ADVISORY SERVICES AGREEMENT
THIS AGREEMENT dated ‘the date you sign up to the services’ is made by and between:
YOU (“End User”)
MyMalekso Pty Ltd ACN 642 090 293 including its Agents (Advisors listed on the MyMalekso Pty Ltd website) (“Advisor”)
A. YOU (“End User”) wishes to receive Advisory Services as set out in Specification (Advisory Services).
B. The Advisor has the skills, background and experience in providing Business Advisory Services.
C. YOU (“End User”) wishes to engage an independent contractor to provide the Advisory Services to YOU (“End User”).
D. The Advisor is willing to provide the Advisory Services and YOU (“End User”) is willing to appoint the Advisor to provide the Advisory Services, all in accordance with the provisions of this Agreement.
- Definitions and interpretation
In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:
Agent means any Advisor, an independent service provider, who provides their Advisory services via the MyMalekso Pty Ltd platform.
Advisor means a person providing services to help You (“End User”) improve your business. Another term for Advisor is Consultant.
Advisor’s Personnel means any person(s) that the Advisor designates toperform the Services on the Advisor’s behalf;
Claims means all demands, claims, proceedings, penalties, fines and liability (whethercriminal or civil, in contract, tort or otherwise);
Commencement Date means ‘the date you sign up to the services’;
Completion Date means any date the Parties agree to terminate the agreement on or such other date as the Parties may agree;
Confidential Information includes any information marked as confidential and anyinformation received or developed by the Advisor during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by YOU (“End User”) in the course of YOUR (“End User’s”) business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
Facilities means facilities as required by the Advisor from time to time in performing
the Advisory Services, in accordance with clause 6 of this Agreement;
Fee(s) means any fee’s related to the provision of this service;
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act1999 (Cth);
Intellectual Property includes all patents, trademarks, registered designs, copyrights, inventions, discoveries, methods, ideas, hardware, firmware or software, know-how, techniques, other technology or other like rights or any right to apply for registration of any of the former;
Losses means all losses including financial losses, damages, legal costs and otherexpenses of any nature whatsoever;
Parties means the Advisor and YOU (“End User”), and Party shall mean either oneof them;
Purpose means helping YOU (“End User”) make business improvements;
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001(Cth);
Specification means the specific Advisory Services to be provided by theAdvisor under this Agreement. The Specification is set out in Schedule 1 of this Agreement;
Termination Date means the earlier of:
- the date of termination of this Agreement by YOU (“End User”) or the Advisor; and
- the date of expiry of this Agreement.
- 2. Interpretation
In this Agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
- reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
- any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
- any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made
under that enactment; and
- the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
- Advisory services
- The Advisor shall provide the Advisory Services for the Purpose and as the Parties may agree from time to time to YOU (“End User”) in consideration for YOU (“End User”) paying the Fee to the Advisor, subject to the provisions of this Agreement.
- The Advisor and YOU (“End User”) shall agree the time and place for the performance of the Advisory Services subject to the availability of the Advisor’s staff and agents.
- The Advisor shall use reasonable endeavours to complete the Advisory Services by the Completion Date or any other dates agreed by the Parties.
- The Advisory Services shall be performed by such employees or agents that the Advisor may choose as most appropriate to carry out the Advisory Services as agreed, from time to time by the Parties.
- The Advisory Services to be performed as agreed by the Parties, and the Fee(s) shall be set out in the Specification.
The Advisor shall provide the Advisory Services in such places and locations as set out in the Specification.
- In consideration of the provision of the Advisory Services in accordance with this Agreement, YOU (“End User”) will pay the Advisor any Fee(s) that are beyond the monthly subscription fee charged through and by the platform and that you and your Advisor agree upon.
- YOU (“End User”) acknowledges that the Fee(s) shall be exclusive of any GST that may be charged by the Advisor to YOU (“End User”), and therefore, the Advisor will be entitled to add on GST.
