THIS SUB-CONTRACTING AGREEMENT is made on the date set out in Schedule 1
BETWEEN: The Party whose details are set out in Schedule 2
(hereinafter "the Principal") of the one part.
AND: The Party whose details are set out in Schedule 3
(hereinafter “the Sub-contractor”) of the other part.
A. The Principal requires for its business purposes certain Services (as defined below) from Sub-contractors, and
B. The Sub-contractor has applied to provide the Services to the Principal, and
C. The Principal has agreed to retain the Sub-contractor to provide the Services on the terms and conditions of this Agreement (as defined below)
NOW IT IS AGREED AS FOLLOWS:
PURPOSE DEFINITIONS AND INTERPRETATION
1) This Agreement sets out the terms and condition under which the Sub-contractor is retained by the Principal.
2) In this Agreement unless the context otherwise indicates –
a) a word which denotes
i) the singular includes the plural.
ii) any gender includes the other genders.
iii) a person includes an individual, a corporation, a body corporate, a partnership and a government.
b) a reference to –
i) this Agreement means this Contracting Agreement and where amended means this Agreement so amended.
ii) a clause, subclause, schedule, annexure or exhibit means a clause, subclause, schedule, annexure or exhibit to this Contracting Agreement.
iii) any Party shall mean a Party to this Agreement and its successors and assigns and (except in the case of corporations) heirs, executors and administrators.
iv) a person includes a reference that person’s executors, administrators, legal personal representatives, successors, and permitted assigns.
v) writing includes any communication sent by post, email, SMS, Instant Messanger or facsimile transmission.
vi) any statute, proclamation, rule, code, regulation or ordinance includes all regulations and other instruments under it and all amendments, consolidations, modifications, re-enactments or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it or of any particular provision of it.
vii) any monetary amounts refers to Australian currency.
viii) an authority, institute, association or body, whether statutory or otherwise, will in the event of any such organisation ceasing to exist, being reconstituted, or renamed or replaced or the power or functions or any such organisation be transferred to any other organisation, be deemed to refer respectively to the organisation established or constituted in lieu of any such organisation.
ix) a group of persons includes any one of them.
x) any thing or amount is a reference to the whole and each part of it.
xi) any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced.
c) The word or words –
i) "month" and "year" mean respectively calendar month and calendar year.
ii) "include" (in any form) when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind.
iii) "GST" means "Goods and Services Tax" and has same meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act") and any other related words appearing in the GST Act have the same meaning as defined in that Act.
iv) "person" means and includes a natural person, a corporation, a firm or any other legal entity whether acting as a trustee or not.
v) "Confidential Information" means all and any information in whatever form relating to the business of the Principal which has been disclosed by the Principal in confidence or which might reasonably be understood to have been disclosed to the Principal in confidence and which is not readily available in that form in the public domain, and shall include:
(1) any trade secrets, technical data, inventions, designs, drawings, hardware configuration information, formulas, specialised know-how, performance reports, operations reports, competitive advantages or disadvantages, of the Principal, and its affiliates and their customers, clients, and agents;
(2) any profit and loss statement, or profitability figures, or trial balance, or contract listing, or debtors reports, or turnover figures or marketing reports maintained by the Principal and any information listed therein;
(3) the profitability and pricing of contracts, tenders, and bids made by or to the Principal and any other financial information in relation to the business of the Principal which are or may be of commercial value to a competitor;
(4) the name, credit card numbers or information, address, telephone number, email, and account number of any Customer or potential customer or supplier of or to the Principal.
vi) "Fee" when expressed as a monetary figure in relation to a taxable supply shall be inclusive of GST.
d) Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
3) Headings in this Contracting Agreement are for convenience only and do not affect the interpretation or construction of the clauses to which they relate.
4) No rule of construction applies to the disadvantage of a Party because this Agreement is prepared by or on behalf of that Party.
5) This Agreement supersedes any and all agreements between the parties, whether oral or written, in relation to the matters referred to herein.
6) This Agreement constitutes the entire agreement of the parties in respect of the subject matter and its terms and conditions, and no representations, inducements, promises or agreements oral or otherwise not embodied herein shall have any force or effect other than as expressly provided in this Agreement, or subsequent to the date hereof in writing signed by the Party to be bound thereby.
CONTRACT FOR SERVICES
7) In this Agreement "Services" means any and all of the services set out in Schedule 4.
8) In this Agreement "Site" means any and all of the sites, premises, and locations set out in Schedule 5.
9) The Principal retains the Sub-contractor to provide the Services and the Sub-contractor agrees to provide Services to the Principal at the Site.
10) This Agreement shall be deemed to have commenced on the date hereof and shall continue until terminated.
