GLOEDE & ASSOCIATES PTY LTD t/a The Financial Foreman 621 505 262 of Level 3 / 97 Pirie St ADELAIDE SA 5000 (Consultant).
BACKGROUND
The Client wishes to receive accounting services, as more particularly described in schedule 1.
The Consultant has the skills, background and experience in providing accounting services
The Client wishes to engage an independent contractor to provide the Consultancy Services to the Client.
The Consultant is willing to provide the Consultancy Services and the Client is willing to appoint the Consultant to provide the Consultancy Services, all in accordance with the provisions of this agreement.
OPERATIVE PROVISIONS
Definitions and interpretation
Definitions
In this agreement, the following words 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 [insert date on which the consultant is to start performing the consultancy services].
Completion Date means such other date as the Parties may agree.
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 Client in the course of the Client’s 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.
Consultancy Services has the meaning given to the term in schedule 1.
Consultant’s Personnel means any person or persons that the Consultant designates to perform the Services on the Consultant’s behalf.
Facilities means working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system etc, and includes not only access to such resources but also use of them to the extent required by the Consultant in order to perform the Consultancy Services.
Fees means the amount in Schedule 3.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Information includes information [optional: whether of a technical, commercial or any other nature] provided directly or indirectly in oral, electronic or documentary form or by way of models, biological or chemical materials or other tangible form or by demonstrations and whether before, on or after the date of this agreement.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature.
Named Consultant(s) means Joshua David Gloede, Director, Certified Practice Accountant.
Parties means the Consultant and the Client, and Party means either one of them.
Purpose means the same as in the Specification.
Specification means the specific Consultancy Services to be provided by the Consultant under this agreement. The Specification is set out in schedule 2 to this agreement].
Interpretation
In this agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
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;
the headings to the clauses and schedules of this agreement are not to affect the interpretation;
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
the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
Consultancy Services
Services provided by the Consultant
The Consultant will provide the Consultancy Services according to the Specification to the Client. This is in consideration for the Client paying the Fee to the Consultant, subject to the provisions of this agreement.
The Consultant and the Client will agree the time and place for the performance of the Consultancy Services [optional: subject to the availability of the Consultant’s staff and agents].
The Consultant will start providing the Consultancy Services the date agreed between the Consultant and the Client.
The Consultancy Services will be provided by the dates agreed by the Parties / by the Completion Date.
Standard of services
The Consultant must use reasonable endeavours to complete the Consultancy Services including the provision of data, materials or reports] by the date(s) agreed by the Parties.
The Consultancy Services must be performed by such employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services.
The Client acknowledges and agrees that time is not of the essence for:
any dates or times when Consultancy Services are due to be performed;
the length of time that any Consultancy Services will take to perform as agreed by the Parties; and
any date or time when the Consultancy Services will be completed by as agreed by the Parties.
The Client acknowledges and agrees that time is of the essence for:
Payment of the Consultancy Service Fees;
Responding to the Consultant’s correspondence;
Signing or executing any documents required by the Consultant.
Professional bodies
Because of the Consultant’s qualification as a CPA, the Consultant provides the Consultancy Services subject to the requirements and obligations of CPA Australia and Tax Practitioners Board. These may limit or override any provisions of this agreement or the Specification or anything else agreed by the Parties. In particular, the Consultant is required to comply with the following:
APES325 Risk Management for Firms
CPA Australia’s Constitution, By-Laws and APESB Standards
Tax Practitioners Board Code of Conduct
CPA Australia’s Professional And Ethical Standards
In addition to the rights and remedies provided under this agreement or available under law, the Client may also use the following rights available to it because of the Consultant’s membership of Tax Practitioners Board Code of Conduct and CPA Australia.
The Consultancy Services call for the provision of opinions and advice and assistance. The Parties acknowledge and agree that the Consultant may give an opinion or an interpretation on a set of facts or an issue provided by the Client which is fully in accord with its obligations under this agreement and in accordance with his obligations as a member of the Tax Practitioners Board and CPA Australia. However, another member of the above may give a different opinion or interpretation on the same facts or issue.
