Paradigm Commuications Pty Ltd Terms and Conditions
1. Scope of agreement & services
1.1 This document sets out the terms (“Terms”) on which Paradigm Communications Pty Ltd trading as Behind The Scenes and We Are Content (PC) will provide a range of professional consulting services (“Services”), as described in a document which addresses specific service activities and the associated commercial terms (“Service Proposal”) to the you the recipient of Services (the “Client”). Together the Terms and Service Proposal form the agreement between you and PC (the “Agreement”).
1.2 The proposal sets out the specific items to be delivered by PC under this Agreement, (the “Deliverables”)
2.1 The Term commences on the Start Date, and continues thereafter:
(a) until the Initial Term End Date as defined in the Service Proposal (or ongoing if not defined) and all fees described in the Service Proposal have been paid; or
(b) should the parties agree to continue post the Initial Term End Date then Services shall continue on a rolling monthly basis on the same terms until the completion of the supply of the Services to the Client by PC and all fees described in the Service Proposal have been paid; or
(c) until terminated by either party in accordance with clause 8; or
(d) unless otherwise agreed by the parties.
3. Client Obligations & Relationship
3.1 During the Term, the Client will make available to PC adequate information and facilities necessary to perform the Services.
3.2 The Client shall, at all times. remain responsible for its decisions and activities. PC shall provide professional advice, facilitation, and guidance however the Client remains responsible for decisions and strategy of its organization based on the professional advice, facilitation, and guidance of PC. PC does not make any guarantees related to the strategies developed through this Agreement but shall use its best endeavours to ensure that the strategies developed are the best for the Client based on the information supplied by the Client.
3.3 PC does not make any guarantees that the advice provided shall deliver specific outcomes.
3.4 PC is engaged as an independent contractor. No party is an agent, representative or partner of any other party by virtue of this agreement. A party must not represent itself as an agent, representative or partner of the other party in any circumstances, except to the extent expressly set out in this agreement. No party has the right to direct or control the activities or management of the other party.
3.5 No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this agreement or by express written agreement between the parties.
3.6 Services do not include accounting, tax, or legal advice or services. The Client shall pay all reasonable fees relating to engaging professional consultants including but not limited to lawyers, accountants, brokers and tax advisers. PC shall not engage any of the services noted in this clause without the prior approval of the Client.
3.7 The Client will to the best of its knowledge and belief:
(a) provide PC with all information, instructions, and access to third parties PC reasonably requires to perform the services
(b) ensure that information provided to PC is accurate, complete, and not misleading (information will be relied on by PC to perform the services and PC will not verify it in any way, except to the extent expressly agreed to do so as part of the Services)
(c) alert PC to changes to information provided to it
(d) ensure PC is permitted to use any third-party information or intellectual property rights the Client requires PC to use to perform the services provided that PC will at all time abide by the terms of the licence given to them by the Client or the third party.
4. Fees and payment
4.1 During the Term the Client will pay PC in respect of the supply of the Services and deliverables, in accordance with the rates and terms set out in this Agreement.
4.2 The Client will pay PC the Fees within 5 working days of the Client’s receipt of a valid tax invoice from PC. Any unpaid amounts after the due date will be subject to interest at the RBA cash rate plus 3%.
4.3 If any taxes, charges, duties, levies or fees (“Taxes”) are required by law or regulation to be withheld from any payment for any good or service provided by PC under this agreement, the Client will deduct those Taxes from the amount payable and remit them to the relevant taxing authority. The Client will provide to PC details of any Taxes so remitted in accordance with the relevant taxation law.
4.4 Should the Client fail to pay any unpaid amounts within 60 days of the date of invoice then PC has the option to engage third parties to collect any outstanding amounts. In this event the Client shall pay for all costs incurred by PC in the recovery of any monies owed under this Agreement including recovery agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis.
5.1 In this clause, the expressions consideration, GST, input tax credit, recipient, supplier, supply, and tax invoice have the same meaning given by the GST Law.
5.2 GST Law has the same meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.
5.3 Unless expressly stated otherwise in the proposal all amounts and payments set out in this agreement are exclusive of GST.
5.4 If GST is payable on any supply made under this agreement by a party (“Supplier”) to another party (“Recipient”) the Recipient must, subject to clause 5.5, pay to the Supplier, in addition to and at the same time as the consideration is payable or to be provided for the supply, an additional amount calculated by multiplying the value of that consideration by the prevailing GST rate.
5.5 PC must issue a valid tax invoice to the Recipient before any payment for a supply made by PC under this agreement is due.
5.6 Any reference to a cost or expense in this agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party is entitled to an input tax credit.
