Terms & Conditions
Mayodon Holdings Pty Ltd A.C.N 609 992 396 Services Agreement
A. The Customer and Mayodon have agreed to enter into this agreement to provide the services specified in the Schedule (“the Work”) subject to the terms and conditions set out in this agreement.
Now the parties do hereby agree one with the other as follows:-
The parties agree that the matters referred to in the recitals are true and correct and form part of this agreement.
2. Agreement for Services
2.1. The Customer agrees to engage Mayodon as a consultant to perform the Work upon the terms and conditions contained in this agreement.
2.2. This agreement shall commence on the Commencement Date and shall continue until the Work has been completed or until this agreement is otherwise terminated by either party in accordance with this agreement.
2.3. The parties agree that Mayodon will complete the Work within the period specified as the Term of Contract.
2.4. Mayodon shall perform such services as are described to complete the Work described in the Schedule.
3. Variation of Works
3.1. The Customer and Mayodon may vary the Work to be performed under this agreement by written agreement.
3.2. No variation of the Work shall invalidate this agreement.
4.1. In consideration of Mayodon completing the Work required by this agreement, the Customer shall pay Mayodon the Contract Fee prior to the Work being undertaken.
4.2. Unless otherwise agreed in writing from time to time, the Contract Fee shall be fixed and is not subject to any increase or decrease.
5. Duration of Agreement
5.1. This agreement continues for the Term unless otherwise stipulated or terminated in accordance with the terms and conditions of this agreement.
5.2. Following expiry of the Term, the agreement will automatically renew for subsequent periods of thirty (30) days (each a Subsequent Term).
5.3. The renewal will occur unless the Customer notifies the Company in writing at least 30 days prior to the expiry of the Term (or Subsequent Term) of the Customer’s intention to allow the Agreement to expire.
6.1. Mayodon shall submit a proper and valid Tax Invoice to the Customer, in accordance with the GST Act, for the Work to be completed in accordance with this agreement.
6.2. Payment shall be made to Mayodon by the Customer within fourteen (14) days of the receipt and acceptance by the Customer of Mayodon’s proper and valid Tax Invoice or within such other period as may be agreed in writing between the parties from time to time
6.3. Mayodon will charge a fee for accepting payment of moneys due and owing under this Agreement by way of credit card. The amount of the fee will be equivalent to one and a half percent (1.5%) of the amount of any such payment(s).
7. Covenants by Mayodon
7.1. Mayodon shall ensure that all persons engaged by it in the performance of the Work, whether as employees, subcontractors or otherwise, are appropriately skilled and qualified for the performance of the task and that they exercise the levels of care, skill and diligence which are necessary to enable Mayodon properly to discharge its obligations under this agreement.
8. Acknowledgments by the Customer
8.1. The Customer acknowledges and agrees that Mayodon is engaged by the Customer as an independent contractor upon the terms and conditions of this agreement and that Mayodon is not and cannot be deemed to be an employee of the Customer or an agent of the Customer or in partnership with the Customer.
8.2. The Customer agrees:
(a) To make available to Mayodon such information and records as it may require to deliver the Work; and
(b) To give adequate notice to Mayodon of its requirements relating to plant and equipment, staff, premises and to such other matter as may be necessary to enable Mayodon to deliver the Work.
8.3. The Customer acknowledges that notwithstanding the delivery of the Work by Mayodon or its servants, agents or contractors, the Customer remains solely responsible for the operation of their business including all matters relating to Mayodon or the Work and that in no circumstances will the Customer have a right of action against Mayodon in respect of any claim or action instituted by or made against the Customer in respect of the Work and agree that this document may be pleaded as a bar against any such proceedings and the Customer hereby indemnifies Mayodon against any such claim whatsoever, including but without limitation, by any employee, agent, contractor or customer of the Customer or by the Customer.
9.1. The Customer covenants and agrees with Mayodon that it shall:
(a) At all times observe strict secrecy in relation to the Confidential Information and Confidential Documentation of Mayodon which is received by Mayodon or obtained in the course of the performance of the Work under this agreement;
(b) Maintain the confidentiality of the Mayodon’s Confidential Information and Confidential Documentation and restrict access to same to only those of its employees or agents who need use of it directly in relation to Mayodon’s performance of the Work;
(c) Not disclose the Confidential Information or Confidential Documentation to any third party without the prior written consent of Mayodon;
(d) Not use the Confidential Information or Confidential Documentation of Mayodon for any purpose other than directly in relation to Mayodon’s performance of the Work under this agreement; and
(e) Return all Confidential Information and Confidential Documentation to Mayodon at the termination of this Contract.