11) The Sub-contractor shall –
a) Do all acts and things necessary to provide the Services which are requested from time to time by the Principal in consideration of any and all relevant ethical guidelines, funding guidelines, applicable government body requirements and registering boards.
b) Use its best endeavours to provide the Services requested by the Principal at the Sites and during such times and dates as may be nominated by the Principal.
c) Ensure that no injury or damage is caused to persons or to property on the Site and that no trespass to property is committed, arising out of or in connection with this Agreement.
d) Maintain an unrestricted registration with the relevant registering board.
e) Maintain appropriate and adequate professional insurance.
f) Ensure continuous eligibility for and active possession of a Medicare Australia Provider Number.
g) Attend external clinical supervision.
h) Keep up to date with relevant and current research and training that may assist in service delivery.
12) The Sub-contractor warrants that the Services provided hereunder will be performed -
a) in a highly professional manner, in accordance with best practices in the industry then in effect for the Services provided hereunder,
b) in a proper and workmanlike manner, and
c) to the reasonable satisfaction of the Principal’s client’s.
13) The Sub-contractor shall comply with all of the Principal’s policies, conditions and workplace rules, as nominated by the Principal in writing from time to time.
14) Where the Sub-contractor is required to provide or utilise equipment, such equipment shall be suitable for the performance of the Services and shall be maintained by the Sub-contractor in good working condition.
15) The Sub-contractor is the sole authorised representative in this contract.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
16) The Sub-contractor shall not at any time during or subsequent to this Agreement:
a) divulge or disclose any Confidential Information which has come into its possession as a result of this Agreement to any third party; or
b) use the Confidential Information except to the extent necessary for the purposes of this Agreement; or
c) make any internal or public announcements in relation to the Confidential Information.
17) The restrictions imposed by the preceding numbered clause:
a) do not prevent discussion of this Agreement at closed meetings of shareholders and directors of the Sub-contractor; and
b) shall not apply to the disclosure of any Confidential Information which is required to be disclosed by law or becomes generally known to the public (other than as a breach of this Agreement) or is required to be disclosed by the Sub-contractor in order for that Party to obtain financial or legal advice provided that the Sub-contractor shall require those persons to whom it discloses the Confidential Information, to also comply with the preceding numbered clause.
18) The Sub-contractor covenants that it will not between the commencement of this agreement and the date 12 months after termination of this Agreement:
a) Canvass, solicit, or endeavour to entice away from the Principal any customer or business associate of the Principal;
b) Solicit, interfere with or endeavour to entice away any employee of the Principal; or
c) Counsel, procure or otherwise assist any person to do any of the acts referred to in this clause.
19) The Sub-contractor shall upon request of the Principal display affix and maintain the business name, trade marks and logos of the Principal upon any machinery, vehicles, work clothes or other equipment utilised in the course of the Services whether supplied by the Principal or by the Sub-contractor or otherwise.
20) The Sub-contractor agrees that all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, logos, trademarks or trade secrets, conceived, developed, generated or produced pursuant to the Agreement by the Sub-contractor resulting from or relating to the provision of the Services, including documentation, flow charts, diagrams, reports, writings, and data (“Work Product”) shall become the sole and exclusive property of the Principal.
21) If this Agreement is terminated for any reason, the Sub-contractor shall promptly return and deliver to the Principal all written and portable forms of Confidential Information, excluding client files, and Work Product and all copies thereof in its possession, custody or control. This obligation will survive the termination of the Agreement.
22) The Sub-contractor agrees to record and maintain client files including but not limited to personal information, case progress notes and reports in accordance with all relevant laws, ethical guidelines and registering boards. This obligation will survive the termination of the Agreement.
FEE FOR SERVICES
23) In consideration of the Sub-contractor providing Services and performing its covenants in Accordance with this Agreement the Principal will pay the Sub-contractor as the sole monetary consideration for the Services the Fee specified in Schedule 6.
24) It shall be a condition precedent to the payment by the Principal of Fees to the subcontractor that the Principal renders to the subcontractor an invoice that provides all such particularization, calculation, and quantification of the invoiced fees as required by law
25) The Sub-contractor shall unless otherwise required by the Principal render to the Principal tax invoices at the frequency and on the days of the week or month that are indicated in Schedule 7. This clause shall not apply if Sub-contractor has not rendered a taxable supply to the Principal in the period following a prior tax invoice.
26) If the Fees payable to the Sub-contractor include re-imbursement for any disbursement or expense of the Sub-contractor it shall be a precondition to the payment of so much of the invoiced Fee that relates to that disbursement or expense that the Sub-contractor render together with its tax invoice an invoice or receipt or other proof of payment for or liability for such disbursement or expense.
27) All Fees for the Services provided by the Sub-contractor shall be invoiced in the name of the Sub-contractor. The Principal shall not be obliged to pay any Fee in respect of Services rendered by the Sub-contractor to a third party.