- The Advisor shall provide YOU (“End User”) with a tax invoice in accordance with the GST Law in relation to fees apart from the payable monthly subscription fee charged through and by the platform under this clause 4, and payment shall be made by YOU (“End User”) to the Advisor within 7 days following receipt of the Advisor’s invoice.
- The invoice referred to in paragraph (c) must include the following details before payment can be approved and forwarded:
- date of Advisory Services;
- name of service provider provided by the Advisor;
- description of Advisory Services provided;
- time allocated per task; and
- the ABN of the Advisor.
- (e) The Advisor shall be entitled to vary their consulting rates during the term of this Agreement. Before implementing any such new rates, the Advisor shall provide them to YOU (“End User”).
- If YOU (“End User”) does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Advisor shall be entitled to do any of the following:
- charge interest on the outstanding amount at the rate of 5% per year, accruing daily;
- require YOU (“End User”) to pay, in advance, for any Advisory Services (or any part of the Advisory Services) which have not yet been performed; and
- not perform any further Advisory Services (or any part of the Advisory Services).
- When making a payment YOU (“End User”) shall quote relevant reference numbers and the invoice number.
- Advisor’s Personnel
- YOU (“End User”) may, at any time, if it has reasonable grounds which have been disclosed and discussed with the Advisor, by notice in writing to the Advisor, require the Advisor to cease to permit a particular person or persons employed by the Advisor or acting as agents of the Advisor to carry out the Advisory Services.
- If YOU (“End User”) makes the requirement referred to in paragraph (a), the Advisor must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of YOU (“End User”)’s business and provide the services of an alternative person or persons as may be reasonably acceptable to YOU (“End User”).
- YOU (“End User”)’s obligations
- During the preparation of the Specification and performance of the Advisory Services YOU (“End User”) will:
- co-operate with the Advisor as the Advisor reasonably requires;
- provide the information and documentation that the Advisor reasonably requires;
- make available to the Advisor such Facilities as the Advisor reasonably requires; and
- ensure that YOU (“End User”)’s staff and agents co-operate with and assist the Advisor.
- YOU (“End User”) will not charge for the Advisor’s use of the Facilities made available by YOU (“End User”).
- If YOU (“End User”) does not provide the Facilities that the Advisor
reasonably requires (and within the time period) to perform the Advisory Services, then any additional costs and expenses which are reasonably incurred by the Advisor will be paid by YOU (“End User”).
- No partnership or employment relationship
Nothing in this Agreement constitutes the relationship of employer and employee between YOU (“End User”) and the Advisor or between YOU (“End User”) and the Advisor’s Personnel. It is the express intention of the parties that any such relationships are denied.
- Use of subcontractors
- The Advisor is permitted to use other persons to provide some or all of the Advisory Services.
- The Advisor shall be responsible for the work of any of the Advisor’s subcontractors.
- Subject to paragraph (d), any work undertaken by any of the Advisor’s subcontractors shall be undertaken to the same standard stated as agreed by the Parties.
- To the extent that the terms of any subcontract stipulate a higher standard for any of the Advisory Services than the standards set out in this Agreement (including as to timing or quality), any Advisory Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
- Disclosure and ownership of intellectual property
- The Advisor must communicate to YOU (“End User”) promptly and fully all discoveries, improvements and inventions made or conceived by the Advisor or the Advisor’s Personnel (either solely or jointly with others) in the course of performing the Advisory Services which are similar to the actual or anticipated business, work or investigations of YOU (“End User”) or which result from or are suggested by any work performed for YOU (“End User”) (Inventions).
- Any Inventions, whether or not they contain intellectual property rights capable of protection, shall be and remain the sole and exclusive property of YOU (“End User”) or its nominees.
- The Advisor acknowledges that YOU (“End User”) (or its associated entities or persons) owns all Intellectual Property created by the Advisor in connection with the Advisory Services, that now exists or that later comes into existence.
