Workspaceco
Part 2 – General Terms and Conditions
1.DEFINITIONS
Additional Services means the additional services as specified in item 9 of the Contract Particulars.
Additional Services Hourly Rate means at the Commencement Date, the amount specified in item 9 of the Contract Particulars.
Agreement means this Services Agreement, including any schedules and annexures to it.
Base Rate means interest at the rate:
(a) on any day, quoted as the average bid rate for 30 day bills of exchange on the Reuters Monitor System page “BBSY”; or
(b) if that rate ceases to be quoted, the equivalent of that rate determined by the Client, acting reasonably.
Billing Period means the period of time specified in item 7 of the Contract Particulars.
Business Day means a day, which is not a Saturday, Sunday, public holiday or bank holiday in the city of London, United Kingdom.
Claim means, in relation to a Party, any demand, claim, action or proceeding, made or brought by or against the Party, however so arising and whether present, unascertained, immediate, future or contingent.
Client IP means:
(a) the Intellectual Property Rights that the Client owns as at the date of this Agreement;
(b) the Intellectual Property Rights that the Client acquires or develops from the date of this Agreement; and
(c) the refinement or improvement to the Intellectual Property Rights of the Client made after the date of this Agreement.
Client’s Representative means person authorised to represent and give instructions on behalf of the Client in relation to this Agreement.
Commencement Date means the date that the Service Provider commences the Services, as specified in item 1 of the Contract Particulars.
Confidential Information means, other than the Excluded Information, all records, documents or other information, in whatever form:
(a) relating to this Agreement or any transaction contemplated under this Agreement, including relating to the negotiations in relation to this Agreement;
(b) relating to any expert determination initiated under this Agreement;
(c) relating a Party or that Party’s business affairs, including methods of operation, intellectual property or associated rights, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialised information or proprietary matters;
(d) that is disclosed by a Party and is marked as being confidential or is of a confidential, secret or proprietary nature; or
(e) where the Client is the disclosing Party:
(i) documents, records or information related to the Services given to the Service Provider or Virtual Assistant; and
(ii) Personal Information of third parties provided by the Client to the Service Provider or Virtual Assistant in relation to the Services.
Contract IP means any and all Intellectual Property Rights created, discovered, developed or that come into existence in relation to performance of this Agreement or any Services by one or both of the Parties.
Contract Particulars means the Contract Particulars section of this Agreement.
Duty means a tax on a dutiable transaction under the relevant laws that the Service Provider must abide by.
End Date means the date specified in item 3 of the Contract Particulars.
Excluded Loss means, whether arising under common law, in equity or under any statute, or otherwise from or related in any way to this Agreement or its subject matter:
(a) any of the following, whether actual, direct, indirect, anticipated or otherwise: loss of profit; loss of revenue; loss of product; loss of expected savings; loss of income, rent or holding costs; loss of expected production; opportunity costs; loss of business (including loss or reduction of goodwill or opportunity); or damage to reputation; and
(b) any indirect or consequential loss which is not covered by paragraph (a) of this definition.
Force Majeure means an event beyond a Party’s reasonable control which, by exercise of reasonable diligence and precautions, could not have been prevented or reasonably foreseen by that Party, including any:
(a) act of God, unusually severe weather, earthquake, fire, subsidence, land slide, mud slide, wash-out, explosion or natural disaster;
(b) terrorism, insurrection, revolution or civil disorder, act of public enemies, malicious damage, sabotage, vandalism, war (whether declared or undeclared) or a military operation, blockade or riot; or
(c) industrial dispute of any kind, strike, lock-out, ban, limitation or other industrial disturbances.
Government Agency means a governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
Insolvency Event means, in relation to a Party (Relevant Party):
(a) a receiver, receiver and manager, controller (as that term is defined in the Companies Act 2006), administrator, liquidator, provisional liquidator, or similar officer is appointed to the Relevant Party or any of its assets;
(b) an application is made to a court for an order to appoint a person described in paragraph (a) of this definition and that application is not permanently stayed, withdrawn or dismissed within 21 days;
(c) the Relevant Party enters into, or resolves to enter into, a deed of company arrangement, scheme of arrangement, compromise or composition with any class of creditors;
(d) a resolution is passed or an application to a court is taken or an order is made for the winding up, dissolution, official management or administration of the Relevant Party;
(e) the Relevant Party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention not to pay its creditors;
(f) the Relevant Party commits an act of bankruptcy as defined under Insolvency Act 1986 or is declared bankrupt;
(g) the Relevant Party enters into a personal insolvency arrangement or a debt agreement under Insolvency Act 1986;
(h) the making by the Relevant Party of an assignment or attempted assignment for the benefit of its creditors;
(i) any enforcement process (as that term is defined under the Companies Act 2006) is taken against or in relation to a substantial portion of the assets of the Relevant Party and is not satisfied or withdrawn within 21 days; or
(j) anything having a substantially similar effect to any of the events specified in paragraphs (a) to (i) of this definition happens under the Law of any applicable jurisdiction.