28) The Principal will pay undisputed fees within 14 days of the end of the month
NON-EXCLUSIVE CONTRACT FOR SERVICES ONLY
29) The parties acknowledge and agree that the Sub-contractor is acting as an independent Sub-contractor in providing the Services and that this Agreement does not create any partnership, or other joint venture or enterprise between the parties.
30) The parties acknowledge and agree that this Agreement is not a contract of service and that the Sub-contractor (and any of its directors, agents, representatives, or delegates) is not an employee of the Principal and that it is the express intention of the parties that any such relationship is denied.
31) Nothing in this Agreement, and no verbal or written communication between the parties, whether prior to or after this Agreement, will be construed as an express or implied employment agreement or a promise by the Principal to employ the Sub-contractor or any of its agents representatives or delegates.
32) The Sub-contractor shall provide at its own expense for the Sub-contractor’s use in the course of providing Services the plant, machinery, equipment and materials specified in Schedule 8.
33) Any plant, machinery, equipment, clothing, trade marks, ideas, logos and materials supplied by the Principal to the Sub-contractor in connection with the provision of Services shall remain the legal and beneficial property of the Principal and the Sub-contractor shall promptly return such plant, machinery, equipment, clothing, trade marks, logos and materials to the Principal promptly upon termination of this Agreement.
34) Any plant, machinery, ideas, equipment and materials supplied by the Sub-contractor in accordance with this Agreement shall remain the legal and beneficial property of the Sub-contractor except to the extent that such plant, machinery, equipment and materials has been consumed or affixed to the real property of the Principal’s customers in the ordinary course of the Services.
35) The Sub-contractor acknowledges and agrees that the Principal -
a) makes no commitment to require Services implying the payment of a minimum periodic amount of fees to the Sub-contractor, and
b) does not engage the Sub-contractor on an exclusive basis, and
c) is not responsible for knowing the Sub-contractor’s dependence on revenues from Services provided at the request of the Principal.
36) The Principal acknowledges that the Sub-contractor –
a) makes no commitment to provide Services to the Principal on an exclusive basis, and
b) shall be at liberty to enter into contracts, commitments, and commercial arrangements with third parties involving the provision of services including but not limited to services within the Sub-contractor’s qualifications and experience.
37) Subject to the preceding numbered clause, the Sub-contractor shall use its best endeavours to inform and keep informed the Principal as to the availability of the Sub-contractor to provide Services in accordance with this Agreement. To give effect to this clause the Sub-contractor shall upon request of the Principal provide regularly in advance a diary or timetable of the dates and times in the forthcoming week fortnight or month during which it is available or unavailable to provide Services to the Principal and shall thereafter use its best endeavours to avoid committing or contracting itself to third parties on the dates and times during which it has nominated itself as being available.
38) The Sub-contractor understands and acknowledges that:
a) the Sub-contractor is not entitled to receive from the Principal any wages, loadings, superannuation contributions, paid annual holidays, paid public holidays, long service leave, sick leave, Pay As You Go payment summaries, workers compensation cover, or other statutory or common law benefits that the Principal grants to its employees; and
b) the Principal will not withhold any income tax from any monies or fees paid to the Sub-contractor pursuant to this Agreement
39) The parties agree that the Principal will not be liable for any damages under any circumstances arising from this Agreement or the Services even if advised of the possibility of such damages or if such damages are foreseeable and the Sub-contractor’s sole and exclusive remedy arising from this Agreement shall be payment by the Principal for any Services satisfactorily performed by Sub-contractor prior to termination.
40) The parties agree and declare that nothing in this Agreement, and no verbal or written communication between the parties, whether prior to or after this Agreement, will be construed as a promise or obligation by Company to obtain any Services from the Sub-contractor in any particular volume or amount during any particular period of time.
41) The Sub-contractor agrees to release, hold harmless and indemnify the Principal from any and all claims and liabilities relating to the Sub-contractor’s financial stability which may result from the Principal’s termination of this Agreement for any reason whatsoever.
42) Sub-contractor will defend, indemnity and shall keep indemnified and hold harmless the Principal and its affiliates and their officers, directors, employees, shareholders, customers, agents, successors, and assigns from and against any and all loss, damage, liabilities, settlement, costs, or expense (including legal expenses and the expenses of other professionals) as incurred, resulting from or arising out of –
a) a breach of any terms of this Agreement by the Sub-contractor or any person supplied by the Sub-contractor;
b) the negligence of, or personal injury or property damage caused by, the actions or inactions of the Sub-contractor or any person supplied by the Sub-contractor;
c) any claim by the Sub-contractor or any person supplied by the Sub-contractor for any benefits offered by the Principal to its own employees; and
d) any claim which alleges the Services or any Work Product (as defined above) infringes upon, misappropriates or violates any third party patents, copyrights, trademarks or trade secret rights or other proprietary rights.
