SERVICE AGREEMENT

 

Parties

Consultant: Synergy IQ Pty Ltd ACN 626 083 261 of Level 4, 63 Pirie Street, Adelaide SA 5000 ("Consultant").

Client: The client specified in Annexure 1 of this Agreement ("Client")

Background

  1. The Consultant offers services to corporate organisations to improve their operational, financial, and strategic performance through effective organisation change management programs and professional services.
  2. The Consultant has agreed to provide the Services to the Client and the Client has agreed to accept those Services from the Consultant on the terms set out in this Agreement. 

Agreed Terms

  1. Interpretation
    1. In this Agreement, unless the context otherwise requires:

      Agreement means this Service Agreement (including the Annexures to this Agreement) as varied and replaced pursuant to this Agreement.  

      Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in South Australia.  

      Commencement Date means the date specified in Annexure 1 of this Agreement.  

      Confidential Information of a party means all information:

      1. provided by a party or its employees, agents, officers or adviser, including without limitation, trade secrets, technical information and technical drawings, product and market information, financial information and information concerning, or related to, the personnel, procedures, policies, customers, suppliers, business plans or business strategies of the party; 
      2. designated as confidential or which the party informs is confidential; and  
      3. whether disclosed before or after the date of this Agreement; but excludes any information: 
        1. provided to a party by a third party who was not subject to any obligation or duty of confidence at the time the information was provided; 
        2. developed independently without use of the whole or any part of the Confidential Information; or
        3. that is available to the public (otherwise than by disclosure in breach of this Agreement). 

      End Date means the date specified Annexure 1 of this Agreement.

      Intellectual Property Rights or IP means all current and future registered and unregistered rights in respect of copyright, designs, databases or internet marketing based data, websites, access to websites, trademarks, trade names, business names, trade secrets, Know-How, Confidential Information, patents, inventions and discoveries.

      Know-How means all technical data and other information and know-how which is not in the public domain including, without limitation, notes, reports and information comprising or relating to concepts, discoveries, data, designs, formulae, ideas, inventions, methods, models, procedures, specimens, designs for experiments and tests and results of experimentation and testing, processes, prototypes, specifications and techniques, manufacturing data and information contained in submissions to regulatory authorities (including copyright in each of the same).  

      Payment Terms means the terms for payment of the Service Fees being fourteen (14) days from the date any invoice is rendered or otherwise specified in Annexure 1 of this Agreement.  

      Parties means the Client and the Consultant.  

      Services means the services to be provided by the Consultant pursuant to this Agreement, which are more particularly described in the Annexure 1 and will be provided in accordance with the methodologies and practices standard to the Consultant.  

      Service Fees means the fees payable by the Client to the Consultant for the Services, as specified in Annexure 1.  

      Standard Rates means the hourly rates outlined in Annexure 1 of this Agreement.  

      Term means the Term of this Agreement which commences on the Commencement Date and ends on the End Date outlined in Annexure 1 of this Agreement.  


    2. Interpretation
      In this Agreement: neuter includes masculine and feminine; singular includes plural and vice versa; reference to a person includes a body politic or corporate, an individual and a partnership and vice versa; reference to a party includes a successor to the rights or obligations of that party under this Agreement; headings do not affect construction; no rule of construction applies to the disadvantage of a party because that party put forward this Agreement or any portion of it; another grammatical form of a defined word has a corresponding meaning.

  2. Duration of Agreement
    This Agreement commences on the Commencement Date and ends on the End Date, unless extended in writing by the Parties or terminated prior to the End Date in accordance with clause 14.

  3. Provision of Services
    1. The Consultant shall undertake, and be responsible for, the Services identified in Annexure 1 during the Term and on the terms and conditions of this Agreement.
    2. The Client agrees to accept the provision of the Services in accordance with clause 3.1 for the Term and on the terms and conditions of this Agreement. If the Client requires the Consultant to provide any services in addition to the Services listed in Annexure 1, then unless otherwise agreed in writing, the Client will pay for those additional services at the Standard Rates.
    3. If the Client is in breach of this Agreement then the Consultant may, in its absolute discretion, suspend the provision of the Services until such time as the breach is remedied.
    4. The Client shall exclusively engage the Consultant to provide the Services to the Client during the Term and must not engage any other person to provide any or all of the Services during the Term.
    5. The Consultant may at any time subcontract all or any of the Services but only with written approval by the Client on such terms and conditions as the Parties determine. To the extent that all or any part of the Services has been subcontracted to a subcontractor by the Consultant with the approval of the Client, the Consultant will not be liable to the Client for the acts, defaults and negligence of any subcontractor and, for the avoidance of doubt, such acts, defaults and negligence are not deemed or taken to be the acts, defaults or negligence of the Consultant.
    6. The Consultant must exercise reasonable skill and care in the performance of the Services and will comply with all applicable legislation, regulations and standards.
    7. The Consultant will provide the Client with a pre-engagement check list. The pre-engagement checklist will define the prerequisites that must be performed prior to the provision of the services. The Client is responsible for the accuracy and completeness of all data provided.