Intellectual Property Rights means all intellectual property rights throughout the world, whether:
(a) registered, unregistered or registrable;
(b) now existing or that come into existence in the future; or
(c) stored or incorporated in any medium of any nature,
including:
(d) any patent, trade mark, copyright (including future copyright), moral right, design, plant breeder’s rights, circuit layout rights or any other corresponding property or right under the Laws of any jurisdiction;
(e) rights in respect of an invention, discovery, trade secret, know-how, concept, idea, methodology, information (including, where applicable, Confidential Information), data, algorithm or formula;
(f) any right to apply for grant or registration of intellectual property or intellectual property rights; and
(g) all renewals and extensions and all similar or equivalent rights or forms of protection in relation to intellectual property or intellectual property rights.
Law means any of the following, in any jurisdiction relevant to the acquisition or supply of the Services:
(a) legislative requirement;
(b) common law;
(c) mandatory codes, standards and guidelines;
(d) writ, order, injunction or judgment;
(e) regulatory requirement of any Government Agency having jurisdiction over the Parties or the Services, whether formal or informal, no matter how expressed, including by way of order, notice, determination or direction; and
(f) local government legislation, including regional plans, district plans, regulations, by-laws, declarations, ministerial directions and other subordinate legislation.
Loss means any of the following, whether it arises under contract, tort or otherwise and directly or indirectly:
(a) damage or loss, including direct or consequential loss, economic loss, or loss of profits; or
(b) liability, compensation, cost, charge, expense or other obligation, including;
(i) the cost of defending or settling a claim; and
(ii) legal fees on a solicitor-client basis.
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 the UK Data Protection Act.
Restraint Period means the Term and:
(a) 12 months from the termination or expiry of this Agreement;
(b) 6 months from the termination or expiry of this Agreement;
(c) 3 months from the termination or expiry of this Agreement.
Service Document means a document in whatever form that the Client requests be prepared, varied or completed as part of the Services.
Services means the services to be provided by the Virtual Assistant to the Client, as agreed in writing between the Service Provider and the Client as part of or during the provision of the Onboarding Services.
Service Fee means all fees that the Client must pay to the Service Provider for the Services as specified, calculated and payable in accordance with clause 8 and the Contract Particulars.
Service Provider IP means:
(a) the Intellectual Property Rights that the Service Provider owns at the date of this Agreement;
(b) the Intellectual Property Rights that the Service Provider acquires or develops from the date of this Agreement; and
(c) the refinement or improvement to the Intellectual Property Rights of the Service Provider made after the date of this Agreement.
Invoice means a list of the goods sent or services provided, with a statement of the sum due for these; a bill.
Term means the term of this Agreement.
Virtual Assistant means an administrative assistant engaged by the Service Provider to remotely perform Services for the Client.
