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Services Agreement

East Coast Canning & Printing – Master Services Agreement

 

    1. Term
        • This agreement begins on the Start Date and continues in perpetuity unless terminated in accordance with this agreement (Term).
    2. Orders
        • During the Term, you may request Services from us and upon our acceptance of your request a separate contract will be formed between the parties for the performance of the services (Order).
        • This agreement consists of the terms of this Master Services Agreement and an Order. The terms in this Master Services Agreement will prevail over an Order to the extent of any inconsistency.
        • No purchase order, invoice, quote or other document containing pre-printed terms created or provided by you or a third party will vary the terms of this agreement.
    3. Services
        • We will supply the Services in accordance with this agreement and the Special Conditions.
        • You acknowledge and agree that:
            • we will use reasonable endeavours to perform the Services in accordance with the booking times agreed between the parties;
            • the performance of the Services is subject to numerous circumstances beyond our control (including your compliance with our Checklist, weather, product availability and access to premises); and
            • any failure to perform or complete the Services as a result of circumstances beyond our control will not constitute a breach of this agreement.
        • We may sub-contract the Services to third parties.
    4. Change requests
        • You may request a variation to an Order (including a change to the scope) by submitting a change request to us and we may propose a variation order in such form as we determine, which will detail applicable amendments to the timetable and fees.
        • You may approve the variation order in writing or by email.
        • You acknowledge and agree if you cancel the performance of part of the Services by changing the agreed Booking Time within two weeks or the date for performance without our prior consent, we will invoice you 15% of the job value. This is a genuine pre-estimate of our loss, which includes operational and administrative fees.
    5. Fees and payment
        • You must pay the Fees within 7 days of receipt of our invoice.
        • We may adjust the price of any component of the Services where:
            • you have delayed or rendered more difficult our performance or completion of that component;
            • the volume of the product is greater than, or less than 15% of the amount agreed pursuant to an Order; or
            • we were given misleading, inappropriate or incorrect instructions.
        • If pre-approved, you must pay all reasonable travel, accommodation, courier, out-of-pocket and administrative expenses which we incur in performing the Services.
        • If you fail to pay an undisputed amount by the due date, we are entitled, without limiting any other rights available to us, to:
            • suspend performance of the Services;
            • charge interest on the amount due at the rate of 2% per month from the due date until overdue amounts are paid in full; and
            • be reimbursed for any debt collection expenses incurred by us as a result of your failure to pay when due.
        • All amounts under this agreement are expressed on a GST-exclusive basis. If GST is payable in relation to a taxable supply, the amount payable for that taxable supply is the amount for that taxable supply plus GST.
    6. Your obligations
        • You are responsible for:
            • providing us with the product and any information relevant to our performance of the Services, including setting out the relevant fill levels;
            • providing us with the cans, ends and all material required for the Services other than that which we are expressly providing as part of the services; and
            • ensuring the cans comply with the Specifications and performing a final check on all product.
        • You must:
            • provide to us, at least 14 days prior to the Booking Time the volume of product to be canned pursuant to the Order;
            • ensure you are at all times able to comply with the Checklist;
            • obtain at your expense all rights, permits, approvals, consents and licences for us to enter the venue and/or supply the Services;
            • procure for us safe and proper access to the Location and a safe working environment, including:
                • communicating Location specific WH&S considerations;
                • assisting our staff perform a Location audit in accordance with our Safety Management Plan;
                • providing all our staff with a site induction if requested by us; and
                • answering any questions regarding safety equipment and procedures;
            • comply with all applicable laws and regulations; and
            • ensure all your staff provide us with reasonable assistance and you and your staff comply with our reasonable requests.
    7. Delay or non-performance
        • If you do not perform, or are delayed in performing, any of your obligations:
            • we will not be liable for any failure or delay in supplying the Services; and
            • if the delay is extensive, we may elect to terminate the agreement without liability, on notice to you; or
            • if the delay is extensive and we do not elect to terminate the agreement in accordance with clause 1(b), we reserve the right to reassess and increase the Fees payable by you taking into account a genuine estimate of our loss as a result of your delay, which includes operational and administrative fees.
    8. Warranties
        • You represent and warrant all information and material you provide in connection with the Services, including the Specifications:
            • is, to the best of your knowledge, accurate, complete and current;
            • does not infringe the Intellectual Property Rights of any person; and
            • is not unlawful or fraudulent.
        • Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:
            • it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
            • there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.

 

