SERVICES AGREEMENT
AGREEMENT BETWEEN: Joy Townsend Pty Ltd ACN 651 104 362
trading as ‘Learning Consent’
Office 2.03, 92 Princes Highway, Milton NSW 2538
(Learning Consent)
AND: Shore School, Sydney Church of England Grammar School
ABN 60 352 822 184
of Blue Street, North Sydney, NSW, 2060
(Client)
Reference Schedule:
Item 1 – Services
In accordance with the attached Program of Work
Item 2 – Services Date
30/4/2024 - 6/12/2024
Item 3a – Service Fees
Stage one: $54 400 (plus GST)
Stage two: $51 100 (plus GST)
Stage three: $15 200 (plus GST)
2024 total program cost: $120 700.00 (plus GST)
Item 4 – Payment Date
Stage one- May 3, 2024
Stage two- July 26, 2024
Stage three – October 18, 2024
Item 5 – Term
Means the period commencing on the Agreement Date and expiring on 6 December 2024
Background:
A. In consideration of the Client paying the Fees to Learning Consent, Learning Consent has agreed to provide the Services to the Client.
B. The Client wishes to appoint Learning Consent, and Learning Consent is willing to accept such appointment on the terms and conditions set out in this Agreement.
C. Learning Consent will provide the Services to the Client on the Services Date.
OPERATIVE PART
1. Definitions
1.1 The meanings of the terms used in this document are as follows:
(a) Agreement means this agreement, as validly varied from time to time;
(b) Agreement Date means the date this Agreement is signed by the Client
(c) Booking means a booking for the Services made by the Client, in any method determined by Learning Consent from time-to-time;
(d) Cancellation Fee means a portion of the Fees, as determined by Learning Consent (and which may be the entire remaining Fees);
(e) Client’s Related Parties means the parties who will also be involved in the receipt of the Services at the request of the Client, and includes (but is not limited to) the Client’s employees, students, parents and carers, contractors or agents, details of whom are to be provided to Learning Consent as and when required by Learning Consent in accordance with this Agreement;
(f) Confidential Information includes but is not limited to any information marked as confidential and any information (including presentations, resources, handouts etc.) received by the Client in the provision of the Services by Learning Consent, and specifically includes the existence of this Agreement and any contents of it;
(g) Default Interest Rate means 5% per annum;
(h) Deposit means any amount specified in the attached Program of Work, or in the absence of a Program of Work an amount equal to 50% of the Fees payable in accordance with this Agreement;
(i) Extended Term means any extension to the Term as mutually agreed between the parties to this Agreement in writing;
(j) Fees means the fees specified in Item 3 of the Reference Schedule;
(k) Location means the venue and/or location at which the Services are being provided;
(l) Payment Date means the date or dates specified in Item 4 of the Reference Schedule;
(m) Personnel means Learning Consent’s employees, contractors or agents;
(n) Services means the services outlined in Item 1 of the Reference Schedule;
(o) Services Date means the date or dates specified in Item 2 of the Reference Schedule; and
(p) Term means the timeframe specified in Item 5 of the Reference Schedule.
2. Provision of the Services
2.1 Learning Consent agrees to provide the Services to the Client in accordance with the terms and conditions of this Agreement, subject to the Client having provided Learning Consent with all required information and/or documentation required by Learning Consent in order to provide the Services.
2.2 The parties may agree to the Services being provided on alternate or additional Services Date, provided such agreement is made between the parties in writing.
2.3 Learning Consent will be available to provide the Services at the times advised by Learning Consent and agreed to by the Client (with both parties to act reasonably in agreeing to mutually-acceptable times).
2.4 The scope of the Services is strictly limited to those services described in Item 2 of the Reference Schedule, unless otherwise agreed between the parties in writing from time to time.
2.5 Provided that the Client complies with their obligations under this Agreement, Learning Consent agrees to use all reasonable endeavours to provide the Services on the Services Date and comply with any relevant timeframes that have been agreed between the parties.
2.6 Learning Consent warrants that they will provide the Services using due care and skill, as expected from a comparable service provider.
2.7 Any specific terms and requirements which may affect Learning Consent’s delivery of the Services to the Client and/or the Client’s Related Parties must be communicated by the Client to Learning Consent in writing prior to Learning Consent delivering the Services to the Client, including but not limited to details and information in relation to the Client’s Related Parties as requested by Learning Consent from time-to-time.
