Services Agreement

for services provided by

Prior Education Australia Pty Ltd
(ABN 80 065 022 853)

Operative provisions

1. DEFINITIONS

1.1 Definitions and interpretation

1.1.1 The following definitions apply in this agreement unless the context requires otherwise:

Approvals means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Governmental Agency to permit the full and proper performance of the Consultant’s obligations under this agreement.

Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

Charges means Fees and Expenses.

Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise.

Client means the party that will receive the Services as named in the Quote.

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

any information that is specifically designated by any of them as confidential;

any information which, by its nature, may reasonably be regarded as confidential;

any information relating to any:

• agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
• customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
• Intellectual Property Rights,

of any of them; and

any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;

negotiations in relation to, and the terms of, this agreement,

whether that information is visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Company or any Related Entity of the Company including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.

Corporations Act means the Corporations Act 2001 (Cth).

Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.

Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.

Expenses means expenses incurred by the Company in providing the Services, as agreed with the Client and set out in the Quote.

Fees means the fees payable by the Client to the Company for the provision of the Services, as set out in the Quote.

Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority, including any self-regulatory organisation established under statute.

Insolvency Event means, in relation to a party, any of the following events:

• the party ceases, or takes steps to cease, to conduct its business in the normal manner;
• the party enters into or takes steps to enter into any arrangement or composition with any class of its creditors;
• a liquidator or provisional liquidator is appointed to the party or a receiver, receiver and manager, trustee or similar official is appointed over any of the assets or undertakings of the party;
• an application or order is made, resolution passed or proposed in a notice of meeting or any other action is taken to cause anything described above; or
• the party is or becomes insolvent or is presumed to be insolvent under any applicable law.

Intellectual Property Rights means any intellectual or industrial property rights throughout the world, whether subsisting now or in the future, including rights in respect of, or in connection with:

• any confidential information, copyright, trademarks, service marks, designs, patents, trade secrets, know-how, business or domain names, inventions and circuit layouts; and
• any application or right to apply for registration of any of those rights, and includes all renewals and extensions.

Loss means all losses, costs, expenses, damages and liabilities (including legal costs and disbursements on a full indemnity basis).

Quote means the document titled ‘Quote’ (or other similar title) issued by the Company which is accepted by the Client and sets out the Fees and any other relevant terms.

Related Entity has the meaning given to that term in the Corporations Act.

Representative of a party includes an officer, employee, agent, contractor, legal or other adviser, auditor, partner, consultant, joint venturer or sub-contractor of that party or any Related Entity of that party.

Services means the services to be provided by the Company as described in the Quote and/or Schedule 1 and as modified in accordance with this agreement.

Term has the meaning given in clause 2.1.

Interpretation

1.1.2 In this agreement:

• Headings are for convenience only and do not affect interpretation.
• The singular includes the plural and vice versa.
• A reference to a clause or schedule is a reference to a clause of or schedule to this agreement.
• A reference to a party includes its successors and permitted assigns.
• A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity.
• If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

2. ENGAGEMENT AS COMPANY

2.1 Term

This agreement will commence on the date the Quote is accepted by the Client and will continue unless terminated earlier in accordance with clause 10 (Term).

2.2 Company’s obligations

The Company agrees to provide the Services during the Term in accordance with the terms of this agreement.

2.3 Client’s obligations

The Client agrees to cooperate with the Company as reasonably required to allow the Company to provide the Services.

3. PROVISION OF THE SERVICES

3.1 Modification of Services

The Client may request reasonable modifications to the Services by providing written notice to the Company. The Company will use reasonable efforts to accommodate such modifications, and if agreed, the parties will update the Quote and/or this agreement as necessary.

3.2 Standard of Services

The Company must perform the Services:

• in accordance with all applicable laws, regulations, and industry standards;
• with due care and skill; and
• in accordance with the standard duties and obligations in Schedule 1.

4. PRICING AND INVOICING

4.1 Fees

The Client must pay the Company the Fees as set out in the Quote, subject to the terms of this agreement.

4.2 Expenses

The Client must reimburse the Company for all reasonable Expenses incurred in the course of providing the Services, provided such Expenses are set out in the Quote or otherwise approved in writing by the Client in advance.

4.3 Invoicing

Unless otherwise stated in the Quote:

• the Company will issue invoices for the Charges at the times specified in the Quote, or otherwise monthly in arrears;
• each invoice must include sufficient detail to allow the Client to assess the Charges incurred;
• the Client must pay all invoices within 7 days of receipt, unless otherwise agreed in writing.

5. PAYMENT

5.1 Payment methods

Payments must be made in Australian dollars by electronic funds transfer to the account nominated by the Company or by any other method agreed in writing by the parties.

5.2 Late payment

If the Client does not pay any amount payable under this agreement on the due date, without limiting any other rights the Company may have:

• the Company may charge the Client interest on the overdue amount at the rate of 10% per annum, calculated daily and compounding monthly; and
• the Company may suspend the provision of the Services until payment is received in full.

