Clarity Call Booking Page

Services Agreement

Terms

1. Interpretation
   • Definitions

In this Agreement the following definitions apply:

Additional Fee/s are fees in addition to the Fee that arise out of Change Requests.

Additional Services means any additional services provided by us beyond the Services agreed in the Services Proposal.

Agreement means this Services Agreement, the Services Proposal and includes any schedules and annexures.

Australian Consumer Law means Services Proposal 2 of the Competition and Consumer Act 2010 (Cth).

Background IP means Intellectual Property developed, owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the Term, other than for the sole purpose of this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.

Business Day means the days that our bank is open for business in Sydney, New South Wales.

Change Requests means the written request made by either party for changes to the Services, method of work, or any other work done under this Agreement, where such requests for change, acceptance of requests, and changes will only be effective following, and will be subject to, the procedures set out in clause 9.1.

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise arising out of, or in connection with the Agreement.

Commencement Date means the date on we sign and accept this Agreement after it has been signed by you or the date specified in the Services Proposal as the date we commence providing the Services.

Confidential Information of a party means all information of a confidential nature, including financial, customer and employee information, supplier information, specifications, processes, statements, formulae, trade secrets, designs and data, which is not in the public domain, except by a breach of the confidentiality obligations arising under this Agreement.

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:

• incidental, special, remote or unforeseeable loss or damage;
• loss of revenue, profit, income, opportunity, use, business, contract, goodwill, or anticipated savings, loss caused by business interruption, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;
• costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
• loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.

Data means data owned or supplied by you, or which may otherwise be generated, compiled, arranged or developed through the use of the Services.

Details means your details in the Services Proposal about both of us including:

• the name of the person who you can contact on our behalf
• your contact details such as email and phone number.

Exclusions means services we will not be providing to you as part of the Services as specified in the Services Proposal and/or as communicated to you by us during the Term.

Fee means the total price payable for the Services, set out in the Services Proposal and payable in accordance with the Services Proposal and as may be amended as a result of a Change Request.

GST means the goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to trade marks, copyright, patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to Confidential Information, trade secrets, know-how, inventions, discoveries, geographical indications of origin, code, source code, microcode, methods, techniques, formulae, algorithms, modules, libraries and databases and further includes the right to apply for the registration or grant of any such intellectual property.

Material means all material other than Background IP, in whatever form, including documents, reports, products, equipment, information, data, graphic layouts, images and software, prepared and provided by us to you in connection with the Services.

Services:

• means the services we have agreed to provide to you specified in the Services Proposal; and
• includes any Additional Services.

Services Proposal means our service proposal document that details:

• the Fees payable by you to us
• the Services that we will supply to you (including inclusions and Exclusions)
• your Details.

Term means the term of this Agreement which commences on the Commencement Date and ends on the date we determine is the completion of the delivery of the Services.

Third Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into the Services.

Third Party Rights means Intellectual Property Rights owned by or licensed to third parties including:

• computer programs owned by third parties and licensed by us and any of our subcontractors to provide the Services; and
• any literary, dramatic, artistic and musical works owned by third parties and licensed to us for inclusion in the Services.

• Interpretation
  • In this Agreement:
    • words such as including and for example do not limit the meaning of the words preceding them;
    • no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
    • all monetary amounts are expressed in Australian Dollars ($AUD); and
    • the parties must perform their obligations on the dates and times fixed by reference to Sydney, New South Wales.
  • In this Agreement:
    • reference to we, us, ours is a reference to A Bespectacled Life; and
    • reference to you, yours is a reference to you specified in the Services Proposal as the contracting party to whom we will deliver the Services.
  • Precedence

If there is any inconsistency between provisions or the documents comprising this Agreement, this order of precedence applies:

• the Services Proposal; and
• the terms of this Agreement.

2. Legally binding agreement
   • By executing the Services Proposal, you agree to enter into and be bound by the terms of this Agreement.
   • This Agreement applies to all transactions between us and you, relating to the provision of the Services and constitutes a separate legal agreement in respect of each Services Proposal.
3. Term

This Agreement commences on the Commencement Date and continues for the Term.