2.8 The Client acknowledges and agrees that the Services will be provided by Learning Consent in the format determined by Learning Consent from time-to-time (including but not limited to, in person and/or using online or virtual means).
2.9 The Services are strictly non-transferrable and Learning Consent will not provide the Services for the benefit of anyone other than the Client or the Client’s Related Parties, in accordance with this Agreement.
2.10 Further to clause 2.9, the Client is prohibited from contacting or dealing with any Personnel directly for the provision of any services which are of the same or a similar nature to the Services for a period of twenty-four (24) months after expiration or termination of this Agreement. This clause survives the expiration or termination of this Agreement.
2.11 The Client will promptly provide all reasonable information required by Learning Consent (including, but not limited to, notes from client appointments and meetings, relevant passwords, logins and any necessary instructions to allow remote access to the Client’s server) (the Client Information) in order to allow Learning Consent to provide the Services by the Services Date.
2.12 The Client acknowledges and agrees that if they delay, or fail to, supply Learning Consent with the Client Information, then Learning Consent may be unable to perform the Services by the Services Date or at all. Learning Consent will not be liable for any delay in the provision of Services caused by the Client’s failure to comply with the obligations contained in this clause.
2.13 If any person makes any claim alleging that the Client Information or any use of it by Learning Consent in accordance with this Agreement, infringes any intellectual property right or any other right of any person, the Client must indemnify and hold harmless Learning Consent from and against any such claim and from and against any loss (including legal fees on an indemnity basis) arising in connection with such claim/s.
2.14 Learning Consent will provide the Services to the Client during the Term on the Services Date/s.
2.15 The parties may agree to the continuance of this Agreement for an Extended Term. Any Extended Term must be agreed between the parties in writing.
3. Fees and Booking
3.1 In consideration of Learning Consent providing the Services, the Client must pay all Fees, including the Deposit, on or before the Payment Date in the manner and method as determined by Learning Consent from time-to-time.
3.2 Learning Consent may, in their discretion, require payment of the Fees or the Deposit upfront, prior to providing the Services to the Client.
3.3 Learning Consent will issue the Client with a tax invoice for the Fees, prior to any Payment Date and the Client will be required to make payment of those tax invoices within fourteen (14) days of the date of the tax invoice.
3.4 The Client will be required to pay the Fee to Learning Consent, regardless of whether any of the Client’s Related Parties are unable to attend all or part of the Services on the Services Date or otherwise access the Services at any stage.
3.5 Any disbursements (including fees, charges, costs, travel, accommodation etc.) incurred as a result of Learning Consentproviding the Services to the Client are included in the Fees.
3.6 In the event that the Client fails to pay any tax invoice within the specified timeframe, Learning Consent may:
(1) charge the Client late payment fees, the Cancellation Fee or the Deposit as determined by Learning Consent in their sole discretion;
(2) charge the Client interest at the Default Interest Rate on any outstanding amount;
(3) immediately cease providing the Services to the Client and/or the Client’s Related Parties;
(4) terminate this Agreement immediately without notice; and/or
(5) commence proceedings against the Client in order to collect any outstanding debts owed to Learning Consent.
3.7 In respect of any taxable supply made under this Agreement, the Client must pay to Learning Consent an amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Client of a valid tax invoice.
3.8 In the event that the Client wishes to cancel the Services before a Services Date, they must notify Learning Consent in writing immediately. The Client acknowledges and agrees that Learning Consent may impose the Cancellation Fee or retain the Deposit (in Learning Consent’s sole discretion) for any cancellation, and that the amount payable in this regard is a genuine pre-estimate of the loss which Learning Consent will suffer as a result of the Client’s cancellation.
3.9 In the event that the Client wishes to make changes to the Services, they must notify Learning Consent in writing immediately and Learning Consent may or may not be in a position to accommodate the changes. In circumstances where Learning Consent can accommodate changes to the Services, Learning Consent may charge the Client additional fees.
3.10 In the event that Learning Consent needs to cancel the Services, Learning Consent will provide the Client with reasonable notice and if the Services cannot be rescheduled to be provided at another time, Learning Consent will provide a full refund of any Fees paid by the Client to Learning Consent, and this will be the Client’s only remedy should Learning Consent cancel the Services.
