1. PROVISION OF SERVICES AND DELIVERABLES
1.1 During the Term, the Contractor must, and will procure that each of its Personnel must:
(a) provide and deliver the Services and Deliverables:
(i) in accordance with the relevant Statement of Work in all material respects and all reasonable instructions issued by the Company;
(ii) on a professional, competent, and timely basis and in a diligent, skilful manner consistent with the best practices in the Contractor’s industry;
(iii) in accordance with all relevant work, health, and safety legislations and any work, health, and safety practices or policies of the Company; and
(iV) which are fit for their intended purpose.
(b) utilise all of its own Personnel, resources, equipment, and facilities to fulfil its obligations as set forth in the terms of this Agreement.
1.2 During the Term, Company may periodically request written reports concerning Contractor’s progress, project status, cost data, and other matters pertaining to the Services, and the Contractor shall promptly provide such reports to the Company at no additional charge. At either Party’s reasonable request, the Company and the Contractor shall meet on a periodic basis to discuss the Services and/or Deliverables. At such meetings, the Contractor shall notify the Company of any problems related to the provision of the Services and/or Deliverables including all problems which might affect the cost or time for completion of the Services and/or Deliverables and provide a suggested solution to mitigate or eliminate any impact caused by such problem(s). Such meetings may be conducted face to face or if this is not practicable, through the use of video or telephone conference technologies to conduct such meetings.
1.3 In the event that the Contractor engages any Personnel other than the Contractor’s Approved Personnel identified in the relevant Statement of Work to perform or deliver the Services or Deliverables, it shall provide the Company fourteen (14) days written notice.
1.4 All Deliverables are subject to the acceptance by the Company, in its sole discretion (such acceptance not to be unreasonably delayed or withheld), save that the Contractor acknowledges that such acceptance may be dependent on the approval of the Company’s client.
1.5 As full and complete consideration for the completion of Services and Deliverables, the Company shall pay the Contractor the applicable Fees as set forth in the relevant Statement of Work, subject to receipt of a valid tax invoice and acceptance of the Deliverables.
1.6 In addition to payment of the Fees, the Contractor will be entitled to invoice the Company for all reasonable expenses incurred by the Contractor on behalf of the Company provided that such expenses have been approved by the Company in writing prior to the Contractor incurring such expense (Expenses).
1.7 The Contractor agrees that no compensation other than the Fees and Expenses shall be paid by the Company for the Contractor’s performance and delivery of the Services and Deliverables, including for any overages, miscellaneous costs expenses incurred without the Company’s prior written consent.
1.8 The Contractor shall report directly to the Key Contact as specified in the relevant Statement of Work, or any other persons as nominated by the Company from time to time.
1.9 The Contractor acknowledges that the Company shall have the right to seek alternative services and deliverables similar to the Services and Deliverables hereunder from any third party in its discretion, without obligation or reference to the Contractor.
1.10 The Contractor may engage in other work and consulting assignments during the Term. However, the Contractor must immediately and fully disclose to the Company any obligation or interest that the Contractor may have at any time during the term of this Agreement that conflicts, or that may conflict, with the Contractor’s obligations under this Agreement or where such interest competes with the interests of the Company.
2.1 A Statement of Work may be terminated by the Company in the following circumstances:
(a) upon the failure by the Contractor to perform any material obligation under this Agreement or the relevant Statement of Work and where the Contractor does not remedy such failure within seven (7) days (or such other reasonable period of time stipulated by the Company) of notice to do so;
(b) if the Company reasonably believes that the Contractor will not be able to meet its obligations pursuant to the relevant Statement of Work (including not being able to meet the applicable Schedule or Delivery Date set out in the relevant Statement of Work);
(c) the Contractor or any of its Personnel is convicted of a criminal offence involving fraud or dishonesty or an offence which, in the opinion of the Company, affects the Contractor’s obligations under this Agreement;
(d) the Contractor or any of its Personnel conduct themselves in a way tending to bring them or the Company or any Known Party into disrepute;
(e) the Contractor or any of its Personnel has a conflict of interest that cannot be resolved to the satisfaction of the Company; or
(f) by giving 7 days’ notice.
2.2 In the event of termination for any reason under clause 3.1, the Contractor shall only be entitled to a prorated share of the Fees, as calculated by the percentage of Deliverables created by the Contractor and accepted by the Company.
