Unless the Client or Service provider enacts an alternative contract, the MyKludo Standard contract forms part of the case agreement on all services provided through the MyKludo platform.
It is agreed
1. The Contract (elsewhere referred to as the Case Agreement)
1.1 The Contract consists of
1.1.1 these terms
1.1.2 the Request for Quote (RFQ)
1.1.3 the Response to Quote (RTQ)
1.1.4 any document, if any, listed in the instructions as forming part of the Contract.
1.2 The order of precedence in the RFQ applies in the case of any inconsistency.
2.Carrying out the Services
2.1 The client engages the Service Provider to provide the Services specified in the RFQ of the Contract on a non-exclusive basis. The Client reserves the right to engage any other partner to provide the Services, as the Client thinks fit in its absolute discretion.
2.2 The Service Provider must:
2.2.1 commence the Services by the Commencement date and if a date for Completion is specified in the RFQ, complete the Services by the date of Completion. If there is no date for Completion specified in the RFQ, the Service Provider must continue providing the Services, until the Contract expires or is terminated by the Client.
2.2.2 meet the relevant Australian standards and properly and diligently execute the Services with the degree of skill, care and competence expected professional person experienced in performing the same or similar services.
2.2.3 supply everything necessary for the proper performance of the Service Providers, obligations and discharge of the Service Providers liabilities.
2.2.4 perform the Services to the Clients reasonable satisfaction and in accordance with the Contract and performance reviews (if Any) and
2.2.5 carry out all directions made by the Client to the Service Provider.
3. Payments by the Client
3.1 In consideration of the provision of the Services, the Client shall pay MyKludo the Service Provider Fees plus a 15% MyKludo Service Fee. The Service Provider Fees and the MyKludo Service Fee are collectively referred to as The Fees. The Fees are payable in accordance with the MyKludo Terms of Service.
4.1 In addition to the Fees payable, the Client will be responsible for any GST that must be paid in respect of the Fees. “GST” means a goods and services tax imposed by the Government under the A New Tax System (Goods and Services Tax)Act 1999 as amended.
4.2 Where the Service Provider is registered for GST, it shall provide a Tax Invoice to MyKludo for Services performed by the Service Provider for the Client. “Tax Invoice” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 as amended.
5. The Client may vary the Services
5.1The Client may, at any time, vary the Services by giving notice in writing to the Service Provider, the Service Provider must comply with all reasonable requests of the Client given in accordance with this clause 5.
5.2 The Service Provider will not be entitled to any additional payments due to variation unless such payments are approved by the Client in writing.
6. Standard of Services
6.1 If at any time the Services or any materials or goods used by the Service Provider in connection with the Services are not in accordance with this Contract, the relevant Australian standard or Performance Reviews, the Client may direct the Service Provider to replace, correct, remove or vary those services at no cost to the Client. Failing compliance with such a direction, the Client may engage another Service Provider to carry out Services, the cost of which will be a debt due from the, from the Service Provider to the Client.
6.2 Alternatively, the Client may accept the defective services, and reduce the amount payable to the Service Provider by the Client’s estimate of the amount of any loss suffered by the Client.
7. Compliance with statutory requirements and the requirements of the Client
The Service Provider:
7.1 must comply, at its own costs, with all statutory requirements, and the requirements of any authority, statutory or otherwise having jurisdiction over the Services, including without limitation all environmental, work health and safety (WHS) and other statutory requirements.
7.2 warrants it has all necessary approvals of any relevant authority or professional body to carry out the Services, including without limitation any required license and
7.3 in carrying out the Services will comply with the Client’s work health and safety requirements.
8.1 If the Client notifies the Service Provider that a particular person is not to be engaged for performing the Services, the Service Provider must immediately replace that person with another suitable member of its personnel acceptable to the Client as soon as practical, so as not to affect the performance of the Service Provider’s obligations under the contract.
9.1 If a date of Completion is specified in the RFQ this clause applies.
9.2 In the contract, Completion means:
9.2.1 The Services are in the Client’s opinion completed in accordance with the Contract and,
9.2.2 the Service Provider has provided to the Client all documents and information regarding the Services reasonably requested by the Client.
9.3. When the Service Provider considers the Services have reached Completion. It must notify the Client. The Client will assess whether the Completion has been achieved and either:
9.3.1 certify the date on which Completion was achieved, or
9.3.2 advised the Service Provider of what further services are required to achieve Completion.
9.4. If the Service Provider does not achieve Completion before on the due date for Completion. The Client is entitled to recover from the Service Provider, as liquidated damages an amount specified in the RFQ or other documents comprising the Case Agreement, for each day after the date of Completion that the Completion of the Services are delayed.
10.1. In this clause 10, Liabilities means all claims, suits, demands, damages, losses, expenses, costs, or other liability and Personnel means everyone, the Service Provider engages in providing the Services, including without limitation, its employees agents consultants and contractors, subject to the liability and indemnity limits of insurance policies as defined in clause 11.1.1, 11.1.2, and 11.1.3.
10.2 The Service Provider is liable for and indemnifies the Client against the following Liabilities arising out of or in connection with the provision of the services:
10.2.1 personal injury to or the death of any person
10.2.2 loss of or damage to any property, including property of the client
10.2.3 a breach of the Contract by the Service Provider or its personnel
10.2.4 a breach of any statutory or common law requirements by the Service Provider or its personnel
10.2.5 the negligence or default of the Service Provider or its personnel or
10.2.6 the termination of the Contract by the Client under clause 13.1
10.3 The indemnity will apply to the extent that such liabilities are incurred as a result of the negligent act, omission, or default of the Service Provider.
