Specialist Agreement
RECITALS
A. The Shift is a supplier of event management services.
B. The Shift. has agreed to use the Services of the Contractor and the Contractor has agreed to provide those Services on the terms and conditions set out in this Agreement.
OPERATIVE PART
1. Definitions and Interpretation
This agreement is governed by the law in the State of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts of that State.
In the interpretation of this Agreement
(a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(b) Words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and vice versa; references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
(c) Grammatical forms of defined words or phrases have corresponding meanings;
(d) Parties must perform their obligations on the dates and times fixed by reference to the standard time for the location of the Event, or if the location of the Event is not fixed, by reference to the capital city of New South Wales;
(e) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) If anything which by its nature needs to be done on a business day, and the day on or by which it is to be done falls on a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
(g) References to a party are intended to bind their executors, administrators and permitted transferees; and
(h) Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
2. Services
(a) The engagement of the Contractor commences on the date specified at Item 1 of Schedule A and continues until the date specified at Item 2 of Schedule A, or until terminated in accordance with this Agreement.
(b) The Shift and the Contractor enter into the arrangements on the terms set out herein for the provision by the Contractor of Services to The Shift as described in Item 4 of Schedule A.
(c) The Contractor warrants the provision of the Services will not breach the terms of any other binding arrangement.
(d) The Contractor will comply with all reasonable time limits imposed by The Shift for the performance of the Services.
(e) The Contractor will provide the Services in a professional manner to the required standards and be liable for rectification of any work not up to the required standards.
(f) The Contractor must comply with the policies and procedures adopted by The Shift in the conduct of its business.
(g) The Contractor will act with good faith in all of the Contractor’s dealings with The Shift and whilst performing the Services, the Contractor will not intentionally do anything which is harmful to The Shift
3. Equipment
The Contractor will provide its own equipment in the provision of the Services. Any additional equipment deemed necessary by The Shift will be provided by, and remain the property of, The Shift.
4. Fees and expenses
(a) The Shift agrees to pay to the Contractor the fee specified in Item 3 of Schedule A.
(b) At the end of each period specified in Item 6 of Schedule A the Contractor will submit an invoice, in approved format, for the work completed by the Contractor in the amount agreed or calculated at the rate agreed from time to time and payment will be made within seven days thereof.
(c) The total amount of the invoices submitted by the Contractor to The Shift pursuant to Clause 4(b) above shall not exceed the fee specified in Item 3 of Schedule A, unless agreed otherwise between the parties in writing.
(d) The Shift agrees to reimburse the Contractor for all expenses that are reasonably and necessarily incurred in the performance of the work and that have been consented to by The Shift in writing prior to their purchase.
5. Statutory obligations, insurances and registrations
(a) The Contractor will comply with its statutory obligations in respect of the Services, including but not limited to compliance with:
(i) any applicable industrial awards and agreements;
(ii) minimum terms and conditions of employment including those in respect of long service leave, annual leave, parental leave and sick leave;
(iii) applicable industrial relations and anti-discrimination legislation; and
(iv) occupational health and safety and workers compensation legislation.
(b) Prior to the date of this Agreement, the Shift recommends the contractor to obtain current policies of insurance, in respect of the Services, against:
(i) all third party risks in relation to persons and property including public liability insurance (a minimum cover of $5,000,000);
(ii) workers compensation claims (to the extent required by law); and
(iii) negligence by the Contractor,
(c) The Contractor acknowledges it is solely responsible for all remuneration, expenses, taxes, leave entitlements, superannuation, workers’ compensation and other insurances in respect of it.
(d) The Contractor will obtain and maintain until the termination of this Agreement any licences or registrations required for the Contractor or its employees to perform the Services.
6. Confidential information
(a) The Contractor shall not at any time or for any reason, whether during the term of this contract of after its termination divulge any confidential information to any third party and they hereby indemnify The Shift and any related entity against any loss or damage they may suffer as a result of the breach of confidentiality.
(b) The Contractor shall cause any person assisting the Contractor to sign an acknowledgement of their obligations to observe the confidentiality to the same extent as the Contractor.
7. Intellectual property
(a) The Contractor acknowledges that the intellectual property in all works of the Contractor or its servants or agents in the course of the fulfilment of the Contractor’s obligations hereunder are the absolute property of The Shift and that the Contractor shall do all things and sign all documents that may be necessary to vest such intellectual property in The Shift.
(b) The Contractor irrevocably appoints The Shift to be the Contractor’s attorney to do all things and sign all documents that may be necessary to vest such intellectual property in The Shift
8. Relationship of parties
The Contractor’s relationship with The Shift. is that of independent Contractor. Neither the Contractor nor The Shift has (nor may it represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name. Nothing stated in this Agreement must be construed as constituting the Contractor and The Shift. as partners, or as creating the relationship of employer and employee, master and servant or principal and agent between the parties.