- INTERPRETATION
2.1 General
In this Agreement, unless inconsistent with the context:
(a) if a word or phrase is defined, then its other grammatical forms have a corresponding meaning;
(b) the singular includes the plural and vice versa;
(c) a reference to a gender includes any gender;
(d) a reference to a clause, schedule or annexure is a reference to a clause, schedule or annexure to this Agreement;
(e) the words “includes” and “including” are not words of limitation and do not restrict the interpretation of a word or phrase in this Agreement;
(f) a reference to a document includes a variation or replacement of that document;
(g) a reference to a statute includes its subordinate legislation, proclamations, ordinances and a modification, replacement or re-enactment of the same;
(h) a reference to this Agreement includes an annexure or schedule to this Agreement;
(i) a reference to person, includes a reference to:
(i) an individual, a body corporate, a trust, a partnership, a joint venture an unincorporated body or other entity, whether or not it is a separate legal entity;
(ii) if the person is an individual, the person’s personal representatives and assigns; and
(iii) if the person is not an individual, the person’s successors and assigns;
(j) a reference to a thing, including a right, is a reference to either the whole thing or a part of the thing;
(k) part performance of an obligation does not constitute performance of an obligation;
(l) an agreement, representation or term of this Agreement in favour of or on the part of two or more people, benefits or binds them jointly and severally;
(m) a reference to currency is the currency that the client is billed in by the Service Provider;
(n) a reference to time is to London Standard Time in London, United Kingdom;
(o) if the date on which an act, matter or thing must be done or take place is not a Business Day, then that act, matter or thing must be done or take place on the next Business Day;
(p) a reference to a day is a reference to the period, which starts at midnight and ends 24 hours later;
(q) if a period of time runs from a given date, act or event, then the time is calculated exclusive of the date, act or event;
(r) a provision of this Agreement must not be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of this Agreement or that provision;
(s) a reference to “writing” or “written” includes any electronic transmission or communication by facsimile;
(t) a reference to a right includes a benefit, remedy, discretion or power; and
(u) the phrase “in relation to” has the widest possible import and encompasses the phrases “in connection with”, “in respect of”, “arising out of” and “resulting from”.
2.2 Headings
A heading in this Agreement is for convenience only and does not affect the interpretation of this Agreement.
2.3 Inconsistency within this Agreement
(a) A Special Condition prevails to the extent of any conflict or inconsistency with any other provision of this Agreement.
2.4 Nature of agreement
(a) This Agreement is a 6-Week Trial Period Agreement without any lock-in period.
- APPOINTMENT OF SERVICE PROVIDER
In consideration of the Client paying the Service Fees, the Service Provider agrees to perform the Services for the duration of the Term in accordance with this Agreement
- TERM
- (a) This Agreement commences on the Commencement Date and expires on the End Date unless terminated earlier at Law or under this Agreement.
(b) If the Client continues to engage the Service Provider to provide the Services after the end of the Term, the continuing engagement will be on the terms and conditions set out in this Agreement, except the Agreement will continue as if it were a Monthly or Annual Subscription Agreement, subject to termination in accordance with clause 14 of this Agreement.
- SERVICE PROVIDER’S OBLIGATIONS
5.1 Provide Services
(a) The Service Provider must provide the Services and the Onboarding Services in accordance with the terms of this Agreement.
(b) The Service Provider must perform the Services and Onboarding Services to the standard of professional care, skill, expertise, judgment and diligence expected of a competent professional experienced in providing services which are similar to the Services.
(c) During the Term, the parties may agree to vary the Services or the Service Fees, including if the Service Provider agrees to provide the Additional Services at the Client’s request.
5.2 Virtual Assistant
(a) The Client acknowledges that all or part of the Services will be performed by a Virtual Assistant engaged as a subcontractor to the Service Provider.
(b) The Service Provider:
(i) will assign the number of dedicated Virtual Assistants to the Client specified in item 5 of the Contract Particulars, for the purpose of providing the Services;
(ii) may, by giving reasonable notice to the Client, change the Virtual Assistant that has been assigned to the Client;
(iii) must take all reasonable steps to ensure that the Virtual Assistant:
(A)has reliable internet at minimum suitable for web browsing and a reasonable level of Microsoft word processing competency and general computer skills necessary to perform the Services;
(B) has reasonable English language skill necessary to perform the Services; and
(C) Generally, has sufficient skills, qualifications and experience necessary to perform the Services as required under this Agreement; and
(iv) remains responsible for, and must take all reasonable steps to ensure that, the Virtual Assistant performs the Services as required under this Agreement.
(c) The Client acknowledges that the Service Provider and the Virtual Assistant may, but are not obliged to, perform the Services on official public holidays in the Client’s primary place of business or during the period between 25 December and the next 1 January.
5.3 Acknowledgments
The Client acknowledges and agrees that, notwithstanding clause 5.2(b)(iii):
(a) the Service Provider’s engagement, supervision and management of the Virtual Assistant is conducted remotely;
(b) the Service Provider will interview and conduct a general background review of the competency, qualifications, suitability and criminal history of a Virtual Assistant, but does not take any responsibility for any matters not detected in these checks or any fraudulent or misleading representations made by the Virtual Assistant in this regard;
(c) the Virtual Assistant’s ability to properly perform the Services is dependent upon the Client providing the information and documents in clause 6.1(a), and the accuracy of the same;
(d) prior to entering into this Agreement, the Client has been given a reasonable opportunity to examine and satisfy itself regarding all services which are the subject of this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity; and
(e) subject to clause 5.2(b)(iii), the Client has not relied on the skill or judgment of the Service Provider prior to entering into this Agreement and that it would be unreasonable for the Client to rely on any such skill or judgment.