4. Basis of engagement
   • We are a non-exclusive independent contractor to you. Nothing in this Agreement is intended to create an employment or agency relationship between us and you.
   • You acknowledge and agree that unless the Services Proposal says otherwise, we do not provide the Services to you on an exclusive basis and we may provide the same or similar Services to persons who operate the same or similar businesses to your business wherever located.
5. Your Obligations

You will work with us to facilitate the provision of the Services in a timely manner and in a way which maximises our ability to provide the Services including by:

• fully co-operating with us;
• providing us with all information, documentation and instructions necessary to provide the Services in a timely fashion;
• ensuring you pay the Fees in accordance with the Services Proposal; and
• complying with all applicable laws.

We will not be liable to you or any third party for any breach or non-performance of our obligations under this Agreement cause or contributed to by your acts or omissions.

You acknowledge that any significant delay or failure to comply with this clause 5 may result in us:

• exercising our rights in accordance with clause 20.2; or
• upon written notice to you, suspending our obligations to perform the Services until you rectify your breach(es) under this clause; and
• all money owing by you to us under this Agreement for Services rendered or completed, wholly or in part, will immediately become due and payable by you to us.

You shall ensure that you provide those things specified in this clause promptly after a request from us. We shall not be liable for the late delivery of the Services where you have not complied with this clause.

6. Our Obligations

We will:

• perform the Services with due care and skill in a timely and professional manner;
• endeavour to provide the Services in accordance with this Agreement;
• comply with all applicable laws and maintain any licences or authorisations to provide the Services.

7. Our delay
   • We will notify you, stating reasons and the methods proposed to remedy the situation if we have not provided the Services in accordance with our agreed timetable with you.
   • You have no right to terminate where we comply with this clause.
8. Your Delay
   • We will give notice to you if we reasonably consider that we are unable to perform our obligations under this Agreement as a result of your default or any delay caused by you in providing us with any necessary documents, assistance or access (if needed) to your existing information technology infrastructure.
   • Promptly following such notice, we will jointly determine with you (and record in writing) in accordance with Change Request the period of any resulting delay.
   • Our Additional Fees which relate to the delay are to be payable in accordance with the procedure for determining the Fees and invoicing in clause 12 and 13 of this Agreement.
9. Request for changes
   • Change Request

If you submit a Change Request to us for changes to the Specifications, we will have 20 Business Days to prepare and submit a change request quote to you for consideration (Change Request Quote).

• Change Request Quote
  • If we submit a Change Request to you it must be accompanied by a Change Request Quote.
  • You have 20 Business Days from submission of the Change Request Quote to consider whether to accept or reject the Change Request Quote.
  • Failure to accept the Change Request Quote within the prescribed time period results in the Change Request Quote lapsing.
  • Any acceptance of the Change Request Quote must be in writing and signed by you and us.
  • If you accept the Change Request Quote:
    • this Agreement is amended to the extent necessary to incorporate the Additional Fees, Additional Services, terms, Specifications and timing to Project Milestones contained in the Change Request and the Change Request Quote;
    • we will carry out and complete the Change Request in accordance with its terms.

10. Fees

In consideration for us providing the Services to you, you must pay us the Fees in accordance with the Services Proposal.

11. Invoices
    • We will issue an invoice to you for the Fees in accordance with the Services Proposal or if not specified, upon completion of the Services.
    • Unless otherwise provided, you must pay an invoice within 7 days of the date of the invoice (Due Date).
    • All Fees are payable without set off or deduction.
    • You are responsible for all fees and charges associated with the payment of the Fees. We reserve the right to charge you an amount which represents the amount we are charged by any payment processor or merchant facility.
12. Dispute of invoices
    • If you dispute any invoice issued under clause 11, you must:
      • notify us of the amount in dispute and the reason for dispute by the Due Date; and
      • pay any amounts not in dispute.
    • The parties must resolve any dispute under this clause 12 in accordance with clause 23.
    • If it is resolved that some or all of the amount in dispute should have been paid by the Due Date, you must pay the amount finally resolved together with interest on that amount calculated in accordance with clause 13(a)(i).
13. Failure to pay
    • If you do not make a payment by the Due Date, we are entitled to:
      • charge interest on the outstanding amount at a rate equivalent to the reference rate charged by our principal bank, accruing daily;
      • suspend provision of the Services until such time as payment is received;
      • terminate this Agreement without notice; and/or
      • recover any losses suffered by us as a result of your failure to pay.
    • We will not be liable to you for any loss or damage of any description you suffer or incur because we exercise any one or more of our rights under clause 13.
14. GST
    • Unless otherwise specified, the Fees are exclusive of GST.
    • If GST is payable in respect of a supply made under or in relation to this Agreement, you must pay to us, an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by you in addition to and at the same time as any consideration for the supply.
15. Confidential Information
    • Protection of Confidential Information

Each party must keep confidential any Confidential Information disclosed to it or made available to it by the other party.