2.3 For the avoidance of doubt, in the event of termination for any reason the Contractor acknowledges that:
(a) the Company shall not be liable to the Contractor for any fees, costs or expenses in relation to the relevant Statement of Work except for those provided for in clause 3.2;
(b) the Company shall not be liable for any damages, including, without limitation, any damages arising from agreements between the Contractor and any third party which relate to the relevant Statement of Work.
3. ASSIGNMENT OF RIGHTS
3.1 The Contractor hereby irrevocably assigns to the Company absolutely all Intellectual Property Rights, upon creation, so that the Company owns all right, title and interest in and to the Deliverables in perpetuity throughout the universe without restriction such that the Company (and any third party authorised by it) will be entitled to use or not use, reproduce, publish, copy, modify, recontextualise, edit, adapt, communicate, transmit, sell, licence, assign, dispose, destroy, and otherwise exploit the Deliverables (in whole or in part) in all media now known or hereafter devised.
3.2 If any part of the Deliverables is the work product of any of the Contractor’s Personnel, the Contractor shall procure from its Personnel a fully executed written assignment agreement, so that the Company shall be the sole and exclusive owner of all Intellectual Property Rights in and to the Deliverables upon creation.
3.3 For the avoidance of doubt, the Contractor may not reproduce, publish, perform nor communicate to the public, the Deliverables, in any form whatsoever including but not limited to its resume, website, portfolio, showreel, or social media, without the prior consent or approval of the Company (not to be unreasonably withheld).
3.4 To the extent that the Contractor or any of its Personnel have any so-called “moral rights” in the Deliverables, the Contractor irrevocably consents (and will procure that each of its Personnel irrevocably consents) to waive all moral rights it may have in such Deliverables. Without limiting the foregoing, the Contractor (and the Contractor shall procure that each of its Personnel) voluntarily and unconditionally consents to any and all acts or omissions by the Company, or any person authorised by the Company (including its licensees and assigns), in connection with the Deliverables, which would otherwise infringe the Contractor’s moral rights in any part or whole of the Deliverables.
3.5 The Contractor acknowledges that it shall not be entitled to any payment, fee or consideration in relation to the Company (or any third party authorised by it) use or non-use of the Deliverables or exercise of any of the foregoing rights, other than the Fee.
3.6 The Contractor shall not directly or indirectly sell, licence, assign, use, or otherwise dispose of any rights (including Intellectual Property Rights) in or to the Deliverables without the prior written approval of the Company.
3.7 At the Company’s written request, the Contractor must do all things and execute all documents which the Company determines is necessary to give effect to the assignments and grant of rights referred to in this clause 4.
3.8 In the event that the Contractor fails to execute and deliver any document or do any act required by this clause 4 within seven (7) days of any request in writing from the Company, the Contractor, irrevocably and for valuable consideration, gives the Company their power of attorney to execute the same for the Contractor.
4. CONFIDENTIAL INFORMATION
4.1 Confidentiality. The Contractor acknowledges that in the performance of its obligations hereunder, the Contractor and its Personnel shall receive or become aware of Confidential Information and any unauthorised disclosure of any part or whole of the Confidential Information would irreparably damage the Company and/or any Known Party.
(a) The Contractor agrees and will procure that each of its Personnel agree that, except as directed by the Company or as permitted in this clause 5, the Contractor and each of its Personnel will not at any time during or after the Term disclose any Confidential Information to any person.
(b) The non-disclosure obligations of the Contractor specified in this Agreement shall not apply to the extent that such Confidential Information:
(i) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the Contractor; or
(ii) becomes known to the Contractor through disclosure by sources (other than the Company or Known Party) that have the legal right to disclose such Confidential Information.
4.3 Limited Use. The Contractor understands and acknowledges that the Contractor and its Personnel are receiving access to Confidential Information in order to facilitate the performance of the Services and Deliverables. The Contractor represents and warrants that neither it nor its Personnel will access, use, nor retain Confidential Information for any purpose other than that necessary to facilitate the performance of the Services and Deliverables unless specifically authorised in writing by the Company. The Contractor will make provisions to keep the Confidential Information partitioned from any third party data. The Contractor shall report to the Company any use or disclosure of Confidential Information of which it becomes aware that is not expressly permitted by this Agreement.