  4. Service Fees
    1. The Client must pay the Service Fees in accordance with the Payment Terms.

  5. Payment Terms
    1. The Client must pay for the Services in accordance with the Payment Terms.

  6. Service Reviews
    1. Service reviews may be conducted monthly or quarterly as determined by the Consultant in its discretion.
    2. The review is aimed to assess the utilisation of services. Based on the outcome of these reviews, adjustments may need to be made to the service delivery planned to better align with the Client’s evolving needs and ensure optimum utilisation of the Services. These changes will be made at the discretion of the Consultant.

  7. Expenses
    1. Travel or other out of pocket expenses are not included in any Service Fees and will be billed separately to the Client with an additional 10% administration fee to be added to all costs.

  8. Fee Review and Adjustments
    1. Any daily fees for the Change Management Lead Consultant and Change Partner as outlined in this Agreement will be reviewed annually commencing on the first anniversary of the Commencement Date.
    2. Any fee adjustments will take into consideration factors such as:
      1. Changes in market rates for consulting services of a similar nature;
      2. Changes in the scope or complexity of the Services provided;
      3. Significant variations in customer price index or other relevant economic indicators;
      4. Any changes in applicable tax rates or Government imposed charges.
    3. In the absence of an agreed adjustment the current fees will continue to apply until such time as a new agreement is reached.
    4. The Consultant agrees that any fee adjustments resulting from an annual review will not exceed 10% unless otherwise mutually agreed between the parties in writing.
    5. In the event of a significant change in the economic environment (for example, inflation exceeding 5% per annum) both parties may agree to a review of the fees.

  9. Responsibilities, acknowledgements, representation and warranties of the Client
    1. The Client:
      1. Agrees to provide any assistance, support, documentation, premises, system information and access to employees, directors and representatives of the Client as may be necessary to allow the Consultant to perform the Services.
      2. Acknowledges and agrees that:
        1. The Consultant, in providing the Services, will be using, interpreting and relying on the information and/or documentation provided by the Client;
        2. The Consultant will not be undertaking any independent verification of the accuracy or completeness of any of the information and/or documentation provided by the Client;
        3. if any information and/or documentation that is provided to the Consultant is incorrect, inaccurate, inadequate or incomplete such information and/or documentation may have a corresponding effect on the accuracy of the Services provided by the Consultant and/or the Services as a whole;
        4. The Consultant provides no guarantee as to any particular outcome of the Services under this Agreement; 
        5. all reliance on the Services and any information or advice provided by the Consultant in connection with Services is at the Client’s own risk;
        6. it is responsible for their own business decisions and must make their own independent assessment of the risk, benefits and suitability of any act, action undertaking, venture or transaction contemplated by or in connection with the Services and any information or advice provided in connection with the Services by the Consultant.
      3. Represents and warrants that the Client:
        1. owns or has been appropriately licensed all Intellectual Property in the information and/or documentation it provides to the Consultant;
        2. is able to provide the Consultant the information and/or documentation for use in connection with the Services;
        3. use of the information and/or documentation by the Consultant will not infringe the rights of any third party and/or that all required consents and approvals have been obtained to permit the performance of the Services.

  10. Intellectual Property
    1. The Client acknowledges that any Intellectual Property owned or licensed by the Consultant which the Consultant uses to perform the Services (including any software, methodologies or systems) remains vested in the Consultant.
    2. All right, title and interest in any new Intellectual Property Rights created as a result of the provision of any or all of the Services (New Intellectual Property) shall vest in the Consultant. If ownership does not automatically vest by operation of this clause, the Client agrees to assign all right, title and interest in the New Intellectual Property to the Consultant.
    3. The Consultant agrees that all Intellectual Property Rights in and to the information and/or documentation provided by the Client remains with the Client and the Client grants to the Consultant a royalty free, non exclusive licence to use such Intellectual Property for the purpose of carrying out the Services.

