MILESTONE IT – Consultant Representation Agreement - www.mstone.com.au

WARNING: BY REGISTERING AS A CONSULTANT ON THIS WEBSITE, YOU ACKNOWLEDGE THAT YOU ARE SUBSCRIBING TO BECOME A MEMBER ON THIS WEBSITE AND THAT WE MAY PROVIDE YOUR RESUME, CONTACT DETAILS AND OTHER MEMBER DATA THAT YOU PROVIDE TO US, TO ANY EMPLOYER MEMBERS OF OUR WEBSITE. YOU MAY ONLY REGISTER ON THIS WEBSITE AS A CONSULTANT MEMBER IF YOU ACCEPT THE TERMS OF THIS CONSULTANT REPRESENTATION AGREEMENT. BY TICKING THE “I ACCEPT” CHECKBOX BELOW, AND EACH TIME YOU ACCESS YOUR ACCOUNT ON OUR WEBSITE, YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND AND WHOLLY AND UNCONDITIONALLY AGREE TO BE LEGALLY BOUND BY AND ACCEPT THE TERMS OF THIS CONSULTANT REPRESENTATION AGREEMENT. WE MAY MODIFY AND/OR REPLACE THE TERMS OF THIS CONSULTANT REPRESENTATION AGREEMENT FROM TIME TO TIME BY NOTICE TO YOU. WE WILL UPLOAD THE LATEST VERSION TO THIS WEBPAGE. IT IS YOUR RESPONSIBILITY TO CHECK THE TERMS OF THIS CONSULTANT REPRESENTATION AGREEMENT EACH TIME YOU ACCESS, USE OR BROWSE YOUR MEMBER ACCOUNT ON THIS WEBSITE TO ENSURE YOU HAVE READ AND UNDERSTAND THE LATEST VERSION. IF YOU DO NOT WISH TO ACCEPT THE TERMS OF THIS CONSULTANT REPRESENTATION AGREEMENT, YOU MUST NOT AND CANNOT REGISTER AS A CONSULTANT ON THIS WEBSITE.

TERMS AND CONDITIONS:

1. Interaction with Our General Terms of Use

   1. This Consultant Representation Agreement is to be read in conjunction with Our General Terms of Use. A copy of Our General Terms of Use is available at Terms of Use (“Our General Terms of Use”)

   2. Our General Terms of Use are incorporated by reference into this Agreement (including any interpretation provisions).

   3. Without limiting clause 1.2, Our General Terms of Use are interdependent and coterminous with this Agreement, such that if the contract formed with you under the General Terms of Use is terminated for any reason, this Agreement shall automatically and immediately terminate, and vice versa.

2. Definitions and Interpretation

   1. Definitions

      In this Agreement, the following words have the following meanings, unless expressly agreed otherwise and terms used in this Agreement that are defined in Our General Terms of Use have the meanings given to them in Our General Terms of Use.

      Agreement means this Consultant Representation Agreement.

      Commencement Date means the date that you register on this Website as a Consultant.

      Engagement Terms means written terms executed by You and Us under which We agree to engage You to provide Services to a Client on Our behalf, including hourly rate and any other commercial terms that You and Us agree to.

      Client means (a) a client company specified in the Engagement Terms; and (b) any company in respect of which You receive information from Us (including, via Our Website) regarding a potential engagement that involves: (i) the company engaging Us to provide Services that We may be able to procure You to provide on Our behalf to the company; and/or (ii) the company employing you directly.

      Confidential Information means as defined in clause 11.1.

      Fees means as set out in the Engagement Terms.

      Insolvency Event means: (a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency; (b) where the party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; (c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or (d) the party is unable to pay its debts as and when they fall due.

      Introduce means provide the name of any Client to You, or provide Your name or contact details to any Client.

      Payment Terms means as set out in the Engagement Terms.

      Personnel or personnel means employees, agents and subcontractors and including: (a) directors, employees and agents; (b) sub-contractors; and (c) sub-contractors’ directors, employees and agents.

      Services means as set out in the Engagement Terms.

      Term means the term of this Agreement referred to in clause 3.1.

3. Term of Agreement

   1. This Agreement shall commence on the date that You register as a Consultant on Our Website and shall continue until terminated in accordance with its terms.

4. Appointment of MILESTONE IT

   1. You appoint Us during the Term to:

      1. publish Your Member Data on Our Website in the manner set out in the Services Description (including, where applicable, anonymously);

      2. take any other steps that We may decide to take in Our absolute discretion to:

   2. Introduce You to any Client who may wish to engage Us to procure the provision to the Client of Your services on Our behalf;

   3. Introduce You to any Client who may wish to employ You (but not the business entity on behalf of which You may have registered on Our Website) on a full time basis.