• Removal of Confidential Information

At the reasonable request of the party to whom the Confidential Information belongs, each party must deliver, erase or destroy all electronic and physical documents in its possession or control that contain Confidential Information.

• Return exceptions

If a party must retain the other party's Confidential Information for the purpose of:

• complying with any law;
• litigation;
• internal quality assurance and record-keeping; or
• performing its obligations or exercising its rights under this Agreement,

it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 15.2 promptly after it is no longer required for this purpose.

16. Intellectual Property
    • Background IP will remain our sole property. You do not acquire any right, title or interest in or to the Background IP by virtue of this Agreement or the disclosure or use of the Background IP during the performance of the Services, other than as expressly set out in this Agreement.
    • We own all Intellectual Property rights existing in connection with the provision and creation of the Services, the Material and our Background IP.
17. Acknowledgement and Attribution

You authorise us to use its name and logo, together with a summary of the Services in the form of a case study, marketing and a visual aid of the end product as part of our demonstration materials.

18. Warranties
    • Mutual warranties

Each party represents and warrants to the other party as at the Commencement Date and during the Term that:

• it has full power and authority to enter into, perform and observe its obligations under this Agreement, and that its execution, delivery and performance of this Agreement has been duly and validly authorised by all necessary corporate action; and
• its obligations under this Agreement are valid, binding and enforceable.

• Our warranties to you

We represent and warrant to you as at the Commencement Date and at all times during the Term that we have the level of skill, knowledge, experience and ability which may be reasonably expected of a professional organisation or individual, as applicable, experienced in providing services of the type and complexity of the Services.

• No warranties in relation to completion or content

We provide no warranty or guarantee:

• that any result or objective can or will be achieved or attained through the provision of the Services; or
• as to the suitability of the Services or the content of the Materials for any purpose other than that specified in the Services Proposal, which we may interpret, and apply using its experience, skill and judgment, to provide the Services.

19. Disclaimer

We will use reasonable endeavours to provide the Services in accordance with any timeline agreed between the parties and subject to the necessary cooperation and assistance of you. However, any such timeline is indicative only and we make no warranty or representation that the Services will be provided according to that timeline.

20. Termination
    • Termination for cause

Either party may terminate this Agreement by notice with immediate effect if the other party:

• commits a material breach of the Agreement that is not capable of remedy;
• commits a material breach of the Agreement capable of remedy, and does not remedy that breach within 10 Business Days after receipt of notice of the breach; or
• is bankrupt, or is liquidated or wound up, or if a controller, administrator, receiver, manager or similar insolvency administrator is appointed to a party, or over any substantial part of its assets.

• Suspension or termination by us for your default
  • We may suspend the Services or immediately terminate this Agreement by notice to you, if:
    • you fail to pay us any money due and payable;
    • if we issue a notice to you that we intend to terminate this Agreement pursuant to this clause 2 if payment of the outstanding amount, plus interest, is not received within 10 Business Days of you receiving the notice; and
    • you continually delay in fulfilling your obligations to us that results in a continued delay in providing the Services;
    • you fail to make payment of the outstanding amount plus interest within 10 Business Days of receiving a notice in accordance with the clause 2(a)(ii).
  • We are not liable to you in anyway if we suspend the Services or terminate this Agreement under this clause.
• Consequences of Termination
  • If this Agreement is terminated by us under clause 1 or 20.2 or 22, all money owing by you to us under this Agreement will immediately become due and payable by you to us.
  • If you terminate this Agreement without cause you are liable to pay the balance of the Fee that would have otherwise been payable to us had you not terminated this Agreement (the Termination Fee). The Termination Fee is a genuine pre-estimate of the loss we suffered as a result of your termination of this Agreement.
• Preservation of rights

Expiry or termination of this Agreement for any reason does not affect any rights of either party against the other which arose prior to the time at which such termination or expiry occurred, or which otherwise relate to or which may arise at any future time for any breach or non-observance of obligations under this Agreement occurring prior to the termination or expiry.

