1. Engagement of Services. Client hereby engages and retains Contractor to provide certain services, and Contractor agrees to render such services to Client, from time to time as mutually agreed to by Client and Contractor (the “Services”) and that are described in one or more statements of work (“SOWs”) which include specific Deliverables, Descriptions, Timelines, and Fees.

 

2. Compensation. Client will pay Contractor the fees set forth in the SOW in consideration for rendering the Services pursuant to this Agreement and such SOW. In addition, Contractor reserves the right to pass through applicable processing fees when Client provides payment of invoices with a credit card. Client agrees to pay invoices within 14 days of receiving the invoice. Payment after that date will incur a late fee of 5.0% per month on the outstanding amount. Contractor will be reimbursed for expenses that relate to the Services and that are approved by Client in advance. Upon termination of this Agreement for any reason, Client will pay Contractor any unpaid fees for Services that have been completed prior to such termination. Generation of invoices will be at the discretion of the Contractor and aligned to the nature of the work provided. All invoices for project based work with an agreed fixed price are subject to a payment plan aligned with the work commencement (50% payment required), and work completion (remainder of fixed price + any agreed costs). For work completed on an hourly rate agreement, payment for the minimum estimated time to completion must be paid prior to work commencement and subsequent monthly invoices will follow. Notification will be made if the Contractor is approaching the minimum estimated time for mutual agreement of continuation of services. At the discretion of the Contractor, invoices for hourly rate agreements may be subject to pre-payment.

 

3. Ownership of Work Product. Except for automations developed by the Contractor, Client is and will be the owner of all interests in the product of all work performed under this Agreement (the “Work Product”). Contractor hereby irrevocably sells, transfers, and assigns to Client all right, title, and interest that Contractor has or will have in and to the Work Product, excluding automations. For automations, Contractor retains all rights, title, and interest. Contractor acknowledges that, except for automations, Client owns and will own all such existing and future right, title, and interest in and to the Work Product. Notwithstanding the foregoing, Contractor shall be entitled to display Work Product in their portfolio, on their website, or for any other business marketing purposes, provided that any display of automations shall be subject to the prior written consent of the Client.

 

4. Intellectual Property. Neither the Client nor Contractor shall acquire any right, title or interest in any intellectual property owned, licensed or controlled by the other party as of the Effective Date.

 

5. Confidential Information. Contractor shall not disclose any of the Client’s confidential information to anyone other than its affiliates, employees, contractors or authorised representatives who have a need to know the information in connection with Contractor’s rendering of the Services. Contractor shall exercise the same degree of care to prevent disclosure of any Confidential Information as it takes to preserve and safeguard its own confidential information but, in any event, no less than a reasonable degree of care.

 

6. Independent Contractor Relationship. Contractor’s relationship with Client is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. No part of Contractor’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Client will regularly report amounts paid to Contractor by filing Form 1099 with the Internal Revenue Service as required by law. CONTRACTOR IS ACTING AS AN INDEPENDENT CONTRACTOR TO CLIENT; CONTRACTOR IS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, WORKERS’ COMPENSATION BENEFITS, PENSION, BONUS OR OTHER FRINGE BENEFITS FROM CLIENT. CONTRACTOR WILL PAY ALL NATIONAL, FEDERAL AND STATE INCOME TAX, SOCIAL SECURITY TAX AND OTHER AMOUNTS DUE UNDER APPLICABLE PAYROLL AND SIMILAR LAWS WITH RESPECT TO ALL AMOUNTS PAID IN CONNECTION WITH THIS AGREEMENT.

 

7. Subcontracting and Delegation of Duties: The Contractor reserves the right to delegate or subcontract any of the services to be provided under this Agreement to third-party subcontractors at the Contractor's sole discretion. Any subcontractors engaged by the Contractor for the purpose of fulfilling any of the Contractor's obligations under this Agreement shall be bound by the terms and conditions of this Agreement, including, but not limited to, provisions relating to confidentiality, intellectual property, and ownership of work product. The Contractor shall remain responsible for the performance of its subcontractors and for ensuring their compliance with the terms of this Agreement.

 

8. Use of Tools and Systems: The Contractor retains the discretion to select and utilize the tools, systems, and methods deemed appropriate to effectively perform the duties and services assigned under this Agreement. Unless explicitly agreed upon in writing in advance, any costs or expenses associated with the acquisition or use of such tools, systems, or services shall be borne solely by the Contractor. The Client shall not be responsible for any such costs unless explicitly agreed to in writing prior to their incursion.

 

9. Term. The term of this Agreement will commence on the Effective Date and will continue until terminated by either party as provided herein. The Services shall commence as set forth in the SOW and will continue as provided therein or until terminated pursuant to the terms of such SOW or this Agreement.

 

10. Termination. Either party may terminate this Agreement at any time by giving 30 days prior written notice to the other party. Either party may terminate this Agreement immediately upon a material violation of this Agreement by the other party.

 

11. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOW IN EXCESS OF THE TOTAL FEES PAID TO CONTRACTOR UNDER THE SOW GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

12. Governing Law. This Agreement will be governed in all respects by the laws of Australia as well as the laws of Tasmania, excluding conflicts of law principles.

 

13. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby.

 

14. Waiver. The waiver by either party of a breach of any provision of this Agreement by the other party will not operate or be construed as a waiver of any other or subsequent breach by such party.

 

15. Assignment. Neither party shall assign or transfer this Agreement, or any rights or portion thereof, to any related or unrelated third party without the other party’s consent.

 

16. Defective performance. The Contractor guarantees that if there is a defect in the performance of the Services the Contractor will remedy the defect or redo the Services at no additional cost to the Client. Where the Contractor refuses or fails to remedy a defect in performance of the Services or redo the Services within an agreed timeframe, the Contractor agrees that the Client may arrange for the performance of the necessary remedial work and recover any costs from the Contractor.

 

17. Entire Agreement. This Agreement and all outstanding SOWs constitute the entire agreement between the parties relating to this subject matter and supersede all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement and all outstanding SOWs will govern all Services undertaken by Contractor for Client. This Agreement and any SOW may only be changed by mutual agreement of authorised representatives of the parties in writing.