- CLIENT’S OBLIGATIONS
6.1 General
The Client must:
(a) provide the Service Provider with the information and documents that the Service Provider requires to perform the Services, including templates or examples for all Service Documents that the Client requires be prepared or amended;
(b) comply with all reasonable directions issued by the Service Provider or the Virtual Assistant where such directions relate to the Service Provider or the Virtual Assistant’s ability to perform the Services;
(c) co-operate fully with the Service Provider’s personnel and the Virtual Assistant in relation to the provision of the Services; and
(d) make available to the Service Provider and the Virtual Assistant free of charge all information, facilities and services reasonably required to enable the Service Provider to perform the Services effectively
6.2 Verification of Service Documents
The Client is responsible for reviewing and verifying all Service Documents provided by the Virtual Assistant.
6.3 Internet access and data
(a) The Client must, at its own cost, procure the provision of adequate internet access from a third-party internet service provider to enable to the Service Provider to provide the Services.
(b) The Client acknowledges that electronic reports, certificates and other documents generated by the Virtual Assistant can contain significant amounts of data and sending by email of reports with large amounts of data by a Client’s mobile or internet data plan may result in large costs to the Client. The Service Provider is not liable for any data or internet usage costs and expenses that the Client incurs while using the Virtual Assistant.
(c) The computer programs, software or applications provided by the Service Provider for the purposes of performing the Services may enable access to other applications, third party services and web sites, the use of which may require internet access. The Client agrees to use these third party services at the Client’s sole risk and, to the extent permitted by law, the Service Provider is not liable for any Loss to the Client.
6.4 Consent to data and privacy
(a) The Service Provider may store all documents, records and other information provided by the Client or created by the Service Provider (including by the Virtual Assistant) in relation to the Services (Contract Information) for up to 7 years from the date that the information is provided.
(b) As part of the Contract Information, the Service Provider may collect, store and use technical data and related information, including but not limited to technical information about the Client’s system and application software that is gathered periodically to facilitate the provision of Services to the Client.
(c) Each Party must at all times comply with all applicable Privacy Laws in relation to this Agreement and the Services.
(d) Without limiting clauses 6.4(a) and (c), where the Client provides or intends to provide confidential material (including Personal Information) of a third party to the Service Provider or a Virtual Assistant, the Client must procure all necessary consents to from that third party:
(i) to make such disclosure to the Service Provider; and
(ii) for the Service Provider to collect, store, handle and otherwise deal with such confidential materials in accordance with this Agreement.
(e) The Service Provider will take all reasonable steps to store all Contract Information in a secure manner.
(f) Clauses 6.4(a) survives the termination or expiry of this Agreement.
6.5 Restraint
(a) The Client must not directly or indirectly do, procure or engage in any one or more of the following during the Restraint Period without the Service Provider’s prior written consent, such consent to be withheld at the Service Provider’s absolute discretion:
(i) solicit, canvass, induce or encourage any person or entity who is an officer, employee or contractor of the Service Provider (including a Virtual Assistant) to leave the employment or engagement with the Service Provider;
(ii) employ or engage under a contract for services any person that is an employee or contractor of the Service Provider (including a Virtual Assistant), or was an employee or contractor of the Service Provider in the 12 months preceding such employment or engagement of that person by the Client;
(iii) solicit, canvass, approach any person or entity who is or was a client or customer of the Service Provider, with a view to establishing a relationship with or obtaining the custom of that person or entity in a business which carries on the business of a similar related nature to the business of the Service Provider; or
(iv) interfere or seek to interfere, directly or indirectly, with the relationship between the Service Provider and its clients, employees or contractors (including Virtual Assistants) in the conduct of the Service Provider’s business.
(b) The obligations resulting from combining separately the restrictions in clause 6.5(a) with each time period of the Restraint Period constitute independent and separate restraints imposed upon the Client.
(c) The Service Provider is entitled to enforce the obligations in clause 6.5(a) to the fullest extent provided by the obligations.
