Terms & Conditions
1 Definitions and interpretation
In this Agreement except where and to the extent the context requires otherwise, words defined have the meaning ascribed to them and other defined words are as follows:
Confidential Information means all information given or disclosed to Planit, in the performance of the Services, whether or not in material form, all information which is not generally known to 3rd parties including without limitation to
- confidential information relating to the design, creation and implementation of the Application;
- information relating to the personnel, policies or business strategies
GST means a goods and services tax imposed by legislation enacted by the Commonwealth Government of Australia;
Material means any tangible or intangible material and includes:
- documents, records, equipment and any other goods;
- software (whether in human or machine readable form), data and any other information,
developed or produced by Planit (Planit Material) in the performance of the Services or owned by Digital QA client and provided to Planit for the purposes of the Scope of Work (Digital QA client Material);
Payment means any amount payable under or in connection with this Agreement and includes the provision of any non-monetary consideration;
Personnel means employees of Planit engaged by it in the performance of the Services; and
Tax Invoice takes the meaning it is given under any legislation imposing GST.
In this Agreement, unless the contrary intention appears:
- headings are for convenience only and do not affect the interpretation of this Agreement;
- a reference to the singular includes the plural and vice versa;
- a reference to a natural person includes any company, partnership, joint venture, association, corporation or other body corporate;
- a reference to paragraphs, clauses, recitals and schedules are references to paragraphs, and clause of, and recitals and schedules to, this Agreement;
- a reference to a document includes all variations, amendments or supplements to, or replacements of, that document; and
- a reference to a party to a document includes that party’s successors and permitted assigns.
2 Term of Agreement
This Agreement will commence on the Commencement Date and continue until the completion of the Services, unless earlier terminated under clause 3.7 or 10.
3 Project services
3.1 Specification of Services
Planit will provide the Services at the Location in accordance with the terms and conditions of this Agreement and the Scope of Work. Digital QA client must give not less than one (1) normal working days’ notice to Planit that it requires the provision of the Services.
Planit agrees to comply with all reasonable security provisions and measures put into effect from time to time Digital QA client any lawful directions regarding security and safety at the Location. Digital QA client will provide Planit its safety and security practices and procedures relevant to the Location.
Planit shall ensure that Personnel comply with the provisions of clause 3.2.
3.4 Normal Working Hours
Planit will deliver the Services during Digital QA client Working Hours.
3.5 Time and expense reporting
Planit will record the activities performed, hours worked and expenses incurred each week in performing the Services on a timesheet and expense report. Planit is solely responsible for completing the timesheet and expense report, and providing the timesheets by the following Monday for approval.
3.6 Professional manner
Planit must at all times behave and perform the Services in a professional, timely and competent manner, including without limitation, in accordance with a high standard of honesty and integrity.
3.7 Deficiency in performance
If Planit is unable, for any reason, to reasonably perform the Services in accordance with the Scope of Work:
- Digital QA client will promptly give Planit one week written notice identifying any perceived deficiencies and details of the perceived deficiencies;
- Planit will immediately take all necessary steps to correct such deficiencies; and
- if the deficiency cannot be, or is not, rectified to the reasonable satisfaction of Digital QA client may terminate the Agreement.
- Planit shall be responsible for engaging any Personnel and ensuring that they are fully qualified and suitable to perform the Services in a professional, timely and competent manner including, without limitation, in accordance with a high standard of honesty and integrity.
- Digital QA client may, request Planit to promptly remove any Personnel engaged in the provision of the Services by providing Planit with reasons for the request, and where both parties agree Planit will replace any Personnel as soon as practicable.
5 Independent Consultant
5.1 Independent Consultant
Planit is engaged as an independent consultant of Digital QA client in the performance of the Services. Planit acknowledges that it is not an agent, partner or employee of Digital QA client. Neither party has the right or authority to bind the other to any agreement with any third party.
5.2 Filing of forms and documents
Planit agrees and warrants that it will file all necessary forms and/or documents and will make all payments necessary to maintain Planit's status as an independent contractor.
6 Legislative, regulatory and government requirements
Planit acknowledges and agrees that Planit is solely responsible for complying with all legislative, regulatory and other government requirements for itself including in relation to workers compensation and entitlements the payment of all taxes and superannuation contributions and taking out and maintaining appropriate insurances, including, without limitation, complying with all legislative, regulatory and other requirements in respect of Personnel (if any), and undertakes to Digital QA client to comply with all such requirements.