Specification
From the Commencement Date the Parties will discuss and agree the Consultancy Services to be carried out by the Consultant. What has been agreed by the Parties, the time estimates for the provision of the particular Consultancy Services, and the Fees to be paid will be set out in the Specification.
The Consultant is responsible for preparing the Specification.
The Specification will be provided to the Client on its completion.
For the Consultant to commence providing the Consultancy Services as stated in the Specification, the Client must first provide a signed copy of the Specification to the Consultant to indicate the Client’s acceptance of the content of the Specification and that the Client is willing for the Consultant to provide the Consultancy Services in accordance with the Specification.
The Specification may be varied or added to as agreed by the Parties from time to time, in writing. Any variation or addition to the Specification shall be clearly indicated (including the additional or different Fees to be paid by the Client).
Location
The Consultant will provide the Consultancy Services in such places and locations agreed by the Parties from time to time.
Acceptance
Unless otherwise provided for in the Specification, where any stage of performing the Consultancy Services requires the approval or acceptance of the Client, the following will apply:
the Consultant will indicate in writing to the Client that a stage has been reached in the performance of the Consultancy Services requiring the approval or acceptance of the Client (Approval Notice);
if the Client does not notify the Consultant of any matters concerning the quality or content of the Consultancy Services provided to that stage within 7 days of receiving the Approval Notice, then the Client will be deemed to have approved the performance of the Consultancy Services up to that stage; and
where the Consultant has completed performing the Consultancy Services, the Client will be deemed to have accepted or approved them within 7 days of the Consultant:
notifying the Client that the Consultancy Services had been completed;
supplying any final report to the Client; or
sending a final invoice to the Client.
Fees
In consideration of the provision of Consultancy Services in accordance with this agreement, the Client will pay the Consultant the Fees.
If the engagement involves the use of trust monies, the Consultant will manage those funds in accordance with APES 310 Dealing with Client Monies.
Where the Consultant’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
The Fees are exclusive of any GST that may be charged by the Consultant to the Client, and therefore, the Consultant will be entitled to add on GST.
The Consultant will provide the Client with a tax invoice in accordance with the GST Law in relation to remuneration payable under this clause.
Payment of any tax invoice must be made by the Client to the Consultant within 7 days following receipt of the Consultant’s invoice.
The invoice referred to in clause 6(d) must include the following details before payment can be approved and forwarded:
date of Consultancy Services;
name of individual provided by the Consultant;
description of Consultancy Services provided;
time allocated per task; and
the Consultant’s ABN.
The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, photocopying, courier services, postage.
The Consultant is entitled to invoice the Client [weekly / monthly / as specified in the Specification / on completion of the Consultancy Services / on the Completion Date].]
If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, the Consultant is entitled:
to charge interest on the outstanding amount at the rate of 5% per year above the base lending rate of the Reserve Bank of Australia, accruing daily;
to require the Client to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
not to perform any further Consultancy Services (or any part of the Consultancy Services).
When making a payment the Client must quote relevant reference numbers and the invoice number.
Client’s obligations
During the performance of the Consultancy Services the Client will:
co-operate with the Consultant as the Consultant reasonably requires;
provide the information and documentation that the Consultant reasonably requires;
make available to the Consultant such facilities as the Consultant reasonably requires;
ensure that the Client’s staff and agents cooperate with and assist the Consultant;
Provide accurate and truthful instruction and information to the Consultant; and
Disclose any off-shore accounts or assets to the Consultant;
The Client will not charge for the Consultant’s use of the Facilities made available by the Client.
If the Client does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, any additional costs and expenses which are reasonably incurred by the Consultant will be paid by the Client.
The Client will reimburse all reasonable expenses properly and necessarily incurred by the Consultant in the course of providing the Services, provided that the Consultant:
obtains the Client’s written consent before incurring the expenses; and
provides the Client with acceptable documentation for the expenses incurred.
The Client is responsible for full disclosure of all relevant information.
The Client is responsible for its own record keeping relating to its affairs.
The Client provided us with <insert details of information or paperwork provided> records relating to your affairs.