4. Client Acknowledgements and Obligations
4.1 The Client acknowledges and agrees that:
(1) they will obtain the consent of all of the Client’s Related Parties (including parents and/or guardians of minors, where applicable) to the Services being provided by Learning Consent to the Client’s Related Parties, and such consent is deemed to have been received by the Client, unless otherwise communicated by the Client to Learning Consent;
(2) if any of the Client’s Related Parties are a minor (as per the age of majority in the jurisdiction in which they reside) (Minor), the Client is responsible and liable for the Minor’s use of the Services and for ensuring that the Minor complies with all provisions of this Agreement, as if they were named as the Client in it;
(3) the Client will provide all relevant documentation and information required for Learning Consent to provide the Services to the Client in a timely manner;
(4) if they delay, or fail to, supply Learning Consent with any information requested, then Learning Consent may be unable to perform the Services in the agreed timeframe or at all;
(5) they will be solely responsible for taking all steps to allocate to the Client or the Client’s Related Parties any available professional development accreditation that may be gained from the Services provided;
(6) if the Client nominates a Location for the services and Learning Consent agrees to that Location, the Client will, prior to the Services Date:
(a) make all reasonable enquiries and take reasonable measures to ensure that the Location is a safe and stable environment for Learning Consent and/or Learning Consent’s Personnel;
(b) if there is anything at the Location that the Client believes may pose a risk to Learning Consent and/or Learning Consent’s Personnel, notify Learning Consent prior to Learning Consent and/or Learning Consent’s Personnel attending the Location;
(c) hold all applicable insurances, including but not limited to public liability insurance (with minimum coverage of at least $20 million per occurrence) and will provide proof of same to Learning Consent as and when requested;
(7) they are responsible for all of their own and the Client’s Related Parties’ personal property and/or belongings at the Location and that Learning Consent will not be responsible for any loss or damage of any such personal property;
(8) they will, and the Client’s Related Parties are required to, cooperate with Learning Consent and follow all reasonable directions of Learning Consent whilst Learning Consent is providing the Services;
(9) they will act with the utmost good faith in all dealings with Learning Consent and Learning Consent’s Personnel;
(10) Learning Consent will provide the Services based solely on information provided by the Client and in accordance with the terms and conditions of this Agreement;
(11) any behaviour that is inappropriate such as verbal or physical abuse will not be tolerated, and Learning Consent may cancel the services and charge the Cancellation Fee if Learning Consent deems the behaviour of any person to be inappropriate or unacceptable;
(12) if the Client becomes aware of anything that may affect the Client’s ability and/or the Client’s Related Parties’ ability to receive the Services or Learning Consent’s ability to provide the Services to the Client and/or the Client’s Related Parties, the Client must notify Learning Consent in writing and following such notification, Learning Consent will notify the Client of the new or varied terms (if any) of this Agreement. Such variations can then be accepted by the Client by:
(d) signing a new Agreement (if Learning Consent submits a new Agreement to the Client for signing); or
(e) otherwise in writing provided to Learning Consent; or
(f) by continuing to instruct Learning Consent (including failing to immediately withdraw their instructions to Learning Consent);
and any variation will always be subject to these Terms.
(13) any terms and conditions relating to a Third Party Payment Arrangement do not form part of the terms and conditions of this Agreement, and any Third Party Payment Arrangement creates a separate contract between the Client and the Third Party Payment Provider to which Learning Consent is not a party. Learning Consent cannot be held liable for any loss or damage suffered by the Client or any other party that arises directly or indirectly as a result of any Third Party Payment Arrangement entered into by the Client in connection with payment of Fees.
(14) the Services are in no way intended to be, nor should be construed to be, medical advice, nor a substitute for medical advice; and
(15) Learning Consent does not act as a crisis service and does not provide medical care, and it is the sole responsibility of the Client and/or the Client’s Related Parties to seek appropriate medical care should they feel unwell (mentally or physically), unsafe or require medical care for any other reason during the provision of the Services.
5. Photos and Videos
5.1 The Client acknowledges and agrees that Learning Consent may, during the provision of Services, take images or videos of the Client and/or the Client’s Related Parties and/or other persons (the Photos and Videos).
5.2 Learning Consent may not use the Photos and Videos for any marketing or promotional purposes on Learning Consent’s website and/or social media pages, unless the Client has specifically notified Learning Consent at the time of entering into this Agreement that the Client and/or the Client’s Related Parties consent to the use of the Photos and Videos.
5.3 The Photos and Videos may from time-to-time include children, however, Learning Consent will only use Photos and Videos which may identify a child and/or student with the Client’s prior consent.
5.4 Learning Consent and Learning Consent’s Personnel warrant that they will at all times during the provision of the Services hold a valid and current Working with Children Check (or similar qualification).