7.1 Service Rate
The Service Rate will be payable to Planit in respect of the time spent by Planit in performing the Services and approved by Digital QA client pursuant to clause 3.5 unless a fixed cost is included in the Scope of Work
The Service Rate will be due and payable to Planit within 45 days of receipt by Digital QA client of a correctly rendered Tax Invoice. A Tax Invoice is correctly rendered if: invoices on completion of milestones or contract.
- the Service Fee is correctly calculated and due for payment;
- the invoice is set out in a manner that enables Digital QA client to ascertain the Services to which the invoice relates; and
- the invoice is accompanied (where necessary or where requested by Digital QA client ) by verifying documentation, including a timesheet and expense report.
7.3 Taxes and government charges
The Service Charges are exclusive of GST. Where GST is payable, Planit will issue an invoice for the Service Charges with an additional amount that represents the GST payable by Digital QA client in relation to those Services.
Digital QA client will reimburse Planit for all reasonable out-of-pocket expenses incurred in performing the Services, with the prior written consent of Digital QA client less any input tax credits available to Planit in respect of the cost.
Planit acknowledges that Planit will perform the Services under the direction of Digital QA client Planit agrees to indemnify Digital QA client , its officers, employees and agents from and against all losses, damages, costs (including, without limitation, legal costs), actions, claims, charges, demands or liabilities arising in connection or as a consequence of:
- any infringement of the intellectual property rights of any person by Planit of Personnel; and
- any damage to property or injury or death of any person caused or contributed by Planit or Personnel.
9.1 Insurance policies
Planit undertakes that it will maintain at all times during the term of this Agreement:
- Public liability insurance to an amount of not less than $5 million;
- relevant workers or accident compensation legislation, with respect to any of Personnel who perform Services pursuant to this Agreement; and
- Professional indemnity insurance of not less than $5 million.
9.2 Limitation of liability
9.3 Certificate of currency
Planit must give Digital QA client a copy of any insurance policy referred to in sub-clause 9.1 and/or a certificate of currency for any such insurance upon request.
The Agreement may be terminated by either party for any reason on not less than 5 working days’ notice in writing to the other party.
10.2 Termination by immediate notice
Digital QA client may terminate this Agreement immediately by written notice to Planit if Planit:
- commits any serious or persistent breach of any of the provisions of this Agreement;
- is guilty of misconduct;
- fails to promptly notify Digital QA client of a conflict of interest or is unable or unwilling to resolve or deal with a conflict of interest or potential conflict of interest;
- becomes bankrupt, insolvent or is unable to pay its debts when due or is deemed unable to pay its debts when due under any applicable legislation or enters into a scheme of arrangement with creditors; or
- ceases, or threatens to cease, to carry on business.
On termination Planit may cease providing services with immediate effect and Digital QA client will pay for any work undertaken to the date of termination as evidenced by approved timesheets.
11 Confidential Information
11.1 Confidential Information of Clients
Planit acknowledges that in the performance of the Services, Planit may be furnished or may otherwise receive or have access to Confidential Information.
11.2 Confidential Information
Except as otherwise provided by this Agreement, Planit will not, without the prior written consent of Digital QA client disclose to a third party, or use for its own or a third party’s benefit, any Confidential Information, other than information which:
- is or becomes public knowledge other than by breach of this Agreement or by any unlawful means; or
- is in the possession of Planit without restriction in relation to disclosure before the date of receipt from the Client; or
- has been independently developed by Planit outside scope of this Agreement; or
- has been independently developed or acquired by Planit; or
- is required to be disclosed by law.
11.3 Planit’s obligations
- ensure all Personnel comply with the provisions of this clause 11 in relation to Confidential Information; and
- upon the expiration or termination of this Agreement, or upon demand by Digital QA client , promptly return to Digital QA client all Confidential Information in Planit’s possession or control.
12.1 Return of Material
Upon the earlier of termination or expiration of this Agreement or upon demand Planit will promptly return to Digital QA client all Digital QA client Material in Planit’s possession or control.