The Client is responsible for the reliability, accuracy and completeness of the particulars and information provided to us, and, if the Service include financial reporting, the accounting records and disclosures of all material and relevant information provided to us. Accordingly, any advice given to The Client is only an opinion based on our knowledge or your particular circumstances.
The Client is responsible for retaining paperwork for as long as legally required.
If the Service includes taxation services:
The Client has obligations under self-assessment to keep full and proper records in order to facilitate the preparation of accurate returns
The Client must retain paperwork for a period of five years after the assessment as The Client may be subject to an Australian Taxation Office review.
The Client is responsible for checking the assessment before submission to ensure accuracy.
Provision of reports
The Consultant will provide special purpose financial reports as agreed by the Parties together with the Consultant’s invoice.
Unless otherwise agreed by the Parties:
the Client will be entitled to 1 copy of any report provided by the Consultant;
the Reports must not be shared or relied on by third parties and remain subject to a persistent obligation of confidentiality after termination of this Agreement;
the Client will be entitled to use any reports for the Client’s own internal purposes only;
the Client will not be entitled to publish any reports (or sell or make the reports available to third parties), or allow any other person to do so; and
the copyright and database right (and all other Intellectual Property rights) in the reports (or any other material created or prepared, whether or not provided to the Client, by the Consultant in performing the Consultancy Services) will belong to the Consultant.
Confidentiality
The Consultant must keep the Client’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
Clause 9(a) also applies to Confidential Information of the Client’s related bodies corporate.
The Client and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this agreement will also be regarded as Confidential Information and the Consultant agrees that the Consultant’s obligations in clause 9(a) extend to this category of information.
The Consultant’s obligations with regard to the Confidential Information will continue for so long as this information is maintained on a confidential basis by:
the Client, in the case of Confidential Information pertaining to the Client’s business; and
the Client’s relevant client, in the case of Confidential Information pertaining to the business of any of the Client’s clients.
At the termination of this agreement, or when earlier directed by the Client:
all Confidential Information must be returned to the Client, 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
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.
The Confidential Information does not include information which:
is generally available in the public domain otherwise than as a result of a breach of paragraph 9(a) by the Consultant; or
was known by the Consultant prior to the Client disclosing the information to the Consultant.
The Consultant agrees that the Client may require any of the Named Consultants to sign a confidentiality agreement in a form that the Client approves, as a condition of the Client’s acceptance of any of the Named Consultants.
The Consultant agrees to indemnify the Client fully against all liabilities, costs and expenses which the Client may incur as a result of any breach of this clause by the Consultant.
The Consultant acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that the Client may obtain injunctive relief against the Consultant for any breach of this clause 9.
The obligations accepted by the Consultant under this clause 9 survive termination or expiry of this agreement.
Use of subcontractors
The Consultant is permitted to use other persons to provide some or all of the Consultancy Services.
The Consultant is responsible for the work of any of the Consultant’s subcontractors.
Subject to clause 10(d), any work undertaken by any of the Consultant’s subcontractors is to be undertaken to the same standard as agreed by the Parties.
To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of the subcontract.
Where the Consultant uses the services of a subcontractor, not all of the subcontractors may need to be members of the Tax Practitioners Board and or CPA Australia. Therefore, they may not owe the same duties as the Consultant in regard to the services provided by those subcontractors.
The Client 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.
If the Client makes the requirement referred to in clause 10(f), the Consultant must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of the Client’s business and provide the services of an alternative person or persons as may be reasonably acceptable to the Client.
Warranties, liability and indemnities
The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services 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].
If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially] in breach of this Agreement, then if requested by the Client, the Consultant will re-perform the relevant part of the Consultancy Services. The Client’s request must be made within 1 months of termination of this agreement.
The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in this agreement or the Specification or elsewhere.
The Consultant must take out all insurance required to be effected by law including workers’ compensation and public liability insurance for a minimum of an amount to be agreed for each occurrence. The Consultant accordingly does limit its liability, whether in contract, tort, negligence, breach of statutory duty or otherwise to that amount.
The Client must 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 Client by the Consultant, its employees or consultants, or supplied to the Consultant by the Client within or without the scope of this agreement.