6.1 Confidential Information means all information of a confidential nature in any form whether tangible or visible, communicated by one party to the other, or accessed by, or to which the other is exposed as a result of entering into this agreement, including any information relating to the financial affairs, assets or liability of a party, or any information relating to the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or services.
6.2 Confidential Information does not include information or material which:
(a) is already in the public domain, or enters the public domain other than due to a breach of this agreement;
(b) can be proven to be already known by the receiving party other than through any disclosure under this Agreement; or
(c) is obtained from a source other than the disclosing party or any of its Related Bodies Corporate (as that term is defined in the Corporations Act 2001) or authorised representatives, where that source is entitled to disclose it without an obligation of confidence.
6.3 A recipient of Confidential Information may only use or reproduce the Confidential Information of the discloser strictly for the purposes of performing the recipient’s obligations or exercising the recipient’s rights under this agreement.
6.4 A recipient must:
(a) not disclose the Confidential Information of the other to any person, except employees of the recipient or other parties requiring access to the information for the purposes expressly permitted by this Agreement;
(b) not make, assist or permit any person (including its representatives) to make any unauthorised use, disclosure or reproduction of the discloser’s Confidential Information;
(c) take reasonable steps to safeguard the Confidential Information, including co-operating with the other in any action which it may take to protect the confidentiality of its Confidential Information.
6.5 A disclosure may only be made provided that the person to whom the Confidential Information is disclosed is specifically made aware of the confidential nature of the information.
6.6 The obligations contained in this clause survive expiration or termination of this agreement for any reason.
7. Liability and indemnity
7.1 Each Party indemnifies and agrees to keep indemnified the other party from and against all losses, damages, liability, costs and expenses (including legal costs on a party /party basis) (“Damages”) sustained or incurred by those indemnified, arising out of or in connection with
(a) wilful, unlawful or fraudulent acts or omissions on the part of a Party or any of its or their personnel in the performance of this agreement;
(b) breach by a Party of the confidentiality obligations under this agreement; and
(c) infringement or allegation of infringement of a third party’s IPR by the Deliverables (including the use of the Deliverables by the Client or any of its Related Bodies Corporate (as that term is used in the Corporations Act 2001) or by PC or any of their Related Bodies Corporate, personnel or contractors, including in the course of their or its performance of the services to be provided by PC pursuant to this agreement
provided that the indemnity obligation of a Party under this agreement shall be reduced to the extent that the indemnified or to be indemnified party has caused or contributed to the Damages and/or not used its or their best endeavours to mitigate the Damages.
7.2 To the extent permitted by law, the liability of a party under or in connection with this agreement (excluding liability under or in connection with an indemnity or in connection with the personal injury or death to any person or damage to, or loss of any tangible property when any of the foregoing exclusions are caused or contributed to by PC or any of its personnel) whether in contract, tort (including negligence), under statute or otherwise, in the aggregate, will be limited to the total of the fees paid to PC.
8.1 The Client or PC may terminate this agreement, effective on or after the Initial Term End Date, at any time without cause or penalty by giving 90 days’ notice in writing. Should the Client terminate under this clause 8.1 then any accrued monthly retainer amounts shall be due and payable.
8.2 All options or rights over equity as described in this document shall be retained by PC on any termination.
8.3 Without limiting any other rights which a party may have at law, a party may terminate this agreement immediately by issuing the other party with a notice, if:
(a) the other party breaches any material term or condition of this agreement or
(b) the other party breaches a non-material term of this agreement and fails to remedy such breach within 30 days of receipt of a written notice from the other party requiring it to do so, or
(c) the other party becomes subject to any form of insolvency administration.
8.4 The termination of this agreement will not prejudice or affect any:
(a) pre-existing liability or any accrued rights of any party; or
(b) provisions of this agreement that continue to apply.
9.1 Any notice or other communication that is required or permitted to be given by one party to the other party under this agreement will be given in writing and may be delivered by hand or sent by mail or email to the address of each party specified in the Agreement Details, or to such other address as a party may advise the other party of from time to time.
10.1 If any part of this agreement is void or unenforceable in any jurisdiction, it is severed for that jurisdiction and the remainder of this agreement will remain in full force and effect.
10.2 A waiver by either party in respect of a breach of a provision of this Agreement by the other party will not be taken to be a waiver in respect of any other breach. The failure to enforce any provision of this agreement will not be interpreted as a waiver of that provision. This Agreement will be governed by and construed in accordance with the laws of the state of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts exercising jurisdiction in that State and the courts of appeal from them.
10.3 This Agreement is in substitution for all previous contracts for services between the parties which shall be deemed to have been terminated by mutual consent as from the date on which this Agreement commences and constitutes the sole and entire agreement between the parties and a warranty, representation, guarantee or other term or condition of any nature not contained or recorded in this Agreement is of no force or effect.