12.2 Use and disclosure
Planit will ensure that any Digital QA client Material provided to it by Digital QA client is used solely for the purposes of this Agreement and for no other purpose. Planit will ensure that no Digital QA client Material is disclosed or made available to any person without the prior written consent of Digital QA client.
13 Intellectual property rights
13.1 Assignment of intellectual property rights
- Planit assigns to Digital QA client all copyright and other intellectual property rights in the Planit Material if and when arising in or in connection with the performance of the Services. At the request and expense of Digital QA client Planit shall execute all documents and instruments and do all things to complete or perfect the assignment set out in this clause 13.1.
- In respect of any intellectual property held by Planit before this Agreement and used in the fulfilment of the Services under this Agreement, Planit grants a non-exclusive, perpetual, royalty-free license to use all copyright and other intellectual property rights and consents to any action by Digital QA client that may infringe any moral rights existing now or conferred later, in, or relating to works, know-how, trade secrets, inventions, discoveries, improvements or developments created, made or discovered by Planit in or in connection with the performance of the Services.
13.2 No infringement of intellectual property rights
- Planit warrants that the performance of the Services does not infringe the intellectual property or moral rights of any person and will notify Digital QA client as soon as practicable if it becomes aware of any infringement.
- Planit warrants that the use by Digital QA client of any intellectual property assigned pursuant to this Agreement will not infringe the moral rights of the Personnel or any third party.
14 Conflict of interest
Planit represents and warrants to Digital QA client that, to the best of Planit’s knowledge and belief, at the Commencement Date no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement.
15 Planit's representations and warranties
15.1 Degree of skill care and diligence
Planit represents and warrants that it will perform the Services with the degree of skill, care and diligence expected of a consultant experienced in providing the same or similar services and that it will comply with all applicable laws and standards relating to the performance of the Services.
Neither party will contract, transfer or assign any or all of its rights, benefits or obligations under this Agreement without the prior written consent of the other party.
17 Governing Law
This Agreement is governed by the laws in force of the State of New South Wales and the parties submit to the jurisdiction of any court applying those laws.
Planit and Digital QA client undertake in good faith to use all reasonable endeavours to resolve by mutual negotiation or mediation any dispute arising between them in connection with this Agreement. If the parties fail to resolve any dispute by mutual negotiation within 14 days from the dispute first arising the parties may refer the dispute to a mutually agreed mediator for non-binding mediation, or, if the parties are unable to mutually nominate a mediator, one will be nominated by the CEO of the Australian Commercial Dispute Centre, Sydney (ACDC) and the rules of the ACDC for mediation shall apply.
Failure or delay by either party in enforcing any of the terms or conditions of this Agreement will not constitute a waiver of the party’s rights to enforce that or any other term or condition of this Agreement.
20 Force Majeure
If the performance of this Agreement or of any obligation under it, except the making of payments under or in connection with this Agreement, by a party is prevented, restricted or interfered with by reason of fire, storm, explosion, flood, earthquake, war, rebellion or other casualty or accident, labour dispute, or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use all reasonable efforts to avoid or remove the causes of non-performance and to cure and complete performance with the utmost dispatch.
21 Service of notices
Any notice or other communication required to be given under this Agreement will be sufficiently given to either party if the notice or communication is in writing and forwarded by post, facsimile or e-mail to the registered address or usual or last known place of business or abode of the relevant party. Every notice shall be deemed to have been received and given at the time when in the ordinary course of transmission or delivery it should have been delivered or received at the address to which it was sent.
The clauses in this Agreement are severable from one another. If one or more of the clauses in the Agreement are found to be unenforceable they must be severed from this Agreement and the Agreement shall remain enforceable.
23 Agreement and variation
The parties agree that:
- this Agreement is the entire agreement between Planit and Digital QA client in relation to the Services and supersedes any other oral or written communication or understandings between Planit and Digital QA client ; and
- the terms and conditions of this Agreement may only be modified by the agreement of both parties in writing.
During the Term and for a period of 6 months after the Term, both parties will not directly or indirectly solicit or recruit or attempt to solicit for employment, employ, recruit, hire or utilise as an independent contractor any employee or contractor of the other party or any of its Affiliates, for its own benefit or for the benefit of an other person without the prior written consent of the other party. This clause 24 will survive termination of this agreement.
If this Agreement is signed in counterparts, each is deemed an original and all constitute one and the same instrument.