11.1 The Service Provider must affect from the Commencement date and maintain with an insurer acceptable to the Client, insurance policies sufficient to cover its potential liabilities arising under the Contract. At a minimum a Service Provider must provide the following insurance policies:
11.1.1 public liability insurance for not less than $5 million in respect of any single event.
11.1.2 workers compensation and employer’s liability insurance, in accordance with applicable statutory requirements and
11.1.3 professional indemnity insurance for no less than $1 million for any one claim, and in the aggregate
11.2 The professional indemnity insurance is to be maintained by the Service Provider for at least seven years after the date for completion, or date of expiration of the Contract.
11.3 At the Client’s request the Service Provider must provide evidence of the terms and currency of insurances affected by the Service Provider.
11.4 The Service Provider must, if requested by the Client, provide any information required to complete any proposal for a policy of insurance to be affected by the Client, in respect to the Services.
11.5 Immediately, but not more than 24 hours after the Service Provider becomes aware of any event, which may give rise to the insurance claim against or which might affect rights under the Service Providers insurance policies, the Service Provider must
11.5.1 notify the Client in writing of the claim and
11.5.2 give the Client any information regarding the claim the client may require
12. Intellectual property
12.1 The Service Provider warrants that in performing its obligations under the Contract it will not infringe intellectual property rights and moral rights of either the Client or any third party.
12.2. All intellectual property created by the Service Provider solely for the purposes of the provision of the contracted Service to the Client will vest in and be assigned to the Client and the Service Provider must do everything required to ensure that the Client is a lawful owner of all intellectual property so created.
13.1 If the Service Provider is in breach of any of its obligations under the Contract, subject to clause 13.2. The client may give the Service Provider a notice in writing, requiring the Service Provider to remedy the breach. And if the Service Provider fails to remedy the breach within the period stipulated in the notice the Client can immediately terminate the Contract by notice in writing to the Service Provider.
13.2 The Client may terminate the Contract immediately by giving a written notice to the Service Provider. If the Service Provider breaches clauses, 7,10, 11, or 12.1, or commit any other substantial breach of the Contract.
13.3. The client may terminate the Contract, without reason at any time by 14 days notice in writing to the Service Provider. The client will only be liable to the Service Provider for the payment of any fee payable under the Contract to the date of termination under this clause, and any reasonable expenses the Service Provider has incurred in connection with the Contract to the date of termination under this clause.
13.4 Any warranties, indemnities and liabilities express or implied from the Service Provider within this contract will cease at the point of a termination defined in clause 13.3.
14. Set off
Without limiting any other right or remedy the Client may have under the Contract. Any monies owing to the Client in connection with the Contract may be deducted from monies otherwise payable to the Service Provider, under the Contract.
15. Confidentiality and access to information
15.1. For the purposes of this clause Personnel has the same meaning as included in clause 10.1. the Service Provider and its personnel must keep confidential, all the information which is reasonably regarded as confidential by the Client and which the Service Provider or its personnel receives or comes across in the process of performing his obligations under the Contract.
15.2 The Service Provider must
15.2.1 keep adequate records, and
15.2.2 upon request, provide the Client with all information required to ensure the Client complies with its obligations under the applicable Privacy Act or any similar act relating to Privacy or Freedom of information.
16. Conflict of interest
16.1 The Service Provider must notify the Client immediately if it becomes aware of a potential conflict of interest with any party or activity required as part of the Case or work to be undertaken.
16.2 Following notification that a Conflict of interest has arisen the Service Provider must notify a relevant person acting on behalf of the Client, the nature of the Conflict and cease all activities on the case pending a response from the Client.
16.3 In the case of a Conflict of Interest the Client may;
16.3.1 terminate the contract with the Service Provider effective immediately;
16.3.2 require that the Service Provider allocates the outstanding work to an alternative supplier;
16.3.3 request that the Service Provider continue with the case.
16.4 In the instance where the contract is terminated under this clause, the Client will pay to the Service Provider, all outstanding monies due up until termination of the contract.
16.5 In the instance where the work is allocated to another Service Provider under this clause, the Client will be liable to pay the Service Provider all outstanding monies up until the work is reallocated and to pay any additional monies to the replacement Service Provider as specified in the new agreement with the replacement Service Provider.
The Service Provider must not furnish any information, make any statements or issue any documents or printed material about or in relation to the Contract in any media without the prior written approval of the client.
The Service Provider cannot assign, charge or otherwise deal with its rights and obligations under the Contract, without prior written consent from the Client. The Client has the right to assign, charge or otherwise deal with its rights and obligations under the Contract as the Client thinks fit and without prior consent of the Service Provider.
If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect.
20. Governing law
The Contract is governed by the laws of New South Wales.
21. No partnership or agency relationship
Nothing in this Contract is intended to or will operate to create a partnership, agency or employer employee relationship of any kind, between the parties or to authorize either party to act as agent for the other.
22. No waiver
Failure or omission by either party at any time to enforce or request strict or timely compliance with any provision of the Contract will not affect or impair that provision in any way, or the rights of that party to avail itself of the remedies, it may have, in respect of any breach of such provision.
23.1 Clauses 10, 11, 12, 15 and 16 will survive the expiry or termination of the Contract.
24. Dispute resolution
24.1 Subject to the right of a party to seek injunctive or urgent declaratory relief, neither party will commence proceedings in respect of any dispute before this clause 24 has been complied with.
24.2. If a dispute in relation to the Contract arises between the Client and the Service Provider, either party can give the other written notice of the dispute setting out reasonable detail of the dispute, including its basis.
24.3 Within seven days of the date of the notice under clause 24.2, the representatives of the party of appropriately seniority must meet at least once, and in good faith attempt to resolve the dispute by negotiations held on a without prejudice basis.
24.4 Despite any dispute the Service Provider must continue to perform its obligations under the Contract.