9.2. The Customer does not acquire by implication or otherwise any interest, property, rights, title or licence in respect of Confidential Information and Confidential Documentation provided to it by Mayodon and, at the request of Mayodon, the Customer shall return all documents containing Confidential Information and all Confidential Documentation to the Customer, including any copies made by, for or on behalf of the Customer.
9.3. The Customer hereby indemnifies and shall keep indemnified Mayodon from and against any and all (including consequential, special and direct) damages, loss, costs, expense or liability incurred or suffered by Mayodon at any time as a direct or indirect result of any breach of this clause by the Customer.
9.4. The obligations of confidentiality under this agreement shall be a continuing obligation and shall survive the expiration of this agreement.
10. Intellectual Property
10.1. The Work may contain copyright material, brand names, trademarks and other Intellectual Property Rights which are owned by third parties and protected by law (“the Third Party Rights”)
10.2. The Customer must not use, reproduce, transmit, adapt, vary, modify or infringe any of the Intellectual Property or the Third Party Rights for commercial use except as otherwise expressly authorised by this agreement or with the express prior written consent of Mayodon.
11.1. The Customer acknowledges and consents to the Personal Information provided by the Customer being held by the Mayodon.
11.2. Mayodon may use the Personal Information provided by the Customer or any Guarantor for the purposes of the Work and for direct marketing of other services offered by the Mayodon or an organisation it is affiliated with or represents. The Customer has the right to request not to receive direct marketing material.
11.3. The Customer consents to Mayodon collecting and using its Personal Information as specified above.
11.4. The Customer acknowledges that disclosure of such Personal Information may be compelled by law and the Customer authorises Mayodon to disclose this information where they are lawfully obliged to do so.
11.5. The Customer acknowledges and agrees that if the Customer fails to meet their payment obligations under this agreement, Mayodon may report or disclose the Customer’s credit related personal information to a credit reporting body, such as Veda. The Customer acknowledges that they have consented to Mayodon doing so.
The Customer shall be responsible for and shall indemnify and keep indemnified Mayodon and its directors, officers and employees from and against liability for all loss damage or injury to persons or property caused by the Customer or its servants, employees, agents or subcontractors (including any loss, damage or injury which may be suffered by the Customer or any of its employees, agents or others engaged by the Customer) arising directly or indirectly out of the performance of the Work and/or in connection with this agreement and the amount of all actions, proceedings, claims, damages, costs and expenses which may be taken or made against the Customer (or which Mayodon incurs or which become payable by Mayodon) in respect of any such loss, damage or injury shall be made good at the Customer’s expense.
13. Liability of Mayodon
13.1. To the full extent permitted by law, Mayodon excludes all liability in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement.
13.2. Subject to clause 13.1, either party’s liability for any claim relating to or arising out of this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
13.3. The Customer warrants that it has not relied on any representation made by Mayodon which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Mayodon.
13.4. The Customer acknowledges that to the extent Mayodon has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
13.5. The Customer shall not hold liable Mayodon for any damages claimed by the Customer based on or arising out of any third party Claim.
13.6. The Customer shall at all times indemnify and hold harmless Mayodon and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) a breach by the Customer of its obligations under this Agreement; or
(b) any wilful, unlawful or negligent act or omission of the Customer.
14. Implied Terms
14.1. Subject to clause 14.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
14.2. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of a liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of Mayodon for any breach of such condition or warranty shall be limited, at the discretion of Mayodon, to one or more of the following:
(a) if the breach relates to goods (e.g. software, documentation etc):
(i) the replacement of the goods or the supply of relevant goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
Mayodon shall be entitled to use its competent employees, agents and subcontractors to provide the services required to perform the Work, provided all persons engaged by Mayodon to provide the services shall be and remain employees or agents or subcontractors of Mayodon who shall be solely responsible for all payments to and entitlements of each of them and Mayodon shall indemnify the Customer in respect thereof.
16. Provision of Materials
In performing the Work, Mayodon may use such facilities as are made available by the Customer at the Customer’s absolute discretion, however any tools, equipment, materials and supplies not provided by the Customer shall be provided by Mayodon at its own expense subject to clause 17.
The Customer shall reimburse Mayodon the amount of all expenses reasonably and properly incurred by it in the performance of its duties under this agreement, including travel expenses, accommodation expenses (if any), and all other expenses incurred or required to be incurred by Mayodon to promptly and efficiently provide the consultancy services.
18. Other Work
The Customer acknowledges and agrees that Mayodon is free to undertake work with other parties.
19. Suspension of Services
Mayodon may suspend the Works immediately by notice in writing if any payment due from the Customer to Mayodon pursuant to this agreement remains unpaid for a period of fourteen (14) days.