  11. Confidential Information
    1. Consultant's obligations
      1. Subject to clause 11.1(b) each party may not use each other’s Confidential Information for any purpose other than exercising their rights or fulfilling their obligations under this Agreement and must keep all of each other’s Confidential Information confidential and not directly or indirectly divulge or communicate or otherwise disclose any Confidential Information in whole or in part to any third party unless it has received written consent to do so from the party whose Confidential Information it is unless required to do so by law; 
      2. the Consultant may only disclose the Client’s Confidential Information to other persons including but not limited to subcontractors who have agreed in writing to comply with substantially the same obligations in respect to the Client’s Confidential Information of those imposed on the Consultant under this Agreement.  
    2. Continued application
      The rights and obligations set out in this clause 11 continue to apply during the Term and for a period of seven years after the termination of this Agreement.

  12. Insurance
    The Consultant will obtain such insurance and on such terms as it determines is reasonably necessary for undertaking the Services.

  13. Liability and Indemnity
    1. Except as otherwise expressly stated in this Agreement and to the maximum extent permitted by law, the Consultant gives no warranties or guarantees, whether express or implied, in connection with its performance of the Services or the use of the Services by the Client.
    2. To the maximum extent permitted by law: 
      1. The Consultant shall not be liable for any claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits) made, suffered or incurred by the Client in connection with any delays in commencing or completing the Services for any reason or for any breach of the Consultant’s obligations under this Agreement; 
      2. The Consultant shall not be liable to the Client:
        1. for any statements, representations, guarantees, conditions or warranties not expressly contained in this Agreement or any reliance by the Client on any outcomes arising from the provision of the Services;
        2. as a result of any information and/or documentation provided being incorrect, inaccurate, inadequate or incomplete; or
        3. otherwise in connection with the undertaking of the Services;
      3. The Consultant shall not be liable to the Client or any other person or third party in respect of any consequential or other loss or damage (including loss of profit, loss of income, loss of production, loss of actual or potential business opportunity or loss of reputation or any penalty that may be imposed on the Client) arising directly or indirectly from the performance or non-performance of the Services, their use or misuse  , or provision of the Services under this Agreement.
    3. To the maximum extent permitted by law, if and to the extent that the liability of the Consultant to the Client is not or cannot be excluded, the liability of the Consultant is limited (at the Consultant’s option) to the resupply of the Services at no additional cost to the Client or alternatively to refunding the Service Fees relating to the applicable part of the Services.
    4. The Client shall indemnify and hold harmless the Consultant from and against:
      1. all claims, damages, costs (including without limitation legal costs), losses, liabilities and expenses suffered or incurred by the Client arising out of any act or omission of the Client, or any assumption of any obligation or responsibility by the Client under this Agreement; 
      2. any and all claims of whatsoever nature made or brought against the Consultant arising from any breach of this Agreement by the Client and/or out of any act or omission of the Client in the performance of its obligations under this Agreement.
    5. The Client agrees to indemnify the Consultant in respect of any losses, damages, liabilities or costs (including without limitation legal costs) suffered or incurred by the Consultant arising out of any breach of this Agreement by the Client or any negligence of the Client or the Client’s employees, officers or agents. 

  14. Default & Termination
    1. The Consultant may immediately terminate this Agreement by written notice to the Client if, in the Consultant’s reasonable opinion, the ability of the Consultant to provide any of the Services or the costs of providing any of the Services are materially affected by:
      1. any change in the status, structure or characteristics of the Client;
      2. any new or amended law, regulation, rule or other binding obligation or restriction; or
      3. the Client being unable to pay its debts as and when they fall due or any application being made for the Client to be wound up.
    2. The termination of this Agreement does not prejudice any rights or remedies that have accrued under, or in respect of, this Agreement prior to its termination. 
    3. In the event of the Client being in default of this Agreement for a failure on the part of the Client to observe the obligations set out in this Agreement, the Client will become liable to reimburse the Consultant for Service Fees that would have been received by the Consultant throughout the duration of this Agreement, based upon the Service Fee applicable at the time of the breach, had the Client not been in default of that clause.
    4. Upon termination of this Agreement all monies then owing to the Consultant by the Client on any account whatsoever will become immediately due payable and must be paid in cash, EFT or by bank cheque to the Consultant and any amounts already paid by the Client to the Consultant are non-refundable.
    5. Interest will be charged to the Client on any payments required to be made pursuant to this Agreement which are late at the rate of 10%. 