    1. Intellectual property rights
        • Nothing in this agreement constitutes a transfer of any Pre-Existing IP to the other party or any other person.
        • You represent and warrant that you own, or are licensed to use, all the Intellectual Property Rights you provide to us in connection with the services (Your Content). You grant us a royalty-free, non-exclusive and non-transferable right to use and reproduce Your Content as required under this agreement.
        • You consent to us naming you as a client and reproducing your logo for marketing and publicity purposes.
    2. Confidentiality
        • Each party will keep confidential the Confidential Information and use the Confidential Information for the sole purpose of performing its obligations under this agreement.
        • You acknowledge we cannot keep job locations confidential. If you would like us to keep a job location confidential, please notify us by email at least 24 hours prior to the Booking Time.
    3. Liability
        • To the fullest extent permitted by law:
            • we supply the Services on an as-is and as-available basis. You acknowledge and agree it is your sole responsibility for determining the suitability of our Services;
            • we are not liable for any claims, liability, loss, damage, expenses and costs arising in connection with your brew or the cans, the Specifications or any information, material or content provided by your third party supplier;
            • our aggregate liability in connection with the agreement will not exceed an amount equal to the Fees paid by you to us under the agreement;
            • we are not liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise, for loss of profit, loss of opportunity, loss or reputation (whether such losses are direct or indirect) and any consequential or indirect loss or damage.
        • Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we expressly exclude all warranties, conditions and representations in whatever form, relating to the Services, including any warranties or representations relating to performance, quality, fitness for use or the security and operation of the Services.
        • Where a mandatory term or consumer guarantee is implied by law, our liability for breach of such a term or consumer guarantee is limited, at our option, to:
            • if the breach relates to goods:
                • the replacement of the goods or the supply of equivalent goods;
                • the repair of the goods;
                • the payment of the cost of replacing or repairing the goods; or
            • if the breach relates to services:
                • the supplying of the services again; or
                • the payment of the cost of having the services supplied again.
    4. Indemnity
        • You indemnify us from and against all claims, liability, loss, damage, expenses and costs (including legal costs on a full indemnity basis) arising directly or indirectly from or in connection with:
            • any breach of this agreement, negligence, fraud or willful misconduct by you, your officers, employees, contractors and agents;
            • personal injury or death, or property loss or damage; and
            • any claim that Your Content is unlawful or infringes the Intellectual Property Rights or other rights of any person.
    5. Termination
        • Either party may terminate the agreement at any time by giving the other party 7 days’ written notice.
        • Either party may terminate an Order at any time by giving the other party at least 28 days’ written notice.
        • The termination of:
            • this agreement will not affect the validity of any Order which is in force on the date of termination; and
            • any Order will not affect the validity of this agreement or any other Order.
        • If either party terminates the agreement in accordance with clause 13.1, termination will take effect upon completion of the final Order in place between the parties.
        • If you terminate an Order in accordance with clause 2 and/or 13.1:
            • more than 28 days prior to the Booking Time, you must pay all outstanding Fees owed to us as at the date of termination attributable to any services provided by us up to and including the date of termination and any reasonable costs incurred by us as a result of the termination (including administrative fees and any third party cancellation fees); or
            • between 28 and 14 days prior to the Booking Time, you must pay 50% of all Fees owed to us and any reasonable costs incurred by us as a result of the termination (including administrative fees and any third party cancellation fees); or
            • between 14 and 0 days prior to the Booking Time, you must pay 75% of all Fees owed to us and any reasonable costs incurred by us as a result of the termination (including administrative fees and any third party cancellation fees).
        • If we terminate an Order in accordance with clause 13.2:
            • you must pay all outstanding Fees owed to us as at the date of termination attributable to any services provided by us up to and including the date of termination; and
            • you will be released from any obligation to pay any Fees attributable to services not actually provided as at the date of termination.
        • If you wish to postpone the Services for any reason, you must notify us immediately. We reserve the right to charge you any reasonable costs incurred by us as a result of the postponement (including any third party cancellation fees).
        • Either party may terminate the agreement or any Order on notice if the other party:
            • fails to remedy a breach within 21 days’ notice from the other party requesting the breach be remedied;
            • breaches this agreement and that breach is not capable of remedy; or
            • becomes insolvent or enters into liquidation.

 

    1. Complaints or product issues
        • You must notify us as soon as practicable (but no later than 3 days) if you become aware of any complaint or issue related to the Services.
        • We reserve the right to conduct our own testing on any product that is the subject of a complaint or claim. You must provide us all reasonable assistance to undertake such tests, including allowing us to access and obtain information from any third party suppliers engaged by you connected to the Services.
    2. Dispute resolution
        • Any party who claims to have a dispute against the other party must issue a Dispute Notice.
        • Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods.  All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
        • If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
        • Subject to clause 4, despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
    3. Notices
        • A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address.
        • A notice is deemed to have been received:
            • if posted:
                • within Australia, on the second business day after posting; or
                • in any other case, on the tenth business day after posting;
            • if delivered personally, upon delivery;
            • if sent by email, the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message).

 

    1. General terms
        • Nothing in the agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture.
        • You or we may not assign or transfer the agreement without the written consent, which must not be unreasonably withheld.
        • The agreement contains the entire understanding between you and us concerning the subject matter of the agreement and supersedes all prior communications.
        • The agreement may not be varied unless the variation is in writing and signed by you and us.
        • If any term or provision of this agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under any applicable law, that term or provision will be deemed severed from this agreement, and the remaining terms and provisions will be unaffected.
        • The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
        • The agreement is governed by, and construed in accordance with the laws of New South Wales, Australia. You and we agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
    2. Definitions

In this agreement:

 

    • Booking Time has the meaning given to that term in the Services section of the Key Details, an Order or as otherwise agreed between the parties from time to time.
    • Checklist means our list of key requirements, including the minimum power supply required for us to perform the Services as set out in Schedule 1 or as otherwise provided by us to you from time to time.
    • Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:
    • is identified as confidential or ought to have been known to be confidential; and
    • relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,
    • but does not include information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.
    • Dispute Notice means a notice issued by a party claiming a dispute has arisen, which is issued to the other party setting out the nature of the dispute and all other information relevant to the dispute.
    • Fees means all fees and charges payable by you to us under the agreement.
    • GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    • Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, business and domain names, Confidential Information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable
    • Location has the meaning given to that term in the Services section of the Key Details, or as otherwise agreed between the parties from time to time.
    • Pre-Existing IP means any Intellectual Property Rights in any materials existing at the date of this agreement, including Intellectual Property Rights in software, hardware or documentation and materials used in our or your business.
    • Safety Management Plan means the plan available upon request.
    • Services means the mobile canning services and customer reports supplied by us to you under the agreement, as specified in the Key Details.
    • Special Conditions means any conditions set out in the Key Details
    • Specifications means the product details provided by you to us, if applicable.
    • Start Date means the date this agreement is signed by both parties.
    • WH&S Policy means the policy available upon request.