5.3 Disputed amounts

If the Client disputes an invoice, the Client must notify the Company in writing within 5 Business Days of receipt of the invoice, providing full details of the dispute. The Client must still pay any undisputed portion of the invoice.

6. GST

6.1 Definitions

In this clause 6:

• GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
• Taxable Supply has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

6.2 GST exclusive

Unless expressly stated otherwise, all amounts payable under this agreement are exclusive of GST.

6.3 GST payable

If a party makes a Taxable Supply under this agreement, the other party must pay an additional amount equal to the applicable GST at the same time as the payment for the Taxable Supply is due.

7. CONFIDENTIALITY

7.1 Confidentiality obligations

Each party must:

• keep the Confidential Information of the other party confidential;
• not use or reproduce the Confidential Information of the other party for any purpose other than to perform its obligations or exercise its rights under this agreement; and
• not disclose the Confidential Information of the other party except in accordance with this clause 7.

7.2 Permitted disclosures

A Disclosee may disclose Confidential Information of a Discloser:

• to its Authorised Third Party Disclosees, provided that the Disclosee ensures that such persons comply with the terms of this agreement as if they were bound by them; and
• if required to do so by law or a Governmental Agency, provided that (to the extent permitted by law) it gives the Discloser reasonable notice to enable the Discloser to seek a protective order or other remedy.

7.3 Return or destruction of Confidential Information

Upon termination of this agreement, or upon request by the Discloser, the Disclosee must promptly return or destroy all documents and other materials containing Confidential Information of the Discloser and certify such destruction in writing (if requested), except to the extent the Disclosee is required by law to retain any such information.

7.4 Injunctive relief

Each party acknowledges that damages may not be an adequate remedy for a breach of this clause 7 and that the Discloser may seek injunctive relief in the event of any such breach or threatened breach.

8. NON-DISPARAGEMENT

Each party agrees that it will not make, and will ensure that its Representatives do not make, any disparaging or defamatory statements (whether orally or in writing) about the other party or its personnel, business or services, whether during or after the Term.

9. LIABILITY, INDEMNITY AND REMEDIES

9.1 Exclusion of warranties

To the extent permitted by law, all express or implied representations, warranties, guarantees or other provisions that are not contained in this agreement are excluded, including any implied warranties of merchantability and fitness for a particular purpose.

9.2 Limitation of liability

To the extent permitted by law, the Company’s liability for all Claims arising under or in connection with this agreement, whether in contract, tort (including negligence) or otherwise, will be limited to the amount of Fees paid by the Client under this agreement.

9.3 Consequential loss

The Company is not liable for any loss of profit, loss of revenue, loss of data, or any indirect, special or consequential loss or damage incurred by the Client in connection with this agreement.

9.4 Indemnity

The Client indemnifies the Company from and against all Loss arising out of or in connection with:

• any breach of this agreement by the Client; or
• any unlawful or negligent act or omission of the Client or its Representatives.

10. TERMINATION

10.1 Termination by either party

Either party may terminate this agreement by giving the other party 7 days’ written notice.

10.2 Termination for breach

Either party may terminate this agreement immediately by written notice if the other party:

• breaches this agreement and fails to remedy the breach within 7 days of receiving notice to do so; or
• experiences an Insolvency Event.

10.3 Effect of termination

Upon termination:

• the Client must pay the Company for all Services provided and Expenses incurred up to the date of termination;
• each party must return or destroy the other party’s Confidential Information in accordance with clause 7.3;
• any accrued rights or remedies of the parties will not be affected.

11. NOTICES

11.1 Form

Any notice or communication given under this agreement must be in writing and addressed to the recipient at the address or email set out in the Quote or as otherwise notified by the recipient from time to time.

11.2 Delivery

A notice is taken to be received:

• if delivered personally, at the time of delivery;
• if sent by post, 3 Business Days after posting; and
• if sent by email, when sent (unless the sender is notified that the email was not successfully transmitted).

12. GENERAL

12.1 Entire agreement

This agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous agreements or understandings.

12.2 Amendment

This agreement may only be amended by a document signed by both parties.

12.3 Assignment

Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

12.4 Severance

If any provision of this agreement is held to be invalid or unenforceable, it will be severed from the agreement and the remainder will remain in full force and effect.

12.5 Waiver

No waiver of any provision of this agreement will be effective unless in writing and signed by the party granting the waiver. A waiver will only apply to the specific instance and purpose for which it is given.

12.6 Governing law and jurisdiction

This agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.

SCHEDULE 1 – STANDARD DUTIES AND OBLIGATIONS

1. Communication

The Client agrees to be open and honest with the Company, respond to requests in a timely manner, and proactively raise any issues or concerns.

2. Availability

The Client agrees to be available for meetings, coaching sessions or check-ins as reasonably required to support the delivery of the Services.

3. Implementation

The Client acknowledges that the effectiveness of the Services depends on the Client’s commitment to implementing strategies and taking action outside of scheduled sessions.