4.4 Deletion of Confidential Information. As soon as possible after any Confidential Information (or a portion thereof) is no longer needed by the Contractor to facilitate the performance of the Services and Deliverables, and in any event upon termination or expiration of this Agreement for any reason, the Contractor shall immediately return to the Company or, in relation intangible or digital Confidential Information, securely and irretrievably delete and/or destroy all Confidential Information (including, without limitation, all electronic copies such as on hard drives, backup tapes, portable devices, optical, magnetic, or other storage media, as well as all hard copies) and provide a certificate of completion of the same.
4.5 Non-Disparagement. The Contractor agrees and will procure its Personnel to agree to not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticise the personal business or the business reputation, practices, or conduct of the Company or any Known Party. The Contractor acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and former, current or potential future clients.
5.1 The Contractor agrees that for a period of twelve (12) months from termination or expiration of the Term, the Contractor will not directly or indirectly in any capacity (whether as a service provider, employee, principal, agent, partner, shareholder, unit holder, joint venturer, director, trustee, beneficiary, manager, consultant or adviser):
(a) canvass, solicit, or endeavour to entice away from the Company (or any of its related bodies corporate) any Known Party;
(b) accept any offer to provide services to any Known Party; or
(c) solicit, interfere with or endeavour to entice away from the Company (or any of its related bodies corporate) any employee, contractor, or service provider who was an employee, contractor, or service provider during the Term.
5.2 In the event of any breach of clause 6.1 to this Agreement by Contractor, in addition to any other rights or remedies available to the Company, the Contractor shall pay the Company, for a period of three years from each breach, an amount equal to 10% of the Contract Value.
6. CONTRACTOR’S PERSONNEL
6.1 The Contractor warrants to the Company that each individual it instructs to provide and/or deliver any part or whole of the Services and Deliverables are the Contractor’s employees, contractors, or subcontractors.
6.2 The Contractor acknowledges that it has the sole responsibility for and warrants that it will ensure payment of any:
(a) workers compensation insurance policies and related payments (e.g. WorkCover, WorkSafe etc);
(b) wages payable to its Personnel;
(c) any income tax payable under any applicable laws with respect to its Personnel; and
(d) any superannuation contributions payable on behalf of its Personnel, to discharge its obligations under the superannuation guarantee legislation.
6.3 The Contractor shall ensure and procure that each of its Personnel complies with any obligation conferred on the Contractor under this Agreement, as if it were a party to it, and agrees to assume responsibility for each of its Personnel’s compliance hereto.
7. REPRESENTATIONS AND WARRANTIES
7.1 The Contractor represents and warrants that:
(a) the Services and Deliverables do not infringe upon nor violate any Intellectual Property Rights, privacy, publicity, property, proprietary, or other right of any third party;
(b) the Deliverables are not misleading, deceptive, or contain any material which is offensive or defamatory;
(c) the technology, equipment, materials, and resources used by the Contractor to provide the Services and Deliverables do not infringe upon nor violate any Intellectual Property Rights, privacy, publicity, property, proprietary, or other right of any third party;
(d) the Contractor will disclose, in advance of delivery to the Company, any Deliverables which are based on existing works of the Contractor;
(e) the Contractor and each of its Personnel has the proper skill, training, and background so as to be able to perform the Services and Deliverables as contemplated by this Agreement;
(f) the performance of the Services and Deliverables hereunder shall not directly or indirectly violate any applicable laws or regulations, or any other agreements or obligations, applicable to the Contractor (or its assets);
(g) the Contractor shall obtain all rights, authorities, assignments, consents, and waivers in favour of the Company from each of its Personnel, consistent with the rights granted herein;
(h) the Contractor is responsible for any costs and fees relating to the Contractor’s business and/or any resources used to perform the Services and Deliverables hereunder, including without limitation, software, hardware, Personnel, premises and technology (unless such resources are provided by the Company); and
(i) the Contractor will not do nor omit doing any action which might reasonably be expected to damage the business and/or reputation of the Company or any Known Party.
