Cavedale Advisory Pty Ltd
(ACN 667 169 557)
1. Definitions and Interpretation
In this Agreement unless the context indicates otherwise, the following words will have the following meanings:
Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this agreement or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Confidential Information includes any information marked as confidential and any information received or developed by Cavedale during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business. This includes 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.
Contract IP means Intellectual Property created by Cavedale in the course of performing its obligations under this Agreement.
Deliverable means the goods or services to be supplied by Cavedale pursuant to this agreement.
Facilities means working space, computer equipment, access to the internet and
the Client’s computer network, telecommunications system etc. It
includes access to such resources but also use of them to the extent required by Cavedale in order to perform the Services.
Fee(s) means the fee payable by the Client.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, COVID-19, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a Subcontractor.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Personal Information has the meaning as defined in any applicable Privacy Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001 (Cth).
Services means the services to be provided by Cavedale.
Termination Date means the date specified by Cavedale.
1. 2. Interpretation
In this Agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
(e) reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) 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;
(g) the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
(h) 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
(i) the word "including" (and related forms including "includes") means "including without limitation".
(a) Cavedale will provide the Services to the Client subject to the provisions of this Agreement.
(b) Cavedale will perform the Services in the manner, place and time as specified to the Client.
(c) Cavedale will use reasonable endeavours to complete the Services including the provision of data, materials or reports during the Term and before the Termination Date, or any other dates agreed by the Parties.
Cavedale will provide the Services in places and locations as Cavedale considers appropriate to the type and nature of the requirements of the Client.
4. 1. Payment of Fees
(a) In consideration of the provision of the Services in accordance with this Agreement, the Client will pay Cavedale the Fee without set-off or deduction.
(b) Where Cavedale charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rata basis.
(c) The Client acknowledges that the Fees are exclusive of any GST and therefore, Cavedale Advisory Pty Ltd will be entitled to add on GST.
4. 2. Invoicing
(a) Cavedale will provide the Client with a tax invoice in accordance with the GST Law in relation to Fees payable.
(b) Payment will be made by the Client to Cavedale within 14 days after receiving Cavedale’s invoice.
(c) When making a payment, the Client must quote relevant reference numbers and the invoice number.
4.3. Variation of Fees
(a) Cavedale is entitled to vary their rates during the Term with written notice to the Client 14 days prior to the change being implemented.
(b) If the Client requires Cavedale to perform Services that were not required under the original Agreement, then Cavedale will charge the Client at Cavedale’s standard hourly rate being $400 to perform the additional Services (notwithstanding any discount agreed to under the Agreement).
4.4. Costs and disbursements
In addition to the Fee, Cavedale will charge the Client for all costs and expenses Cavedale incurs in performing the Services, including, but not limited to, travelling, photocopying, courier services and postage.
4.5. Failure to pay
If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, Cavedale is entitled to do any or all of the following:
(a) charge interest on the outstanding amount at the rate of 10% per year above the base lending rate of Westpac Banking Corporation, accruing daily;
(b) require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
(c) not perform any further Services (or any part of the Services).
4.6. Disputed invoices
If the Client disputes the whole or any portion of the amount claimed in an invoice submitted by Cavedale,
the Client must:
(a) pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this agreement;
(b) notify Cavedale in writing (within 5 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice; and
(c) If Cavedale and the Client are unable to resolve the dispute as to the disputed amount claimed in an invoice as between themselves, then either Party may refer the dispute for mediation in accordance with clause 14 below.
5. Cavedale’s Personnel
(a) The Services will be performed by the employees or agents that Cavedale may choose as most appropriate to carry out the Services as agreed, from time to time by the Parties.
(b) If the Client
(i) delivers a notice in writing to Cavedale; and
(ii) has reasonable grounds which have been disclosed and discussed with Cavedale,
the Client may require Cavedale to cease to permit a particular person or persons employed by Cavedale or acting as agent for Cavedale to carry out the Services.
(c) If the Client delivers a notice referred to in clause 5(a), Cavedale must, as soon as it is practicable:
(i) cease to provide the service of the particular person or persons in respect of the Client’s business; and
(ii) provide the services of an alternative person or persons as may be reasonably acceptable to the Client
(d) Cavedale covenants that Cavedale is solely responsible for payment to Cavedale 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 Cavedale’s employees or agents.