21. Indemnity
    • Mutual indemnities
      • Subject to the limitation of liability under clause 1, each party (Indemnifying Party) indemnifies the other party (Indemnified Party) and their directors, employees and representatives (together, Indemnified Persons) against all and any reasonable Claims (including, but not limited to, reasonable legal costs and defence or settlement costs) directly arising out of:
        • any fraudulent or unlawful act or omission of the Indemnifying Party or its representatives;
        • any damage to or loss or destruction of real or personal property caused or contributed to by any act or omission of the Indemnifying Party or its representatives; and
        • any third-party Claim,

except to the extent the liability, loss, damage, cost or reasonable expense is caused or contributed to by the act or omission of the Indemnified Persons or its representatives.

• It is not necessary for a party to incur expense or make a payment before enforcing a right of indemnity conferred by this clause 1.

22. Force Majeure
    • For the purposes of this Agreement, Force Majeure means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement.
    • If a Force Majeure event prevents us from providing the Services, we will notify you of the Force Majeure event and the anticipated impact on our performance of the Services.
    • If a Force Majeure event continues for more than 30 Business Days, either party may terminate the Agreement by written notice to the other without liability for damages of any kind, including for Consequential Loss.
23. Dispute Resolution
    • The parties must use reasonable endeavours to resolve any dispute through negotiation.
    • If, within 10 business days the dispute cannot be resolved following negotiation between the parties, either party may refer the dispute for mediation.
    • The parties agree to negotiate in good faith to agree on the appointment of a mediator, or failing agreement, as appointed by the President of the New South Wales Law Society.
    • The costs of the mediator are to be borne equally between the parties.
    • If a party fails to adhere to the terms of this clause 23 and proceedings are subsequently issued by the defaulting party, this clause can be used as a bar to any proceedings so issued.
    • If the dispute cannot be resolved through mediation, either party may commence proceedings.
24. Liability and Exclusion
    • Limitations on liability
      • To the fullest extent permitted by law, the total liability of a party to the other party under or in connection with this Agreement in respect of all Claims will not exceed the Fees paid or payable for the Services.
      • We will not be liable for any loss or damage suffered by you as a result of any deficiency or alleged deficiency in any Service which is attributable to:
        • the use of any Third Party IP or asset in the provision of the Services;
        • any use of the Services by you;
        • incorrect or inaccurate information provided by you; or
        • failure by you to provide sufficient information for us to perform the Services.
      • Implied terms
        • Subject to clause 2(b), any condition or warranty which would otherwise be implied in this Agreement is excluded.
        • Pursuant to s64A of the Australian Consumer Law, this clause applies regarding any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law is limited:
          • to re-supplying the Services; or
          • making full payment for the cost of having the services supplied again.
        • Exclusion of consequential loss

Neither party is liable to the other for any kind of Consequential Loss arising out of or in connection with this Agreement.

• Australian Consumer Law

Nothing in this Agreement is intended to limit or exclude your consumer guarantees under the Australian Consumer Law.

25. General
    • Notice
      • A notice, consent, approval, waiver or other communication provided in connection with this Agreement must be in writing (Notice).
      • A Notice may be given by hand delivery, post or by email and is effective upon receipt.
    • Entire agreement

This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the subject matter of this Agreement.

• Subcontracting

We may, at our sole discretion, subcontract, assign or delegate any part of its obligations, rights and responsibilities under this Agreement, provided that we will not be relieved of its obligations.

• Waiver and variation

A provision of the Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.

• Counterparts

This Agreement may be signed in any number of counterparts.  All signed counterparts taken together constitute one agreement.

• Severability

If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of the Agreement.

• Survival

Termination or expiration in whole or in part of the Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 14 (GST), clause 15 (Confidential Information), clause 16 (Intellectual property), clause 18 (Warranties), clause 20.3 (Consequences of Termination), clause 23 (Dispute Resolution), clause 24 (Liability and Exclusion) and clause 25.8 (Governing law and jurisdiction).

• Governing law and jurisdiction
  • This Agreement is governed by the laws in force in New South Wales, Australia.
  • The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.