Each of the Parties acknowledge 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.
Termination
If any Named Consultant becomes unavailable and the Parties cannot agree on a suitable replacement to perform the Consultancy Services then either Party may terminate this agreement by written notice to the other Party.
Notwithstanding anything in this agreement to the contrary, either Party may terminate this agreement by notice in writing to the other if the 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.
Notwithstanding anything in this agreement to the contrary the Client may terminate this agreement at any time by notice in writing to the Consultant, if the Consultant or any of the Named Consultants is guilty of any dishonesty, serious misconduct or serious neglect of duty, in or in connection with the provision of the Consultancy Services.
Notwithstanding anything in this agreement to the contrary, either Party may terminate this agreement upon the happening of any of the following events:
the giving of at least 30 days written notice by 1 Party to the other Party of the intention to terminate this agreement;
if the Client enters into a deed of arrangement or an order is made for it to be wound up;
if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
On termination of this agreement, the Client must pay for all Consultancy Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Consultant for the performance of the Consultancy Services prior to the date of termination.
In the event of termination of this agreement in any circumstances and for any reason whatsoever:
the Client must deliver, and require that its employees, agents and subcontractors deliver, to the Consultant all drawings, documents, materials, data, confidential information and any other property of the Consultant which are in the possession or control of the Client or the Client’s employees, agents or subcontractors at the date of termination; and
the Client must after delivering all drawings, documents, materials, data, confidential information and any other property of the Consultant destroy any copies or backups of the same created by the Client.
On termination of this agreement, the Client must pay for all Consultancy Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Consultant for the performance of the Consultancy Services prior to the date of termination within 7 days
Ipso Facto Legislation
If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:
time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,
and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.
General
Force majeure
Neither Party has 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 including:
riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition, or compulsory acquisition by any governmental or competent authority;
ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
An act of God, pandemic, epidemic, earthquakes, flood, fire, lightning, storm, explosion, celestial events, solar flare, solar radiation, magnetic field reversal, magnetic field dissipation, electromagnetic pulse, coronal mass ejection or other physical or natural disaster;
strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this contract;
strike, lockout or other interference with work, blockade, disturbance, , governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability; or
delay in obtaining governmental or quasi-governmental approvals consents permits licenses authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected.
Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this contract must immediately notify the other party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfil its or their obligations under the contract.
Upon completion of the event of force majeure the party affected must as soon as reasonably practicable recommence the performance of its obligations under this agreement. Where the party affected is the consultant, the consultant must provide a revised programme rescheduling the consulting services to minimise the effects of the prevention or delay caused by the event of force majeure.
An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
If such circumstances continue for a continuous period of more than 12 months, either Party may terminate this agreement by written notice to the other Party.
Amendments
This agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Assignment
Subject to clause 13.3(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.
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.
Entire agreement
This agreement contains the whole agreement between the Parties in respect of the subject matter of agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
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.
Waiver
No failure or delay by the Consultant in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor will 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.
The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
Agency, partnership or employment
This agreement does not constitute or imply any employment, partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
Neither Party may, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
Further assurance
Each Party to this agreement must 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.
Severance
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. It will not in any way affect any other circumstances of or the validity or enforcement of this agreement.
Set-Off
The Client is not entitled to set-off or deduct, counterclaim, withhold, deduct, or claim a lien to whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement.
13.10. Announcements
Subject to clause 13.10(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 all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms.
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.
13.11.Non-disparagement
Subject to clause 13.11(b) on and from the date of this agreement, each party must not:
make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so and must take all reasonable steps to prevent its Representatives from doing so
Clause 13.11(a) shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:
promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.
13.12.Notices
A notice or other communication connected with this agreement has no legal effect unless it is:
in writing in English;
sent to the address, fax number or email address of the relevant party as set out in the agreement (or such other address, fax number or email address as the relevant party may notify to the other party from time to time) as the relevant party may notify to the other party from time to time; and
delivered/sent either:
personally;
by commercial courier;
by pre-paid post;
if the notice is to be served by post outside the country from which it is sent, by airmail;
by fax; or
by e-mail.