(e) Cavedale must otherwise comply with legislation applicable to Cavedale’s employees and agents.
6. Client's Obligations
(a) During and the Term and in order for Cavedale to perform the Services, the Client will:
(i) cooperate with Cavedale as Cavedale reasonably requires;
(ii) provide the information and documentation that Cavedale reasonably requires;
(iii) make available to Cavedale such Facilities as Cavedale reasonably require in order to perform the Services; and
(iv) ensure that the Client’s staff and agents cooperate with and assist Cavedale.
(b) the Client will not charge for Cavedale’s use of the Facilities made available by the Client
(c) If the Client does not provide the Facilities that Cavedale reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by Cavedale in obtaining its own facilities to perform the Services will be paid by the Client
7. No partnership or employment relationship
(a) Nothing in this Agreement constitutes the relationship of employer and employee between the Client and Cavedale or between the Client and Cavedale’s agents or employees.
(b) It is the express intention of the Parties that any such relationships are denied.
8. Use of Subcontractors
(a) In addition to clause 5 above, Cavedale may engage other persons, who are not Cavedale’s employees or agents to provide some or all of the Services (‘Subcontractors’).
(b) Cavedale is responsible for the work of any of the Subcontractors.
(c) Subject to clause 8(d), any work undertaken by any of the Subcontractors will be undertaken to the same standard as stated in this Agreement.
(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in this Agreement (including as to timing or quality), any Services provided by the Subcontractors will be governed by the terms and conditions of that Subcontractor’s subcontract.
9. Disclosure and ownership of intellectual property
(a) The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any Party any right, title or interest in or to any Intellectual Property in any Background IP.
(b) Cavedale grants to the Client a worldwide, royalty free, perpetual, irrevocable, transferable, non-exclusive licence to use the Background IP to the extent necessary for the Client to derive full benefit from the Services.
(c) The Client acknowledges that ownership of the Contract IP remains vested in Cavedale. Cavedale grants to the Client an exclusive, perpetual, fully paid-up, revocable, worldwide licence to use the Contract IP for the sole purpose of enabling the Client to derive full benefit from the Services.
(d) These obligations under this clause 9 survive termination or expiry of this Agreement.
(a) A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
(b) The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
(c) At the Termination Date, or when earlier directed by the Discloser:
(i) all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
(ii) the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
(d) The Confidential Information does not include information which:
(i) is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by the Recipient; or
(ii) was known by the Recipient prior to the Discloser disclosing the information to the Recipient.
(e) The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.
(f) The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 10 by the Recipient.
(g) The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 10.
(h) The obligations accepted by the Recipient under this clause 10 survive termination or expiry of this Agreement.
11. Warranties, liability and indemnities
11. 1 Warranties
(a) Except as set out in this clause 11, Cavedale makes no warranties or representations in relation to the Services provided by Cavedale. The Services provided by Cavedale are for educational and coaching purposes only and do not constitute binding legal, business or financial advice or otherwise. Cavedale makes no representations or warranties that the Services are fit for the Client’s intended purpose.
(b) Cavedale warrants that it will use reasonable care and skill in performing the Services.
(c) If Cavedale performs the Services (or any part of the Services) negligently or materially in breach of this Agreement, then, if requested by the Client Cavedale will re-perform the relevant part of the Services, subject to clauses 11.5(a) and 11.5(b) below.
(d) The Client’s request referred to in clause 11.1(c) must be made within 1 month of the date Cavedale completed performing the Services.
Cavedale must take out the following insurance:
(a) professional liability insurance for a minimum amount of $1,000,000;
(b) public & products liability insurance for a minimum amount of $10,000,000; and
(c) worker’s compensation insurance as prescribed by law for Cavedale’s Personnel.
11.3 Compliance with Laws
Throughout this Agreement Cavedale must comply at Cavedale’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. This requirement applies to Cavedale or to the Services. Cavedale must indemnify the Client from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.
11.4 No warranties in relation to completion
Cavedale provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date any other date, whether stated in this agreement, the Services or elsewhere.
11.5 Limitation on liability
(a) Cavedale is not liable for any Losses, claims, damage or expense arising from or in connection with this Agreement whatsoever, except to the extent such Losses, claims, damage or expense are caused or contributed to by the negligent or deliberate or wilful act of Cavedale or Cavedale’s agents or employees and, in any event, shall not exceed the Fees received by Cavedale.
