sector or profession in which the Consultant operates for the type of Consultancy Services provided by the Consultant.
b. If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this Agreement including any part of the Specification, then, if requested by the engaged business, the Consultant will re-perform the relevant part of the Consultancy Services, subject to paragraphs (h) and (i) below.
c. The engaged business request referred to in paragraph (b) must be made within 30 days of the date the Consultant completed performing the Consultancy Services.
d. The Consultant shall effect all insurance required to be effected by law including worker’s compensation insurance as prescribed by law for the Consultant’s Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.
e. The Consultant covenants that the Consultant shall be solely responsible for the payment to the Consultant’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Consultant’s employees or agents and to otherwise comply with legislation applicable to the Consultant’s employees and agents.
f. Throughout the continuance of this Agreement the Consultant shall comply at the Consultant’s own cost and expense with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority so far as the same may affect or apply to the Consultant or to the Consultancy Services, and the Consultant shall indemnify the engaged business from and against all actions, costs, charges, claims and demands in respect thereof.
g. The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by the Completion Date or any other date, whether stated in this Agreement or elsewhere.
h. Except in the case of death or personal injury caused by the Consultant’s negligence, the liability of the Consultant under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the engaged business to the Consultant under this Agreement. The provisions of this paragraph (h) shall not apply to paragraphs (f) and (j).
i. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this paragraph (i) shall not apply to paragraphs (f) and (j).
j. The engaged business shall indemnify and hold harmless the Consultant from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the engaged business by the Consultant, its employees or consultants, or supplied to the Consultant by the engaged business within or without the scope of this Agreement.
k. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
l. The Consultant must supply the engaged business with evidence of the Consultant’s ABN and must include this number on any statement provided to the engaged business. The Consultant acknowledges that if the Consultant fails to provide an ABN, then the engaged business is entitled to withhold any proportion of the payments to the Consultant as may be required under the relevant law for tax purposes.
m. The Consultant warrants that the Consultant has no authority to engage the services of any person as an employee or agent of the engaged business.
n. The Consultant warrants that the Consultant shall not incur any liability on behalf of the engaged business or in any way pledge or purport to pledge the engaged business credit or accept any other or make any contract binding upon the engaged business without prior approval being given by the engaged business.
o. The obligations accepted by the Consultant and the engaged business under this clause survive termination or expiry of this Agreement.
a. Either Party may terminate this Agreement by notice in writing to the other if the other Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 30 days’ notice of the breach being given in writing by the notifying Party to the other Party.
b. Either Party may terminate this Agreement upon the happening of any of the following events:
i. the giving of written notice of at least 4 weeks by one Party to the other Party of the intention to terminate this Agreement;
ii. if the engaged business enters into a deed of arrangement or an order is made for it to be wound up;
iii. if an administrator, receiver or receiver/manager or a liquidator is appointed to the engaged business pursuant to the Corporations Act 2001 (Cth); or
iv. if the engaged business would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
c. The engaged business may, at its discretion, pay to the Consultant the equivalent amount of the fees payable by the engaged business to the Consultant during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph (a)(i).
d. Upon termination of this Agreement any fees, expenses or reimbursements payable by the engaged business to the Consultant in respect of any period prior to the Termination Date must be paid within 7 days after the Termination Date.
12.1. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
a. Subject to paragraph (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
b. A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
12.4. Entire agreement
c. This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
d. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
e. No failure or delay by the Consultant in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
f. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
12.6. Agency, partnership etc
g. This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
h. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
12.7. Further assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
i. Subject to paragraph (b), no Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.
j. No Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement or sent by facsimile to the facsimile number of the addressee.
12.11. Work, health and safety
The engaged business is committed to providing a healthy, safe and clean workplace for its employees, contractors and visitors. The engaged business goal is to foster and sustain a positive safety culture. The engaged business commitment is implemented through its work health and safety (WHS) policy and underpinned by a set of WHS and operational procedures throughout the engaged business. The Consultant is required to comply with all relevant work, health, safety and welfare standards and regulations determined or as prescribed by legislation.
12.12. Law and jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.
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