6. Intellectual Property
6.1 The Client acknowledge that all trademarks, patents, copyright, processes, know-how, registered designs or other like rights or any right to apply for registration of any of the former (the Intellectual Property) that are in any way connected with the Services and/or this Agreement are owned by Learning Consent.
6.2 The Client acknowledges that existing and future rights in any Intellectual Property created pursuant to, or in any way connected with, this Agreement, will vest in Learning Consent.
6.3 Learning Consent grants to the Client a non-exclusive licence to use the Intellectual Property in the form provided by Learning Consent solely for the purpose for which Learning Consent has provided it and Learning Consent can revoke any non-exclusive licence referred to in this clause at any time, at their sole discretion.
6.4 For the avoidance of doubt, the Client will be required to take all reasonable steps to ensure that the Client’s Related Parties also strictly adhere to the obligations outlined in clauses 6.1 and 6.2 and the Client will be solely responsible for any of the Client’s Related Parties that breach clauses 6.1 and 6.2.
6.5 Clauses 6.1, 6.2 and 6.3 survive termination or expiry of this Agreement.
7. Confidential Information
7.1 Depending on the scope of the Services, Learning Consent may require the Client to, and the Client hereby agrees, to execute a non-disclosure agreement.
7.2 The Client acknowledges that the Confidential Information shall at all times be and remain the property of Learning Consent and must not be disclosed to any third party at any time, except:
(1) with the prior consent of Learning Consent; or
(2) where the Client is required by statute, rule, regulation, judicial process or in connection with any litigation to which it is a party.
7.3 The Client must not reproduce or use any Confidential Information or any part of the Services for purposes which are inconsistent with the scope of the Services or which may be detrimental to Learning Consent in any way.
7.4 For the avoidance of doubt, the Client will be required to take all reasonable steps to ensure that the Client’s Related Parties also strictly adhere to the obligations outlined in clauses 7.1 and 7.27.2 and the Client will be solely responsible for any of the Client’s Related Parties that breach clauses 7.1 and 7.2.
7.5 Clauses 7.1, 7.2 and 7.3 survive termination or expiry of this Agreement.
8. Publicity and Confidentiality
8.1 Subject to this clause 8, neither Learning Consent nor the Client will make a public announcement relating to this Agreement without the prior consent of the other party, such consent may be withheld without reason.
8.2 Either Learning Consent or the Client may make a public announcement relating to this Agreement only if they are required to do so by law, an order of a court of competent jurisdiction or by any stock exchange rules.
9. Compliance with Privacy Laws
9.1 Learning Consent agrees to take all reasonable steps required to protect personal information in Learning Consent’s possession or control against misuse, interference, loss and unauthorised use, access, modification or disclosure.
9.2 Learning Consent warrants that Learning Consent complies with privacy laws in relation to the use, storage, transfer and other dealings with personal information obtained pursuant to or in any way connected with this Agreement.
10. Licensing
10.1 Upon completion of the Services and subject to any other agreement to the contrary, in exchange for payment of the Licence Fee, Learning Consent grants the Client a revocable, non-exclusive, non-transferable, limited license to use and operate the Services strictly in accordance with the purposes for which Learning Consent agreed to provide them to the Client.
10.2 The Licence Fee will be charged annually, on a ‘per student’ basis for each year the Services are licenced to the Client.
10.3 The Client acknowledges and agrees that they are not permitted to license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise dispose of the Services.
10.4 The Client further acknowledges and agrees that any modification, amendment or change which the Client makes to the Services may impact on the operation of those Services, and the Client releases Learning Consent from any clam, loss, damage or liability which arises in relation to the Services in connection with any modification, amendment or change which the Client makes.
11. Liability and Indemnity
11.1 The following limitations of liability apply:
(1) the Client acknowledges and agrees that Learning Consent will not be liable to the Client, the Client’s Related Parties and/or any other persons for:
(a) the actions or behaviour of any other person present in the provision of Services, specifically including that of the Client’s Related Parties; and/or
(b) any loss or damage of any kind that is directly or indirectly caused by or results from the Services, this Agreement or the matters to which it relates or are in any way connected to it; and/or
(c) any direct, incidental, special or consequential damages, including loss or profits or anticipated profits, even if notified of the possibility of that potential loss or damage,
to the extent that it is not directly caused by Learning Consent’s wilful or negligent act or omission;
(2) the Client releases Learning Consent from any liability or claims including, but not limited to:
(a) any personal injury, illness or death caused to the Client, the Client’s Related Parties and/or any other persons;
(b) any breach of Learning Consent’s obligations; and
(c) any technical, IT or issues of the like relating to the Services, in particular for any period following the transfer of lesson files and/or SCORM files by Learning Consent to the Client as part of the Client’s ongoing licence of the Services;
to the extent that any liability or claim is not directly caused by Learning Consent’s wilful or negligent act or omission.