(b) Neither Party is 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 clause do not apply to clause 11.3. For the purposes of this subclause, “consequential loss or damage” means any Loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such Loss, whether or not such Loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this Agreement.
(c) All warranties, conditions, rights and guarantees implied by any statute or other law are expressly excluded. Where Cavedale’s liability cannot be excluded by operation of any statute including the Competition and Consumer Act 2010 (as amended) and the Australian Consumer Law, Cavedale’s liability shall be limited to:
(i) in the case of goods supplied to the Client the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the Client of the replacement or supply), or the repair of the goods (or the payment of the cost to the Client of the repair); and
(ii) in the case of services supplied to the Client the supply of the services again or the payment of the cost to the
the Client of having the services supplied again.
(d) Cavedale’s liability for any Losses, claims, damage or expense arising from or in connection with this Agreement whatsoever shall be limited to amount of Fees paid to Cavedale.
(e) If Cavedale is liable for any Losses, claims, damage or expense arising from or in connection with this Agreement that are covered under a policy of insurance held by Cavedale, then Cavedale’s liability shall be limited to proceeds of insurance under such an insurance policy.
11.6 No reliance
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. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
11.7 Survival of obligations
The obligations accepted by Cavedale and the Client under this clause 11 survive termination or expiry of this Agreement.
(a) the Client is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by the Client to Cavedale in connection with this agreement so as to ensure that Cavedale’s dealings with that information pursuant to this agreement comply with Cavedale’s obligations under any Privacy Laws.
(b) the Client must indemnify Cavedale against, and must pay Cavedale on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 12(a).
(c) the Client must:
(i) immediately notify Cavedale if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
(ii) comply with any directive from Cavedale as to which Party will discharge any statutory reporting obligation arising from the incident;
(iii) conduct or assist Cavedale in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
(iv) ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.
(a) Either Party may terminate this Agreement by notice in writing to the other if the other Party notified:
(i) fails to observe any term of this Agreement; and
(ii) 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.
(b) Either Party may terminate this Agreement immediately upon the happening of any of the following events:
(i) if the other Party commits a material breach of the agreement which is incapable of rectification;
(ii) if the Client 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 the Client pursuant to the Corporations Act; or
(iv) if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
(c) Upon termination of this agreement any fees, expenses or reimbursements payable by the Client to Cavedale in respect of any period prior to the Termination Date must be paid by the Client within 14 days after the Termination Date.
14. Dispute Resolution
(a) If a dispute arises out of or relates to this Agreement, or the breach, termination, validity or subject matter thereof, or as to any claim in tort, in equity or pursuant to any law, the parties to the Agreement and the dispute shall endeavour in good faith to settle the dispute by mediation before having recourse to arbitration or litigation.
(b) A party claiming that a dispute has arisen must give written notice to the other party or parties specifying the nature of the dispute (“Dispute Notice”).
(c) On receipt of the Dispute Notice, the parties shall within 7 days of receipt of the Dispute Notice convene (by electronic means if required) to resolve the dispute in good faith (without being required to make concessions against their interest or act uncommercially) with a view to resolving the dispute as quickly as possible.
(d) If the dispute is not resolved within 30 days or within such further period as the parties agree then the Parties shall refer the dispute to mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or failing agreement, within 7 days of the expiry of the Initial Period, by the Chairman of the Western Australian Chapter of the Resolution Institute (WA Branch).
(e) Subject to the rights of Parties under this Agreement, the Parties shall otherwise continue to perform their respective obligations under this Agreement pending the resolution of the dispute.
15.1 Force Majeure
(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
(c) 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.
(a) Subject to clauses 5, 8 and 15.3(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.
(b) 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.
15.4 Entire agreement
(a) This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
(b) 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.
(a) No failure or delay by Cavedale in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor will 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.
(b) The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
15.6 Agency, partnership etc
(a) This Agreement will 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.
(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
15.7 Further assurance
Each Party to this Agreement will 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 will, 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 will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
(a) Subject to clause 15.9(b), no Party will 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.
(b) No Party will 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.
15.11 Work, health and safety
Cavedale must comply with all relevant work, health, safety and welfare standards and regulations determined by the Client or as prescribed by legislation.
15.12 Law and jurisdiction
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Western Australia, Australia. The Parties irrevocably submit to the exclusive jurisdiction of the courts of Western Australia.