7.2 Each Party represents and warrants to the other Party that:
(a) such Party has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder;
(b) this Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and
(c) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
8.1 At all material times, the Contractor must hold and maintain all insurance against any liability the Contractor may incur in relation to the performance of the Contractor’s obligations hereunder. Without limitation, the Contractor shall hold and maintain throughout the Term the following insurances: workers’ compensation, equipment, public liability insurance, and professional indemnity insurance. When required by the Company, the Contractor must produce evidence of the appropriate insurances.
9.1 The Contractor agrees to fully indemnify and hold the Company, its subsidiaries and directors, officers, Personnel, agents, licensors and any Known Party harmless from any loss, damage, proceeding and cost (including all reasonable legal costs), whether in contract, tort, under statute or otherwise, directly or indirectly as a result of (i) the Contractor’s breach or non-performance of any provision or warranty of this Agreement; (ii) any Personnel of the Contractor being found or deemed to be employees of the Company at common law or under statute; (iii) the Contractor’s violation of any applicable law or the rights of any third party; (iv) any allegation that the Services or Deliverables infringe upon a third party’s Intellectual Property Rights or misappropriates a third party’s confidential information; or (v) any allegation of personal or bodily injury or property damage to the extent such injury and/or damage results from the gross negligence or fault of Contractor or its Personnel.
10. GENERAL PROVISIONS
10.1 Independent Contractor. The Parties acknowledge their independent relationship and agree that the relationship between them is solely that of a company and independent contractor and that nothing in this Agreement shall be construed to constitute a different relationship between them, such as that of employer/employee, agent/principal, partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. Personnel of either Party shall not be entitled to benefits of any nature whatsoever provided by the other Party to its Personnel.
10.2 GST. All Fees are exclusive of good and services tax (GST). Subject to the Contractor providing the Company with a tax invoice for the appropriate amount which complies with A New Tax System (Goods and Services) Act 1999, the Company agrees to pay an additional amount of GST if and to the extent the Fee is considered a taxable supply for which the Contractor must account for GST.
10.3 Authority To Contract. Neither Party (nor their respective agents, Personnel or representatives) shall have the right to enter into any contract or agreement on behalf of the other Party. Without limiting the generality of the foregoing, neither Party shall sign any contract on behalf of the other Party, nor accept any payment from any third party of an obligation due the other Party, and shall not make any representation, guarantee, condition, or warranty unless it is expressly authorised in writing by the other Party.
10.4 Force Majeure. Neither Party shall be liable for any failure to perform or for delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control, including without limitation, acts of nature, acts of terrorism, governmental actions, fire, flood, or natural disaster.
10.5 Entire Agreement. This Agreement, including the Statement of Work annexed hereto, and any other Statement of Work issued by the Company and signed by both Parties from time to time, constitutes the entire agreement between the Parties with respect to the subject matter hereof and referenced in this Agreement, and supersedes and terminates any prior agreements between the Parties (written or oral) with respect to the subject matter hereof. This Agreement may not be altered or amended except by an instrument in writing signed by both Parties.
10.6 Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were on the same instrument. Execution and delivery of a facsimile transmission or digitally scanned copy of this Agreement shall constitute, for purposes of this Agreement, delivery of an executed original and shall be binding on the Parties.
10.7 Construction. The headings of the sections of this Agreement are for convenience only and in no way modify, interpret or construe the meaning of specific provisions of this Agreement.
10.8 Severability. In case any part or whole of any provision(s) contained in this Agreement should be held invalid, illegal, reduced, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. Any illegal or unenforceable term shall be deemed to be void and of no force and effect only to the minimum extent necessary to bring such term within the provisions of applicable law, and such term, as so modified, and the balance of this Agreement, shall then be fully enforceable.
10.9 Survival. Regardless of the reasons for the expiration or termination of this Agreement, any term or provision that is intended to survive the expiry or termination of this agreement, shall survive.
10.10 Assignment. Except as provided for in this Agreement, the Contractor must not, without the prior written consent of the Company, subcontract any obligations under this Agreement. The rights and obligations of each Party cannot be assigned, charged or otherwise dealt with and no Party will attempt or purport to do so, without the prior written consent of the other Party.
10.11 Jurisdiction. This Agreement is to be construed and governed by the laws of the State of New South Wales, Australia, without regard for the choice of law rules utilised in that state. Venue shall be proper in any court of competent jurisdiction in the State of New South Wales.