A notice is deemed to have been received:
if delivered personally, at the time of delivery;
if delivered by commercial courier, at the time of signature of the courier’s receipt;
if sent by pre-paid post, 48 hours from the date of posting;
if sent by airmail, five days after the date of posting;
if sent by fax, at the time shown in the transmission report generated by the machine from which the fax was sent;
if sent by e-email, four (4) hours after the sent time (as recorded on the sender’s email server), unless the sender receives a notice from the party’s email server or internet service provider that the messages has not been delivered; or
if sent by text message or instant messaging, immediately after receiving a read receipt of notification that the message is delivered, unless the sender receives a notice from the party’s telecommunication provider or messaging platform that the message has not been delivered.
except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:00 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.
To prove service, it is sufficient to prove that:
in the case of post – that the envelope containing the notice was properly addressed and posted;
in the case of fax – the notice was transmitted to the fax number of the party; and
in the case of email – the email was transmitted to the party’s email server or internet service provider.
In the case of text and instant messaging – the message was transmitted to the party’s mobile device or user account on the applicable messaging platform.
13.13. Work, health and safety
The Consultant shall comply with all relevant work, health, safety and welfare standards and regulations determined by the Company or as prescribed by legislation.
13.14.Counterparts
This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
13.15.Electronic Exchange
Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
If the Client delivers an executed counterpart of this agreement under clause 13.14:
it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
in any legal proceedings relating to this agreement, the Client waives the right to raise any defence based upon any such failure.
13.16.Third Party Rights
This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
13.17.Accrued Rights
Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
13.18.Severability
If a provision of this agreement is invalid or unenforceable in a jurisdiction:
it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.
13.19.Survival
The obligations of the parties relating to confidentiality, reports, non-disparagement and intellectual-property will survive the termination of this agreement.
13.20.Fair Usage
The Client agrees to use the Service of the Consultant with the following reasonable use policy:
on average, 95% of timed calls made from your service last no more than an hour
We can collect information and investigate whether you are complying with the reasonable use policy. If we find that you aren’t, and you do not comply within 30 days of us telling you, we may change or suspend your Service.
This policy applies to services provided by the Financial Foreman and aims to ensure that the Financial Foreman is able to provide quality services to all of its Client’s and that no Client is disadvantaged by the conduct of others.
13.21.Law and jurisdiction
This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of South Australia, Australia.
The parties irrevocably agree that the courts of South Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).
Agreement
If you agree to terms of this Service Agreement, please sign below. Please return a copy of the signed document to us and keep a copy for your own records.
Executed as an agreement.
Signed for and on behalf of [Client name and ACN] by its authorised representative in the presence of:
Director/Secretary
Director
Print name
OR Executed by the Director of [Client company] _______________________________ in their capacity as Director in accordance with Section 127(1) of the Corporations Act 2001 (Cth): Signed: _______________________________________________ Name: _______________________________________________ Date: ________________________________________________
Signed for and on behalf of GLOEDE & ASSOCIATES PTY LTD t/a The Financial Foreman 621 505 262 of Level 3 / 97 Pirie St ADELAIDE SA 5000 in the presence of:
Witness
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Consultancy Services
[Investigating / Reviewing] the [work / implementation of [specify]].
Reviewing the Client’s requirements concerning the Purpose [, advising on the [choice of (specify)] / the appropriate choices] to meet such requirements and preparing a report of recommendations concerning the Client’s requirements].
Assisting with the work of the [specify] concerning the Purpose.
[Assisting in / Conducting / Participating in] negotiations concerning the Purpose.
Reviewing [documentation / material / electronic and other data] concerning the Purpose, providing a report with [recommendations / steps for further action / a summary of the contents].
Providing advice concerning the Purpose.
Attending [site] meetings concerning the Purpose [, and making recommendations and preparing a report of the recommendations].
Making recommendations and recording the recommendations in a report.
Supervising the [work / installation] of [specify], conducting acceptance testing for the Client and providing a report concerning the installation and running of [specify].
Performing such other tasks in relation to the Purpose as may be agreed by the Parties from time to time.