5. Engagement of Consultant

   1. If:

      1. We Introduce You to any Client who informs Us that it wishes to engage Us to procure the provision to the Client of Your services on Our behalf, and We enter into an agreement with the Client to provide those services to the Client on Our behalf; and

      2. We agree with You on Engagement Terms pertaining to the engagement referred to in paragraph (a),

         We will be deemed to have engaged You as a contractor to perform the Services for the Client on Our behalf on the Engagement Terms and the terms of this Agreement. To the extent of any inconsistency between the terms of this Agreement and the Engagement Terms, the Engagement Terms will prevail.

   2. If:

      1. We Introduce You to any Client; and

      2. the Client employs you in any position,

         You irrevocably acknowledge and will, if requested by Us, confirm in writing to Us and to the Client, that You have been recruited to the Client by Us. If You fail to provide that confirmation within a reasonable time after We request You to do so, You appoint Us as Your attorney to do so on Your behalf.

6. Consultant’s Obligations as Employee of Client

   1. In the circumstances described in clause 5.2, You acknowledge that Your employment with the Client will be subject to an employment contract to be entered into between You and the Client and that the provisions of clauses 5.1, 7, 9, 10, 11, a and 15.2 of this Agreement will not apply in respect of those circumstances.

7. Consultant’s Obligations as contractor of MILESTONE IT

   1. For the avoidance of doubt, the provisions of this clause 7 shall apply where We engage You as a contractor in accordance with clause 5.1.

   2. You must, at Your sole cost and expense, provide all tools, equipment and other assets required to perform the Services, except where otherwise agreed by the parties.

   3. You and Your personnel may at any time provide any services to any third party, as long as Your and Your personnel’s provision of services to such third parties does not interfere with the provision of Services or obligations under this Agreement or the Engagement Terms.

   4. From the moment that We Introduce You to a Client, or Introduce a Client to You, during the Term and following termination of this Agreement for three (3) months, You agree, and will ensure that Your personnel agree, not to enter into any agreement with any such Client to perform the Services or any other services directly or indirectly, except pursuant to this Agreement and the Engagement Terms.

   5. You agree that if You breach the provisions of clause 7.4, You must pay us a fee of $14,500 plus GST within 7 days of demand by Us. You agree that the provisions of this clause 7.5 are not a penalty and are a reasonable estimate of the loss that We will incur as a result of Your breach of clause 7.4.

   6. You are independent of Us and must perform the Services without Our direct supervision, and in a manner deemed appropriate by You, subject to the provisions of this Agreement.

   7. You must:

      1. perform the Services with all skill, care and diligence and in accordance with all lawful instructions that We or the relevant Client give You;

      2. perform the Services lawfully;

      3. not incur any obligation on Our behalf except with Our prior written approval;

      4. report to and liaise with Us on a monthly basis;

      5. accurately and truthfully complete and submit to Us on a weekly basis a timesheet that You acknowledge may be provided by Us to the relevant Client for approval.

8. Personnel

   1. You are responsible for all of Your acts and omissions as well as the acts and omissions of Your personnel.

   2. You, not Us, employ Your personnel.

   3. You, not Us, are responsible for the payment of all monies and the provision of all benefits to Your personnel.

   4. Without limiting the foregoing provisions of this clause 8, You are liable for all wages, remuneration and other entitlements payable to Your personnel and for complying with the Income Tax Assessment Act 1936 (Cth), the Superannuation Guarantee Act 1992 (Cth) and any workers compensation legislation.

   5. You indemnify Us against all claims and all loss, damage, costs and expenses incurred by Us in respect of a claim or finding that We employ:

      1. You;

      2. Your subcontractors, employees, officers or agents;

      3. Your sub-contractors; or

      4. Your sub-contractors’ subcontractors, employees, officers or agents.

9. Fee

   1. We must pay You the Fees in accordance with the Engagement Terms.

   2. The Fees are exclusive of GST and We agree to pay You GST, in respect of any Supply (as that term is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) made by You under this Agreement (but only if applicable). We must pay the applicable GST, at the same time as the Fees.

   3. We may withhold payment of the Fees if the Services are not performed in accordance with this Agreement or the Engagement Terms.