43) The Sub-contractor shall take and maintain during the operation of this Agreement insurances against its own potential liabilities as specified in Schedule 9 in such amount of cover as may be specified in Schedule 9. The Sub-contractor shall obtain certificates of currency in respect of all such insurances, and shall forthwith upon receipt provide copies or originals of such certificates to the Principal.
44) The parties shall execute such documents and do such things as may be required in order to give full force and effect to the terms and conditions of this Agreement.
EMPLOYEES AND SUB-CONTRACTORS
45) If this Agreement prohibits a Party from doing a thing then:
a) That Party shall do everything necessary to ensure that the Party's employees, servants, consultants, Sub-contractors, agents and invitees do not do that thing; and
b) The Party may not allow or cause any person to do that thing.
46) If this Agreement requires a Party to do a thing then that Party shall do everything that is necessary to ensure that that Party's employees, servants, consultants, Sub-contractors, agents and invitees also do that thing.
47) This Agreement may be terminated by either Party giving the other Party 4 weeks notice.
48) Notwithstanding the preceding numbered clause, either Party may terminate this Agreement for fundamental breach by the other Party providing that notice is given in writing which specifies the breach and such termination shall take effect upon service of such notice.
49) Except as otherwise provided in the Agreement the Principal’s rights and entitlements under this Agreement shall not merge upon Termination of this Agreement and shall remain in force and may be enforced by the Principal in any court of competent jurisdiction.
50) Each Party shall pay its own legal costs and expenses in relation to the negotiation, preparation and execution of this Agreement.
NOTICES AND SERVICE
51) Any notices, notification, nomination, approval or consent required or permitted by this Agreement shall be in writing and shall be properly executed if signed by an officer, manager, director, Authorised Representative, or solicitor of the Party giving it.
52) A document required or permitted to be served by this Agreement may be served by leaving it at or sending it by ordinary pre-paid post or by facsimile to the relevant officer or manager or Authorised Representative of a Party at the address of the Party set out in this Agreement or such other address as may be subsequently notified. A document sent by post will be deemed to be served at the time when it would be delivered in the ordinary course of post. A document sent by facsimile will be deemed to be served on the date of dispatch.
WAIVER AND SEVERABILITY
53) The non-exercise of or delay in exercising any power or right of a Party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of that power or right. A power or right may be waived only in writing, signed by the Party bound by the waiver.
54) The Principal and the Sub-contractor agree and declare the obligations and restrictions in this Agreement to be reasonable in all the circumstances of the Agreement and each and every one of the covenants, obligations, and restrictions and each and every part thereof shall be deemed to be a several and independent covenant, obligation, and restriction to the intent that, if they shall, taken together, go beyond what is reasonable in all the circumstances, but would be adjudged reasonable with any one or more such covenants, obligations, or restrictions or any one or more parts thereof deleted, the covenants, obligations, and restrictions herein contained shall be deemed to apply as if such covenants, obligations, and restrictions or parts thereof as are so adjudged reasonable were deleted.
55) No covenant declaration or other provision hereof shall be construed to be dependent upon any other covenant declaration or provision unless so expressed herein.
56) This Agreement shall be governed by, construed, and take effect in accordance with the laws of the State of Australia identified in Schedule 10 and the parties irrevocably submit to the jurisdiction of that State. In the event that Schedule 10 does not identify a state it shall be deemed to nominate the State in which the business address of the Principal as identified in Schedule 2 is situated.
57) The Sub-contractor agrees to comply at its own expense with all applicable laws, orders, and regulations in performing services under the agreement including all privacy, confidentiality and consumer protections laws.
58) This Agreement may be amended, varied or replaced only by a document executed by the Party to be bound by the amendment, variation, or replacement.
59) Any conflict between this Agreement and any other document, exhibit, email or any other writing will be resolved in favour of this Agreement unless such other document, exhibit, email or other writing specifically states that the parties intend to supersede this Agreement.
60) This Agreement may be executed in two or more counterparts and any such counterpart shall have the full force and effect as if it were an original of the Agreement bearing the signatures or seals of each and every Party.
61) This Agreement shall bind each Party’s legal personal representatives, successors, and assigns.
62) Each Party acknowledges that it has not, in entering into this Agreement, relied upon any warranty, representation or statement, whether oral or written, made or published by any other party or any person on behalf of any other party or otherwise in connection howsoever with the subject matter of this Agreement, except such as are expressly provided herein and subject thereto and has relied entirely upon its own enquiries relating to the subject matter of this Agreement. The Parties agree that to the extent that each of them may exclude any warranties or conditions which might otherwise be implied in connection with this Agreement or the subject matter of this Agreement by any competent legislation, then each Party hereby expressly excludes from application all such implied warranties or conditions.
The parties hereto have executed this agreement on the date hereinbefore first written (meaning on the date set out in Schedule 1).