10.12 Non-Waiver. No failure of a Party to exercise any right given it hereunder, or to insist upon strict compliance by the other Party with any obligation hereunder, and no custom or practice of Parties at variance with the terms hereof shall constitute a waiver of such Parties’ rights to demand exact compliance with the terms hereof. Waiver by a Party of any particular default by the other Party shall not affect nor impact such Party’s rights in respect to any subsequent default of the same or of a different nature, nor shall any delay or omission of such Party to exercise any rights arising from such default affect or impair such Party’s rights as to such default or any subsequent default.
Agreement means this Agreement including the Statement of Work attached to this Agreement and any future Statement of Work agreed by the Parties, made a part hereof, as amended from time to time in writing by the Parties.
Approved Personnel means the Contractor’s Personnel expressly listed in the Statement of Work approved to provide goods or services in connection to the relevant Statement of Work.
Confidential Information includes all inventions and information relating to the Company or any Known Party, whether recorded or unrecorded, including but not limited to:
(a) information or materials regarding the historical, current or future business interests, ideas, concepts, plans, methodology or affairs;
(b) financial data;
(c) Personnel information;
(d) products or services;
(e) client contact information;
(f) price lists and pricing methodology;
(h) contact lists and databases;
(i) customer and other statistical information;
(j) marketing or strategic plans and reports;
(k) business proposals;
(l) notes, products, know how, trade secrets or other data;
(m) planning or marketing procedures, techniques or information;
(n) any and all Intellectual Property Rights;
(o) account logins and passwords; and
(p) information relating to this Agreement and any SOW,
which is generally not made available to the public by the owner of such Confidential Information.
Contractor means the Contractor and each of its Personnel.
Contract Value means the total fees set out in the contract between the Contractor and the relevant Known Party or otherwise received by the Contractor from such Known Party, whichever is greater.
Deliverables means the deliverables (individually and collectively) described in the relevant Statement of Work and any and all works, concepts and ideas (whether or not such concepts and ideas are fully fleshed out or realised), and underlying works made, created, or developed by the Contractor in the course of providing the Services (whether or not such works are capable of registration); and any modification, edit, change, adaptation, or appropriation of the foregoing. For the avoidance of doubt, Deliverables includes but is not limited to literary works, designs, graphic design, illustrations, sound recordings, music compositions, artworks, photographs, films, specifications, plans, drawings sketches, calculations, renderings, computer programs, characters, source code, documentation, ideas, concepts, 2D models or designs, 3D models or designs, prototypes, reports or other work produced by the Contractor.
Fees means the fees as outlined in the relevant Statement of Work.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of products, results and proceeds of works made, created and/or developed including not limited to artwork, graphic design work, sketches, drawings, works of craftsmanship, flow charts, algorithms, look and feel, applications, software, sound recordings, cinematograph films, photographs, product design, literary work, manufacturing process, business method or other invention or work of creative authorship, including without limitation all copyrights, trademarks, service marks, trade dress, trade secrets, moral rights, contractual rights of non-disclosure, design and patent rights or other proprietary rights throughout the world;
Known Party means any person, partnership, joint venture, business, company, entity, or other enterprise which the Contractor knows (or ought to have known) that the Company has had or will have business dealings with before, during, or after the Term (including but not limited to clients, customers, artists, designers, film makers, public relations people, digital developers, photographers, strategists, creative, contractors, suppliers, buyers, and agents).
Personnel of a Party means that Party’s officers, employees, agents, contractors and sub-contractors (which include its advisers, suppliers and service providers), together with all such representatives of the Party’s contractors or sub-contractors, and so on.
Statement of Work means the written document agreed by the Parties, incorporated herein by reference to this Agreement, which outlines the details of the Deliverables and Services to be provided by the Contractor and any other terms (including the Schedule and Fee) as amended from time to time by mutual consent of the Parties.
Services mean the services (individually and collectively) described in the relevant Statement of Work, and any other related services as requested by the Company to be performed and provided by the Contractor pursuant to the terms of this Agreement.
Term means a period of twelve (12) months from the date of execution of this Agreement or 30 days after completion of any Statement of Work agreed to during the Term (whichever occurs later), or as otherwise extended by mutual agreement by the Parties.