20.1. Mayodon may terminate this agreement immediately by notice in writing if any payment due from the Customer to Mayodon pursuant to this agreement remains unpaid for a period of thirty (30) days.
20.2. Mayodon or the Customer may terminate this agreement immediately on notice in writing to the other party if:
(a) The other party becomes, threatens or resolves to become or is in jeopardy of becoming, subject to any form of insolvency administration.
(b) The Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving.
(c) The other party breaches any clause of this agreement and such breach is not remedied within seven (7) days of written notice by the party claiming such breach.
(d) The other party ceases or threatens to cease conducting its business in the normal manner.
20.3. Notwithstanding the preceding paragraphs, either party may terminate this agreement by giving thirty (30) days’ notice to the other party.
20.4. If notice of termination is given pursuant to the preceding clauses, the party terminating the contract may:
(a) Retake possession of all their property in the possession of the other party;
(b) Be regarded as discharged from any further obligations under this agreement; and
(c) Pursue any additional or alternative remedies provided by law.
21.1. In the event of any dispute arising between the parties relating to the provision of services under this agreement or the interpretation or application of this agreement, then such matter shall:-
(a) In the first instance be referred by one party to the other and the parties shall use all reasonable endeavours to resolve the difference or dispute without resort to future process, and
(b) If the difference or dispute cannot be resolved in such a manner within fourteen (14) days of the difference or dispute arising then it shall be referred to an Expert appointed by agreement between the parties or failing agreement by the President for the time being of the Institute of Arbitrators Australia (Queensland Chapter)(the ‘Expert’) for determination. As to that determination:
(i) The Expert acts as an expert and not as an arbitrator;
(ii) The Expert must take written submissions from each party if those submissions are received within the time limit by the Expert;
(iii) The Expert’s decision is final and binding;
(iv) The Expert is obliged to give reasons;
(v) Each party must direct the Expert to provide a decision within seven (7) Business Days of its appointment; and
(vi) The Expert’s costs shall be paid by the party determined by the Expert to be the party responsible for the payment of the Expert’s costs.
21.2. Notwithstanding the above, nothing in this clause shall prevent a Party from commencing proceedings to enforce a right to payment or to obtain urgent relief, injunctive relief, or declaratory relief.
22.1. A notice given by a party under this agreement must be in writing and delivered by hand or registered post or sent by facsimile or email. A communication will be deemed to be received:
(a) If hand delivered, on the next following business day;
(b) If posted, on the third business day after posting; or
(c) If sent and received by facsimile, when the sender obtains a clear transmission report;
(d) If sent and received by email, when the email is received in the recipient’s email server.
23. Variation of Agreement
This agreement may be amended or varied only by agreement in writing signed by the parties. Unless the context otherwise requires, a reference to this agreement shall include a reference to this agreement as amended or varied from time to time.
24. Non Waiver
The failure by Mayodon to insist upon strict performance of any of the covenants or agreements in this agreement or any delay by Mayodon in exercising any of its remedies or rights shall not constitute or be deemed a waiver or variation by Mayodon of any of the covenants or agreements or a waiver of any default or remedy and no waiver by Mayodon of any breach shall constitute waiver of further or subsequent breaches by the Customer.
If a court determines that a provision of this agreement is unenforceable, illegal or void then the remaining provisions shall nevertheless be unaffected and shall continue in full force and effect.
26. Entire Agreement
This agreement contains the entire agreement between the parties and both parties agree that there are no other terms, representations or understandings except those set out in this agreement.
27. Governing Law
This agreement is governed by the law of the State of Queensland and both the Customer and Mayodon agree to submit to the jurisdiction of the courts of that State for any proceedings arising out of this agreement.
Each of the parties shall bear their own costs and expenses of an incidental to the negotiation and preparation of this agreement.
29.1. Mayodon may at any time during the currency of this agreement, assign its rights hereunder and thereafter give notice in writing of same to the Customer.
29.2. The Customer shall not be entitled to assign this agreement without the prior consent in writing of Mayodon.
30. Force Majeure
30.1. Mayodon shall not be liable for any delay or failure to perform its obligations under this agreement (other than the obligation to pay money) if such failure or delay is due to force majeure.
30.2. Mayodon shall notify the Customer as soon as practicable of any anticipated delay due to force majeure. The performance of Mayodon’s obligations under this agreement shall be suspended for the period of the delay due to force majeure.
30.3. If a delay due to force majeure exceeds thirty (30) days, the Customer may terminate this agreement immediately on providing notice to Mayodon. If the Customer gives such notice to Mayodon, then Mayodon shall refund moneys previously paid by the Customer under this agreement for which no services have been provided.