- The Advisor agrees to indemnify YOU (“End User”) fully against all liabilities, costs and expenses which YOU (“End User”) may incur as a result of any breach of this clause by the Advisor or the Advisor’s Personnel.
- The obligations accepted by the Advisor under this clause survive termination or expiry of this Agreement.
- The Advisor must keep YOU (“End User”)’s, and any Related Body Corporate of YOU (“End User”)’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
- YOU (“End User”) and the Advisor acknowledge that information resulting from the activities of the Advisor pursuant to this Agreement shall also be regarded as Confidential Information and the Advisor agrees that the Advisor’s obligations in paragraph (a) extend to this category of information.
- The Advisor’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
- YOU (“End User”), in the case of Confidential Information pertaining to YOU (“End User”)’s business; and
- YOU (“End User”)’s client, in the case of Confidential Information pertaining to the business of any of YOU (“End User”)’s clients.
- At the Termination Date, or when earlier directed by YOU (“End User”):
- all Confidential Information must be returned to YOU (“End User”), including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Advisor makes and any software that the Advisor creates based on the Confidential Information; and
- the Advisor must erase and destroy any copies of any software containing or comprising the Confidential Information in the Advisor’s possession or under the Advisor’s control or that may have been loaded onto a computer possessed or controlled by the Advisor.
- The Confidential Information does not include information which:
- is generally available in the public domain otherwise than as a result of a breach of paragraph (a) by the Advisor; or
- was known by the Advisor prior to YOU (“End User”) disclosing the information to the Advisor; or
- is contained within the MyMalekso Pty Ltd advisory platform or any other white labelled version of the advisory platform.
- The Advisor agrees that YOU (“End User”) may require any of the Advisor’s Personnel to sign a confidentiality agreement in a form that YOU (“End User”) approves, as a condition of YOU (“End User”)’s acceptance of any of the Advisor’s Personnel.
- The Advisor agrees to indemnify YOU (“End User”) fully against all liabilities, costs and expenses which YOU (“End User”) may incur as a result of any breach of this clause by the Advisor.
- The Advisor acknowledges that damages may be an inadequate remedy for breach of this clause and that YOU (“End User”) may obtain injunctive relief against the Advisor for any breach of this clause.
- The obligations accepted by the Advisor under this clause survive termination
or expiry of this Agreement.
- Warranties, liability and indemnities
- The Advisor warrants that it will use reasonable care and skill in performing the Advisory Services and to the standard generally accepted within the industry, sector or profession in which the Advisor operates for the type of Advisory Services provided by the Advisor.
- If the Advisor performs the Advisory Services (or any part of the Advisory Services) negligently or materially in breach of this Agreement including any part of the Specification, then, if requested by YOU (“End User”), the Advisor will re-perform the relevant part of the Advisory Services, subject to paragraphs (h) and (i) below.
- YOU (“End User”)’s request referred to in paragraph (b) must be made within 7 days of the date the Advisor completed performing the Advisory Services.
- The Advisor shall effect all insurance required to be effected by law including worker’s compensation insurance as prescribed by law for the Advisor’s Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.
- The Advisor covenants that the Advisor shall be solely responsible for the payment to the Advisor’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Advisor’s employees or agents and to otherwise comply with legislation applicable to the Advisor’s employees and agents.
- Throughout the continuance of this Agreement the Advisor shall comply at the Advisor’s own cost and expense with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority so far as the same may affect or apply to the Advisor or to the Advisory Services, and the Advisor shall indemnify YOU (“End User”) from and against all actions, costs, charges, claims and demands in respect thereof.
- The Advisor provides no warranty that any result or objective can or will be achieved or attained at all or by the Completion Date or any other date, whether stated in this Agreement or elsewhere.
- Except in the case of death or personal injury caused by the Advisor’s negligence, the liability of the Advisor under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by YOU (“End User”) to the Advisor under this Agreement. The provisions of this paragraph (h) shall not apply to paragraphs (f) and (j).
- Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or
consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this paragraph (i) shall not apply to paragraphs (f) and (j).
- YOU (“End User”) shall indemnify and hold harmless the Advisor from and against all Claims and Losses arising from loss, damage, liability, injury to the Advisor, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to YOU (“End User”) by the Advisor, its employees or Advisors, or supplied to the Advisor by YOU (“End User”) within or without the scope of this Agreement.
- Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
- The Advisor must supply YOU (“End User”) with evidence of the Advisor’s ABN and must include this number on any statement provided to YOU (“End User”). The Advisor acknowledges that if the Advisor fails to provide an ABN, then YOU (“End User”) is entitled to withhold any proportion of the payments to the Advisor as may be required under the relevant law for tax purposes.
- The Advisor warrants that the Advisor has no authority to engage the services of any person as an employee or agent of YOU (“End User”).
- The Advisor warrants that the Advisor shall not incur any liability on behalf of YOU (“End User”) or in any way pledge or purport to pledge YOU (“End User”)’s credit or accept any other or make any contract binding upon YOU (“End User”) without prior approval being given by YOU (“End User”).
- The obligations accepted by the Advisor and YOU (“End User”) under this clause survive termination or expiry of this Agreement.
- The MyMalekso Pty Ltd advisory platform and all its white labelled advisory platform versions are enablers of the engagement by providing a platform to work off of, and are not responsible for any advice, guidance, direction, instruction or recommendation provided by the Advisor and accepted or enacted by YOU (“End User”).
- Either Party may terminate this Agreement by notice in writing to the other if the other Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 1 month notice of the breach being given in writing by the notifying Party to the other Party.
- Either Party may terminate this Agreement upon the happening of any of the following events:
- the giving of written notice of at least 1 week by one Party to the other Party of the intention to terminate this Agreement;
- if YOU (“End User”) enters into a deed of arrangement or an order is made for it to be wound up;
- (iii) if an administrator, receiver or receiver/manager or a liquidator is appointed to YOU (“End User”) pursuant to the Corporations Act 2001 (Cth); or
- if YOU (“End User”) would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
- YOU (“End User”) may, at its discretion, pay to the Advisor the equivalent amount of the fees payable by YOU (“End User”) to the Advisor during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph (a)(i).
- Upon termination of this Agreement any fees, expenses or reimbursements payable by YOU (“End User”) to the Advisor in respect of any period prior to the Termination Date must be paid by YOU (“End User”) within 7 days after the Termination Date.
13.1. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
- Subject to paragraph (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
- A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
13.4. Entire agreement
- This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
- The Parties confirm that they have not entered into this Agreement on the basis
of any representation that is not expressly incorporated into this Agreement.
- No failure or delay by the Advisor in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
13.6. Agency, partnership etc
- This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
- Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
13.7. Further assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
- Subject to paragraph (b), no Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.
- No Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the
notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.
13.11. Work, health and safety
YOU (“End User”) is committed to providing a healthy, safe and clean workplace for its employees, contractors and visitors. YOU (“End User”)’s goal is to foster and sustain a positive safety culture. YOU (“End User”)’s commitment is implemented through its work health and safety (WHS) policy and underpinned by a set of WHS and operational procedures throughout YOU (“End User”). The Advisor is required to comply with all relevant work, health, safety and welfare standards and regulations determined by YOU (“End User”) or as prescribed by legislation.
13.12. Law and jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.
Executed as an Agreement on ……
Executed by YOU (“End User”) upon ticking the agreement checkbox on the mymalekso.com.au website
Executed by MyMalekso Pty Ltd ACN 642 090 293 including its Agents (Advisors listed on the MyMalekso Pty Ltd website), in accordance with section 127 of the Corporations Act 2001:
SCHEDULE 1 SPECIFICATIONS
- Advisory Services