10. Ownership of Intellectual Property

    1. You agree and acknowledge that this Agreement does not transfer or assign any Intellectual Property Rights to You.

    2. You hereby assign to the Client specified in the Engagement Terms all of Your Intellectual Property Rights in any documents, materials and records (including software) developed by You and Your personnel in the course of providing the Services under this Agreement and the Engagement Terms, as an assignment of future property pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity.

    3. As between the Client specified in the Engagement Terms and You, the Client owns all Intellectual Property Rights in any documents, materials and records (including software) developed by You or any of Your personnel in the course of performing the Services under this Agreement and the Engagement Terms as each part comes into existence.

    4. You must not use any of the documents, materials, information and/or records (including software) You obtain and/or develop in the course of providing the Services under this Agreement and the Engagement Terms except as strictly required to perform the Services under this Agreement and the Engagement Terms.

    5. You hereby acknowledge, for the avoidance of doubt, that during and after the Term, the Client specified in the Engagement Terms may alter and/or commercialise documents, materials and records (including software) developed by You or any of Your personnel in the course of performing the Services under this Agreement and the Engagement Terms, without restriction from You or Your personnel.

    6. You must not take any step to invalidate or prejudice any Clients’ Intellectual Property Rights. Without limiting the foregoing provisions, You must not register any security interest or purchase money security interest on the Personal Property Securities Register, or otherwise encumber or charge Your rights in respect of any documents, materials and/or records (including software) developed or obtained by You in the course of performing any Services under this Agreement and the Engagement Terms.

    7. You waive any Moral Rights in any documents, materials and records (including software) developed by You or any of Your personnel in the course of performing the Services under this Agreement and the Engagement Terms and consent to the relevant Client and any licensee of the relevant Client breaching any of those Moral Rights.

    8. You must ensure that each of Your personnel enter into an agreement with You prior to the Commencement Date which:

       1. waives all Moral Rights of each of the personnel in any documents, materials and records (including software) developed by any of them in the course of performing Your obligations under this Agreement and the Engagement Terms, and provides a consent to the infringement by the relevant Client and the relevant Client’s licensees of all and any such Moral Rights;

       2. assigns to the relevant Client all Intellectual Property Rights in any documents, materials and records (including software) developed by any such personnel in the course of performing Your obligations under this Agreement and the Engagement Terms for the Client specified in the Engagement Terms, as an assignment of future property pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity.

11. Confidentiality

    1. You agree and acknowledge that You and Your personnel may receive Our confidential information during the Term of this Agreement, including aspects of this Agreement and the Engagement Terms such as rates and details of commercial dealings and undertakings, as well as confidential information of Clients (“Confidential Information”).

    2. You agree and acknowledge that the Confidential Information of Clients includes information regarding Clients’ organisations, activities and systems under development, business operations and systems, the Services performed or required to be performed by Clients as well as confidential information of Clients’ customers.

    3. You agree and acknowledge that Our Confidential Information and that of Clients will be received and held by You and Your personnel in strict confidence and will not be disclosed except:

       1. with Our prior written consent;

       2. where disclosed to Your employees, agents or professional advisors on a confidential need-to-know basis; or

       3. as required by a court of competent jurisdiction, and then, only to the extent required, and provided that You must promptly notify Us of such requirement of disclosure and provide full particulars to Us of the disclosure and cooperate with Us to lawfully withhold any Confidential Information from disclosure (if permissible by law).

    4. Confidential Information does not include any information:

       1. that is independently developed, obtained or known by a party, without any obligation of confidence to the other party; or

       2. that is in the public domain, except where due to a breach of this Agreement and/or the Engagement Terms or any breach of any obligation of confidence.

    5. You agree and acknowledge that any documents, materials and records (including software) developed by You or Your personnel during the course of performing the Services under this Agreement and the Engagement Terms constitutes and contains Clients’ Confidential Information and trade secrets.

    6. Without limiting the foregoing, You agree and acknowledge that Our Confidential Information is not to be disclosed to any third party, including to Our clients, otherwise than in accordance with clause 11.3. Without limiting clause 14, You agree to accept liability and indemnify Us in relation to any unauthorised disclosure of Our Confidential Information.

    7. If Our clients request that You and/or Your personnel enter into a confidentiality agreement, You agree to enter into such agreement and will ensure that Your personnel do likewise.

    8. You must provide to Us any of Our and any Clients’ Confidential Information, and any notes and copies thereof in Your possession and/or control, if requested by Us, unless doing so would constitute a breach of any confidentiality agreement referred to in clause 11.7 or any other obligation of confidence.