11.2 The Client acknowledges and agrees that this Agreement’s limitations of liability in clause 11.1 are essential to Learning Consentand Learning Consent would not have entered into this Agreement in their absence.
11.3 The Client indemnifies Learning Consent for:
(1) all losses and expenses Learning Consent incurs (including legal costs on an indemnity basis); and
(2) all liabilities Learning Consent incurs;
directly or indirectly caused by, or resulting from any breach of this Agreement or from any wrongful, wilful or negligent act or omission by the Client.
11.4 Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law.
11.5 Learning Consent’s total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
11.6 While Learning Consent takes all reasonable steps to ensure that all Personnel meet the necessary requirements which allow them to perform the Services to a high standard and are generally of good fame and character, Learning Consent is not liable for any false or misleading information provided by any Personnel.
11.7 This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, guarantees, conditions or obligations. If such legislation applies, to the extent possible, Learning Consentlimits its liability in respect of any claim to the Fees.
12. Default and Termination
12.1 Learning Consent may terminate this Agreement immediately by written notice to the Client if any of the following events has occurred:
(1) Learning Consent ceases to offer the Services;
(2) Learning Consent believes the professional relationship between Learning Consent and the Client and/or the Client’s Related Parties has broken down beyond repair;
(3) Learning consent reasonably believes that the Client does not follow our advice, recommendations or the teachings provided;
(4) Learning Consent reasonably believes that the Services are not achieving (or likely will not achieve) the purpose for which they are intended;
(5) the Client breaches any term of this Agreement, and the Client fails to rectify the breach within fourteen (14) days of receiving notice from Learning Consent; or
(6) the Client is subject to an insolvency event.
12.2 The Client may terminate this Agreement by written notice to Learning Consent if any of the following events has occurred:
(1) Learning Consent has committed a material breach of this Agreement which is not remediable or if capable of remedy, where Learning Consent fails to remedy within 14 days of written notice; or
(2) Learning Consent is subject to an insolvency event, other than an internal reconstruction with notice to the Client.
12.3 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(1) the parties are immediately released from their obligations under the Agreement except those obligations that, by their nature, survive termination;
(2) each party retains the claims it has against the other;
(3) the Client must immediately pay all outstanding Fees to Learning Consent without off-set (including any off-set for any alleged claim); and
(4) Learning Consent must return to the Client any original Photos or Videos that have been supplied by the Client, and Learning Consent will immediately destroy any copies they have in their possession (including any digital copies).
13. General Provisions
13.1 Learning Consent may appoint sub-contractors or agents to perform any Services under this Agreement, in their sole discretion.
13.2 The Client must not assign or otherwise deal in any other way with any of its rights or obligations under this Agreement without Learning Consent’s prior consent.
13.3 Nothing contained in this Agreement creates any relationship of partnership, employment or agency between the parties.
13.4 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
13.5 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
13.6 This Agreement (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this agreement, no party has relied on any representation made by or on behalf of the other.
13.7 This Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.
Acceptance by Client
By signing this Services Agreement, the Client hereby acknowledges and agrees that:
(a) they have read and agree to the terms and conditions which form part of this Agreement;
(b) Learning Consent may vary the terms of this Agreement from time to time. Any amendment to the terms of this Agreement will have effect on and from the date that is seven (7) days after Learning Consent gives notice to the Client of such change. If the change materially affects the Client’s rights under this Agreement, the Client may give 30 days’ written notice to Learning Consentterminating this Agreement;
(c) they understand that even if they do not sign and return this Agreement to Learning Consent, but continue to instruct Learning Consent (or fail to immediately withdraw their instructions), or make any payment towards the Fees, they will be deemed to have accepted the terms of this Agreement and will be bound to them as if they have signed; and
(d) this Services Agreement may be signed electronically and such electronic signature by the Client indicates the Client’s intention to enter into this Agreement in order to satisfy the requirements s14(1) of the Electronic Transaction Act (NSW) 2000.
The person signing below confirms that they are authorised to complete this Agreement on behalf of the Client.
Client Signature: ___________________________________________________ Date: _____________________
Full Name: _____________________________________________________________________