9. Indemnity
(a) The Contractor indemnifies The Shift from and against any costs, damages, loss or liability of any kind (including legal costs and disbursements in defending or settling the claim giving rise to same) however suffered or incurred by The Shift by virtue of the provision of the Services or any breach of this Agreement by the Contractor.
(b) The indemnity contained in clause 9(a) extends (without limiting the generality of the foregoing) to any costs, damages, loss or liability (including legal costs and disbursements in defending or settling the claim giving rise to the same) incurred by The Shift by virtue of any injury or disability suffered by any employee or sub-contractor of the Contractor, arising by whatever legal theory (whether statutory, tortious or otherwise).
10. Termination by notice
Either party may terminate this Agreement by one month’s written notice to the other.
11. Termination without notice
(a) THE SHIFT. may immediately terminate this Agreement if the Contractor:
(i) fails to comply, in The Shift’s reasonable opinion, with The Shift’s standards of Services, as set out in Item 7 of Schedule A;
(ii) commits any serious or persistent breach of this Agreement which is in the reasonable opinion of The Shift incapable of rectification; or
(iii) fails to remedy, to The Shift’s reasonable satisfaction, a breach of any provision of this Agreement within one week of receiving a notice from The Shift identifying the breach and requiring the breach to be remedied; or
(iv) becomes bankrupt or goes into liquidation or makes any assignment arrangement or composition with creditors of the Contractor on the happening of the event; or
(v) is subject to a finding of guilt for a criminal or civil offence, other than an offence which, in the reasonable opinion only of The Shift. does not affect the Contractor’s ability to perform their duties; or
(vi) an employee in the performance of Services commits any act of misconduct, fraud or dishonesty; or
(vii) the Contractor ceases business; or
(viii) the Contractor, or a nominated employee of the Contractor for delivery of the Services, becomes of unsound mind.
(b) The Contractor may immediately terminate this Agreement by giving written notice to The Shift, if The Shift:
(i) commits any serious or persistent breach of this Agreement, which is in the reasonable opinion of the Contractor incapable of rectification; or
(ii) commits any serious or persistent breach of this Agreement which The Shift. fails to remedy within one week after The Shift receives written notice from the Contractor of that breach; or
(iii) is placed under some form of official management or insolvency administration.
(c) On termination of this Agreement, and after receipt of an appropriate invoice from the Contractor, The Shift will pay to the Contractor the amount of any fee and reimbursement of approved expenses owing pursuant to this Agreement, up to and including the date of termination. The Shift may set-off and deduct from any amount owed to the Contractor including payments made in advance against unfinished works that The Shift will require to be completed by others.
(d) The termination of this Agreement will not prejudice any rights or remedies already accrued to any party under, or in respect of any breach of this Agreement.
12. Delivery upon termination
(a) Upon termination of this Agreement, the Contractor must:
(i) immediately deliver to The Shift any hardware, software, plant or equipment owned by The Shift the possession of the Contractor and all documents, plans, lists, inventions, and intellectual property arising out of the work undertaken by the Contractor or any other person working for the Contractor for The Shift; and
(ii) disclaim any association with the business of The Shift.
13. Post termination restraint
The Contractor agrees that for a period of 12 months it will not directly or indirectly endeavour to entice away from The Shift or any of its related entities any person or organization who is a client, employee, customer or contractor of The Shift or any of its related entities.
14. Dispute resolution
(a) If a dispute arises out of or relates to this Agreement (including any dispute as to breach or termination of the agreement or as to any claim in tort, in equity or pursuant to any statute) neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.
(b) Notice specifying the nature of the dispute
(i) The party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party to this Agreement specifying the nature of the dispute.
(ii) On receipt of the notice referred to in this clause by that party, both parties must endeavour to either resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, or determination or similar techniques agreed by them.
(c) Mediation
(i) If the Contractor and The Shift. do not agree within seven days of receipt of the notice (or such further period as agreed in writing by them) as to:
(1) The dispute resolution technique and procedures to be adopted;
(2) The timetable for all steps in those procedures; and
(3) The selection and compensation of the independent person required for such technique,
then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of New South Wales.
(ii) The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
(d) Proceedings
If the mediation referred to above is not completed within four weeks of reference to a mediator either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
(e) Associated costs
The costs of the mediation will be borne equally by the parties.
15. Notices
A communication required by this agreement, by a party to another, must be in writing and may be given to them by being:
(a) delivered personally; or
(b) posted to their address specified in this agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting; or
(c) faxed to the facsimile number of the party with acknowledgment of receipt received electronically by the sender, when it will be treated as received on the day of sending; or
(d) sent by email to their email address, when it will be treated as received on that day.
16. Counterparts
This agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.
17. Costs
Each party will pay their own costs in relation to this agreement.
