Terms of Service

Last updated: 19 July 2022

Best International Group Pty Ltd (“Best”) (ABN 41 102 778 414) of Level 10, 100 Walker St, North Sydney, New South Wales, 2060

RECITALS

The Customer wishes to receive the services outlined in the Statement of Works ("SOW") (See Schedule 1).
Best has the skills, background and experience in providing the services outlined in the
The Customer wishes to engage an independent contractor to provide the Services to the
Best is willing to provide the Services and the Customer is willing to appoint Best to provide the Services, all in accordance with the provisions of this

1. Definitions and Interpretation

1.1 Definitions

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 Best during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Customer in the course of the Customer'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.

Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into this agreement pursuant to division 1 part 3-2 of the Australian Consumer Law.

Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations under this agreement.

Deliverable means the goods or services to be supplied by the Supplier pursuant to this agreement.

Facilities means working space, computer equipment, access to the internet and the Customer’s computer network, telecommunications system etc. It includes access to such resources but also uses them to the extent required by the Supplier in order to perform the Services.

Fee(s) means the fees set out in the SOW.

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, 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.

Parties means Best and the Customer, and Party means either one of them.

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 the Supplier under this agreement.

Statement of Works means the specific Services to be provided by Best under this Agreement. The Statement of Works is set out in Schedule 1 of this Agreement.

Supplier’s Personnel means any person or persons that the Supplier designates to perform the Services on the Supplier’s behalf.

Termination Date means the earlier of:

(a) the date of termination of this Agreement by the Customer or Best; and

(b) the date of expiry of this Agreement.

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".

2. Services

a. Best will provide the Services to the Customer in consideration for the Customer paying the Fee to Best, subject to the provisions of this

b. Best and the Customer will agree on the time and place for the performance of the Services.

c. Best will use reasonable endeavours to complete the Services including the provision of data, materials or reports by the dates specified in the Statement of Works or any other dates agreed by the

d. The Services will be performed by the employees or agents that Best may choose as most appropriate to carry out the Services as agreed, from time to time by the Parties.

e. The Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Services, and the Fee(s) will be set out in the Statement of Works.

3. Location

Best will provide the Services in places and locations as set out in the Statement of Works.

4. Fee(s)

4.1 Payment of Fees

a. In consideration of the provision of the Services in accordance with this agreement, the Customer will pay Best the

b. Where Best’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated

c. the Customer acknowledges that the Fees are exclusive of any GST that may be charged by Best to the Customer, and therefore, Best will be entitled to add on

4.2 Invoicing

a. Best will provide the Customer with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause

b. Payment will be made by the Customer to Best as per the terms of both the SOW and

c. When making a payment, the Customer must quote relevant reference numbers and the invoice number.

d. The invoice referred to in clause 4.2 must include the following details before payment can be approved and forwarded:

1. 1. 1. date of Services;
    2. description of Services provided; and
    3. the ABN of

4.3 Variation of Fees

Best is entitled to vary their rates during the term of this agreement with written notice to the Customer of 30 days prior to the change being implemented.

4.4 Costs and disbursements

Best is permitted to charge for all costs and expenses incurred in performing the Services, including but not limited to travel, storage, courier services, and any miscellaneous equipment costs associated with the provision of Services.

4.5 Failure to pay

If the Customer does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, Best is entitled to do any or all of the following:

1. charge interest on the outstanding amount at the rate of 2% per year above the base lending rate of ScotPac Business Finance, accruing daily;
2. require the Customer to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
3. not perform any further Services (or any part of the Services).

4.6 Disputed invoices

If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by Best, the Customer 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; and

b. notify Best in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice

5. Best's Personnel

(a) If the Customer:

1. 1. makes a notice in writing to Best; and
  2. has reasonable grounds which have been disclosed and discussed with Best,

the Customer may require Best to cease to permit a particular person or persons employed by Best or acting as agent for Best to carry out the Services.

(b) If the Customer makes the requirement referred to in clause 5(a), Best must, as soon as it is practicable:

1. 1. cease to provide the service of the particular person or persons in respect of the Customer’s business; and
  2. provide the services of an alternative person or persons as may be reasonably acceptable to the Customer.

6. The Customer's Obligations

(a) During the preparation of the Statement of Works and performance of the Services the Customer will:

1. 1. cooperate with Best as Best reasonably requires;
  2. provide the information and documentation that Best reasonably requires;
  3. make available to Best such Facilities as Best reasonably requires; and
    
    ensure that the Customer’s staff and agents cooperate with and assist

(b) the Customer will not charge for Best’s use of the Facilities made available by the Customer.