  15. GST
    1. Unless specifically stated in this Agreement and but for this clause 15, all amounts expressed or described in this Agreement are GST exclusive amounts.
    2. If any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time, GST) is payable by any party (Supplier) in respect of the supply of any goods, services or any other thing to another party (Recipient) then the amount expressed or described in this Agreement (Original Amount) is to be increased so that the Supplier receives an amount (Increased Amount) which, after subtracting the GST liability of the Supplier on that Increased Amount, results in the Supplier retaining the Original Amount after payment of the GST liability. 
    3. The Supplier will do all things reasonably available to it to assist the Recipient to claim on a timely basis any input tax credits (if any) the Recipient may be entitled to claim for an acquisition of good and/or services or any other thing from the Supplier. This includes the Supplier maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under this Agreement on a timely basis as reasonably requested by the Recipient. 

  16. Dispute Resolution
    1. If a dispute arises in relation to this Agreement then the Parties must not commence any court proceedings (except proceedings seeking interlocutory relief) in respect of the dispute unless it has first complied with clause 16.2.
    2. The Parties must mediate any dispute (Dispute) by using the following mediation procedure:
      1. either Party may start the procedure by serving a notice on the other Party (Notice)
      2. the Notice must:
        1. be in writing;
        2. identify the subject matter of the Dispute;
        3. set out in detail the facts upon which the Dispute is based;
        4. identify the provisions of this Agreement that are relevant to the Dispute;
        5. have annexed to it copies of all correspondence and background information relevant to the Dispute;
        6. contain particulars of the qualification of any amount claimed in relation to the Dispute;
      3. within ten (10) Business Days after the service of the Notice, the Parties must meet to discuss the Dispute in good faith (Meeting);  
      4. if the Dispute is not resolved before or at the Meeting, the Parties must appoint a mediator within ten (10) Business Days after the Meeting. If they fail to agree, the President of the Law Society of South Australia must appoint a mediator; 
        1. the Parties must follow the mediator’s instructions about the conduct of the mediation;
        2. if the Dispute is not settled within 20 Business Days after the mediator is appointed, the mediation ends.
      5. Each Party must pay an equal share of the costs of the mediation to the mediator.
      6. If the Dispute is settled, each Party must sign the settlement terms (Settlement Terms). The Settlement Terms are binding on the Parties and override the terms of this Agreement if there is any inconsistency between the two.

  17. Notices
    1. A notice or communication under this Agreement (Notice) must be in writing, in English and signed by a person duly authorised by the sender and hand delivered or sent by prepaid post to the recipient's address for Notices specified in the Details or Item 1 of the Annexure (as applicable), as varied by any Notice given by the recipient to the sender.
    2. A Notice given in accordance with clause 17.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received if hand delivered, on delivery or if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.

  18. General
    1. No right, power, authority, discretion or remedy arising under this Agreement is waived unless the waiver is in writing and signed by the party granting the waiverAny written waiver is without prejudice to the other party's obligation to comply with all other provisions of this Agreement.
    2. This Agreement may not be varied except by express written agreement made between both Parties.
    3. This Agreement and the attached Letter of Engagement constitutes the entire agreement between the Parties and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements, express or implied, between the Parties or their respective officers, employees or agents. To the extent of any inconsistency between the terms of this Agreement and the attached Letter of Engagement, this Agreement shall prevail.
    4. Each Party agrees to do all such acts and things and execute all such document as may be necessary or desirable to give full effect to the terms of this Agreement.
    5. This Agreement will in all respects be governed by, and interpreted in accordance with, the laws of the State of South Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of South Australia and waives any claim or objection based on absence of jurisdiction or inconvenient forum.
    6. If any provision of this Agreement is void, voidable, invalid or unenforceable by operation of any law, then the offending part of this Agreement shall, as far as it is possible be read down to the extent necessary to make it not invalid, unenforceable or illegal but if it cannot be so read down then it is to be deemed severed from this Agreement without affecting the validity or enforceability of the other provisions of this Agreement.
    7. Each Party shall pay its own costs associated with the negotiation, preparation and execution of this Agreement and unless otherwise provided in this Agreement, pay its owns costs in respect of any action to be taken by the Party in performing its obligations under this Agreement.
    8. A Party in breach of the provisions of this Agreement shall pay all costs and expenses, including legal costs (on a solicitor/Client basis), incurred by the other Party not in default in enforcing or attempting to enforce the provisions of this Agreement or having or attempting to have the Party remedy any breach of this Agreement.
    9. Neither Party is liable to the other for delay or failure to fulfil obligations (other than an obligation to pay) to the extent that the delay or failure arises due to an unforeseen event beyond their reasonable control which is not otherwise dealt with in this Agreement. Each Party agrees to use reasonable endeavours to remove or overcome the effects of the relevant event without delay.
    10. This Agreement may be executed in counterparts and all counterparts taken together constitute one document.

 

By signing the provided quote, you confirm that you have read and understood the SynergyIQ Service Agreement, and agree to its terms and conditions.