31. Business Day
If any act, matter or thing is to be done on a day that is not a Business Day in the place in which the act, matter or thing is to be done, it may be done on the first Business Day after that day.
32. Facsimile and Email Copies
The parties agree that the signing of a copy of this agreement and the faxing or emailing of such copy of this agreement to another party or their solicitor shall constitute due signing and delivery by the party signing and faxing or emailing the same.
This Agreement may be executed in any number of counterparts and all of those counterparts taken together shall be deemed to constitute one and the same instrument.
34. Non Merger
To the extent to which any of the obligations of a party have not been fully performed during the Term of Contract then those obligations shall continue after the Term of Contract until full performance by that party or that party’s release from performance by the other party and any provisions of this agreement relating to those obligations shall not merge on the termination of this agreement but shall continue in full force and effect until that performance or release.
35. Time of the Essence
Time is of the essence of this agreement.
36. Interpretation and Definitions
36.1. In these terms and conditions unless the contrary intention appears or the context otherwise requires or admits the following expressions shall have the following meanings:
(a) “Business Day” means any day except Saturday or Sunday or a day that is a public holiday in State that the Work is being performed;
(b) “Commencement Date” means the commencement date specified in the Schedule;
(c) “Confidential Documentation” means correspondence, reports, accounts, bank, legal and other documents, recordings or photographs which are marked “Confidential” or which contain or relate to Confidential Information and all copies thereof;
(d) “Confidential Information” means all information and knowledge (however sourced) concerning any of the procedures or services existing or future of Mayodon, ideas and concepts and all business confidences of Mayodon but excluding any such information, knowledge, ideas and concepts or confidences to the extent that the same are or become public knowledge through no act or failure on behalf of the Customer or which the Customer can show was already in the possession of the Customer at the time of disclosure to the Customer and was not acquired directly or indirectly from Mayodon or from any third party under an obligation of confidence for which the Customer can show has or shall have been received from any third party who did not require the Customer to hold the same in confidence and who did not acquire the same directly or indirectly from Mayodon;
(e) “Contract Fee” means the total amount to be paid to Mayodon by the Customer for the performance of the Work, including any incentives, bonuses and commissions, as more particularly described in of the Schedule;
(f) “Customer” means the person more particularly described in the Schedule;
(g) “Customer’s Premises” means the address of the Customer specified in the Schedule;
(h) “Force Majeure” means any act, omission or circumstance over which Mayodon could not reasonably have exercised control;
(i) “GST Act” means the Act titled A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time;
(j) “GST” means the definition given to this term by the GST Act;
(k) “Intellectual Property Rights” means copyright, trade mark, design, patent, semiconductor or circuit layout rights;
(l) “Mayodon” means Mayodon Holdings Pty Ltd ACN 609 992 396;
(m) “Personal Information” has the same meaning as it has in section 6(1) of the Privacy Act 1988 (Cth), to the extent applicable to this agreement;
(n) “Schedule” means the Schedule attached to this agreement;
(o) “Term of Contract” means the period of time in which Mayodon is required to perform the Work, as more particularly described in the Schedule; and
(p) “the Work” means the services to be provided by Mayodon under this agreement as specified in the Schedule.
36.2. Unless the contrary intention appears or the context otherwise requires:
(a) The singular includes the plural and vice versa;
(b) A reference to a gender includes all genders;
(c) A reference to a person includes a reference to a firm, corporation, other corporate body or legal entity;
(d) A reference to a natural person includes the heirs, executors, administrators and permitted assigns of that person and a reference to a corporate body includes the successors and permitted assigns of that corporate body;
(e) A reference to a person or corporate body shall be taken to include that person or body acting in a trustee or other representative capacity;
(f) A reference to two (2) or more persons means those persons jointly and severally;
(g) Where a word or expression is defined, other parts of speech and grammatical forms of that word or expression have corresponding meanings;
(h) Headings are for ease of reference and do not affect the construction of this document;
(i) A reference to a statute shall include all amendments for the time being in force and any other statute enacted in substitution therefore and all regulations proclamations ordinances and by-laws for the time being in force under that statute and any notice demand order direction requirement or obligation pursuant to or under that statute or those regulations, proclamations, ordinances and by-laws;
(j) A reference to a recital, clause, schedule or annexure is to a recital, clause, schedule or annexure of or to this document and a recital, schedule or annexure forms part of this document;
(k) A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, restated or replaced from time to time; and
(l) A reference to a consent or approval being required from a party is to the prior written consent of the relevant party in its absolute discretion.