(c) If the Customer does not provide the Facilities that Best reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by Best will be paid by the Customer.

7. No partnership or employment relationship

(a) Nothing in this agreement constitutes the relationship of employer and employee between the Customer and Best or between the Customer and Best’s Personnel

(b) It is the express intention of the Parties that any such relationships are denied.

8. Use of subcontractors

(a) Best is permitted to use other persons to provide some or all of the

(b) Best is responsible for the work of any of Best’s

(c) Subject to clause 8(d), any work undertaken by any of Best’s subcontractors will be undertaken to the same standard as stated in this agreement and the Statement of Works.

(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 timing or quality), any Services provided by the relevant subcontractor 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 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.

10. Confidentiality

(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

(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.

1. 1. 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
  2. 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

(d) The Confidential Information does not include information which:

1. 1. is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by the Recipient; or
  2. was known by the Recipient prior to the Discloser disclosing the information to the

(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. Privacy

(a) the Customer is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by the Customer to Best in connection with this agreement so as to ensure that Best's dealings with that information pursuant to this agreement comply with Best's obligations under any Privacy Laws.

(b) the Customer must indemnify Best against, and must pay Best on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 11(a).

1. 1. immediately notify Best 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;
  2. comply with any directive from Best as to which Party will discharge any statutory reporting obligation arising from the incident;
  3. conduct or assist Best in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
  4. ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach

12. Warranties, liability and indemnities

12.1 Warranties

(a) Best warrants that it will use reasonable care and skill in performing the Services and to the standard generally accepted within the industry, sector or profession in which Best operates for the type of Services provided by Best

(b) If Best performs the Services (or any part of the Services) negligently or materially in breach of this agreement including any part of the Statement of Works, then, if requested by the Customer, Best will re-perform the relevant part of the Services, subject to clauses 12.6(a) and 12.6(b) below

(c) the Customer’s request referred to in clause 12.1(b) must be made within 7 days of the date Best completed performing the Services

12.2 Insurances

Best must take out the following insurance:

(a) worker’s compensation insurance as prescribed by law for Best’s Personnel; and

(b) public liability insurance for a minimum of an amount of $20 million, unless otherwise agreed.

12.3 Employees and subcontractors

(a) Best covenants that Best is solely responsible for payment to Best’s 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 Best’s employees or

(b) Best must otherwise comply with legislation applicable to Best’s employees and agents.

12.4 Compliance with all laws

Throughout this agreement Best must comply at Best’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 Best or to the Services. The Best must indemnify the Customer from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.

12.5 No warranties in relation to completion

Best 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 Statement of Works or elsewhere.

12.6 Limitation on liability

(a) Except in the case of death or personal injury caused by Best’s negligence, the liability of Best under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Customer to Best under this The provisions of clause 12.6(a) will not apply to clause 12.4.

(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 4. 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.

1. 1. in the case of goods supplied to the Customer, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the Customer of the replacement or supply), or the repair of the goods (or the payment of the cost to the Customer of the repair); and
  2. in the case of services supplied to the Customer, the supply of the services again or the payment of the cost to the Customer of having the services supplied again.

12.7 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.

12.8 Survival of obligations

The obligations accepted by Best and the Customer under this clause 12 survive termination or expiry of this agreement.

13. Termination

(a) Either Party may terminate this Agreement by notice in writing to the other if the other Party notified:

1. 1. fails to observe any term of this Agreement; and
  2. fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of [7 days] 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:

1. 1. if the other Party commits a material breach of the agreement which is incapable of rectification;
  2. if the Customer enters into a deed of arrangement or an order is made for it to be wound up;
  3. if an administrator, receiver or receiver/manager or a liquidator is appointed to the Customer pursuant to the Corporations Act; or
  4. if the Customer would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations

(c) Upon termination of this agreement any fees, expenses or reimbursements payable by the Customer to Best in respect of any period prior to the Termination Date must be paid by the Customer within 7 days after the Termination Date.

14. General

14.1 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.

14.2 Amendments

This Agreement may only be amended in writing and signed by duly authorised representatives of the Parties.

14.3 Assignment

(a) Subject to paragraph (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.

14.4 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.

14.5 Waiver

(a) No failure or delay by Best 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

14.6 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

(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.

14.7 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.

14.8 Severance

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.

14.9 Announcements

(a) Subject to paragraph (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.

14.10 Notices

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.

14.11 Work, health and safety

Best must comply with all relevant work, health, safety and welfare standards and regulations determined by the Customer or as prescribed by legislation.

14.12 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 New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

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