12. Termination

    1. We may terminate this Agreement:

       1. if You or Your personnel are in breach (including non-observance or non-performance of the Services) of this Agreement or any Engagement Terms;

       2. if a Client terminates Our agreement with it under which We had agreed to provide Services to the Client and which services We had subcontracted to You under this Agreement and the Engagement Terms; or

       3. for convenience at any time on 30 days’ written notice.

    2. In the event that a Client notifies Us that it is not satisfied with Your or Your personnel’s performance, we may terminate this Agreement by written notice to You.

    3. In the event that a Client notifies Us of any:

       1. non-performance of the Services; or

       2. incident of illegal or professional misconduct,

          by You or Your personnel, We may terminate this Agreement by written notice to You.

    4. We may terminate this Agreement by written notice to You if:

       1. You or Your Personnel are found guilty of any misconduct by Us or a Client in relation to the provision of the Services; or

       2. You or Your personnel suffer an Insolvency Event.

    5. You may terminate this Agreement if:

       1. We do not pay the Fees to You in accordance with the Payment Terms and You issue a notice to Us requiring payment pursuant to this clause 12.5 and We still do not pay you the Fees within 30 days of Our receipt of the notice; or

       2. We suffer an Insolvency Event.

    6. If this Agreement is terminated You must at Our option and as directed by Us, destroy or return all of Our and any Clients’ Confidential Information that You and Your personnel have in their possession and/or control.

13. Restraint

    1. Without limiting clause 7 of this Agreement, during the Term and for a period of 12 months after termination of this Agreement, You agree that You will not, and will ensure that Your personnel who took part in the provision of the Services will not, except where specified to the contrary in the Engagement Terms:

       1. accept employment with a Client in any capacity, whether as employee or consultant;

       2. canvass, solicit or endeavour to entice away from Us any person or organisation that was Our client at the date of the termination and, in relation to whom, You or Your personnel engaged in the provision of the Services dealt with during operation of this Agreement;

       3. counsel or induce any other person to perform any of the acts specified in paragraphs (a) or (b).

    2. You acknowledge that any breach by You of clause 13.1 will cause irreparable harm and significant damage to Us and, accordingly, that, without limitation to Our rights, We have the right to seek and obtain immediate injunctive relief from a court in relation to any such breach or threatened breach. You will ensure that Your personnel make the same acknowledgements prior to performing the Services.

    3. You acknowledge that the covenants contained in clause 13.1 are fair and reasonable and that We are relying upon this acknowledgement in entering into this Agreement. You will ensure that Your personnel will make the same acknowledgement.

    4. In the event that a Court determines that the period of time identified in clause 13.1 is unreasonable, then the period may be read down to a period of no less than 9 months from the termination of this Agreement.

    5. In the event that a Court determines that the periods of time identified in clauses 13.1 and 13.4 are unreasonable, then the period may be read down to a period of no less than 6 months from the termination of this Agreement.

    6. In the event that a Court determines that the periods of time identified in clauses 13.1, 13.4 and 13.5 are unreasonable, then the period may be read down to a period of no less than 3 months from the termination of this Agreement.

14. No liability

    1. We are not liable in any way to You or Your personnel in relation to any loss of income or other loss, costs, expenses or damages incurred by You or Your personnel in the event that Our client takes steps to cease Your or Your personnel’s provision of the Services, and You hereby release Us from all or any claims that You might otherwise have against Us in respect of all or any such matters.

15. Indemnity

    1. You indemnify Us in respect of all and any claims, costs, expenses, actions, suits, loss or damage of any kind that We may incur as a result of:

       1. any breach by You and/or Your personnel of this Agreement and/or any Engagement Terms; and/or

       2. the performance or non-performance by You and/or Your personnel of the Services.

    2. In the event that You provide incorrect banking details to Us, You shall take full responsibility for and indemnify Us in relation to the recovery of funds and any outstanding monies paid electronically by Us to You.

16. Dispute Resolution

    1. If a dispute arises out of, or in any way in connection with, or otherwise relates to this Agreement, or the breach, termination, validity or subject matter hereof, or as to any related claim at law, in equity or pursuant to any statute, the parties agree to refer their dispute to Mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.

    2. The Mediation shall be conducted in Melbourne and shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the dispute is referred to ACDC and which terms are hereby deemed incorporated into this Agreement.

    3. The costs of the mediator shall be shared equally between the parties.

    4. Nothing in this clause shall limit either party’s right to seek urgent interlocutory relief from any court of competent jurisdiction at any time.