(d) If any part of the obligations in clause 6.5(a) are or becomes unenforceable, that part will be severed and will not affect the validity and enforceability of the remaining parts of that obligation.
(e) If the Client employs or otherwise engages a Virtual Assistant provided to the Client under this agreement, whether or not the Client breaches clause 6.5(a)(ii) by doing so, then without limiting any other right or remedy that the Service Provider may have, the Client must on demand pay to the Service Provider a recruitment fee in the sum of $10,000 in currency of the client’s contract.
- REPRESENTATIVES
(a) The Client must at all times appoint a person as the Client’s Representative for the purpose of representing the Client in relation to this Agreement and for the purpose of issuing any instructions or notices, and signing any documents under or in relation to this Agreement.
(b) The Client may change the Client’s Representative at any time during the Term by notice in writing to the Service Provider.
(c) The Client’s Representative at the Commencement Date is specified in the Contract Particulars.
- SERVICE FEE
8.1 Payment of Service Fee
The Client must pay the Service Fees to the Service Provider.
8.2 Service Fees
The client agrees to pay the specified trial period fee upfront before the commencement of services.
(a) If the Service Provider agrees to provide Additional Services, then in addition to the fees specified above, the Client must pay the Additional Service Fees.
(b) If the Service Provider is unable to provide the number of hours of Services in any Billing Period as specified in the table in item 6 of the Contract Particulars due to unavailability of the Virtual Assistant or an interruption to Services caused by the Virtual Assistant being replaced for any reason, then the Trial Payment Amount will be reduced by an amount equal to the number of hours not provided times by the Hourly Rate.
8.3 Invoice
(a) Subject to clause 8.4(b), the Service Provider must give the Client an Invoice within prior to the start date of the trial.
8.4 Payment
(a) The Service Provider may engage a third party that provides payment platform to facilitate payments by the Client to the Service Provider, including through secure direct debit payments. The Client:
(i) agrees to use the Payment Platform for the purpose of making payments under this agreement;
(ii) consents to and authorises the Service Provider to disclose to any information relating to the Service Provider that is required for the Payment Platform to lawfully process payments under this agreement, and use that information for the purpose of processing or collecting payments under this agreement;
(iii) acknowledges that the Payment Platform will collect, use and disclose the Service Provider’s information in accordance with the Payment Platform’s privacy policy, and in making payment of the Service Fee the Client warrants that it has read, understood and agreed to be bound by Pinch’s privacy policy (available at https://stripe.com/legal/consumer).
(b) The Client acknowledges and agrees that where a request for payment of the Service Fee is returned or denied for whatever reason by the Client’s financial institution or is unpaid by the Client for any reason, then the Client is liable for all associated costs arising from that fact, including banking fees and charges, associated with the Service Fee.
(c) The Client must pay the Service Provider the amount shown on an Invoice within 7 days of the Invoice issue date.
(d) Time is of the essence for payment of each an Invoice.
8.5 Currency adjustment
If the Service Provider’s costs of providing or procuring the Services are provided to the Client are materially increased because of a decline in the currency exchange rate between the UK Currency and the Philippine Peso of more than 5% (Exchange Rate Variation), then the Service Provider may give notice to the Client to the effect that the Hourly Rate is to be adjusted in proportion to the Exchange Rate Variation (Price Change Notice).
(a) The Price Change Notice must specify the nature of the relevant Exchange Rate Variation and the adjusted Hourly Rate (Adjusted Hourly Rate).
(b) The Adjusted Hourly Rate has effect from the date that the Price Change Notice is received by the Client.
8.6 Interest
(a) The Client must pay to the Service Provider interest in accordance with this clause 8.7 (Interest) on:
(i) an unpaid portion of the Service Fee which is overdue; and
(ii) any other overdue sum, which the Service Provider is entitled to charge under this Agreement.
(b) If the Client does not pay an amount claimed in an Invoice because the amount is in dispute and the dispute is resolved in favour of the Service Provider, then the Client must pay Interest on that amount from the day which is 8 days after the Service Provider issued an Invoice for the disputed amount until the date that the Client pays the disputed amount in full.
(c) Interest for the purposes of this clause 8.7 accrues at the rate of 4 percentage points above the Base Rate, on a daily basis from and including the due date to (but excluding) the date of payment.
8.7 No set-off
The Client must not deduct from any money due, or which becomes due, from the Client to the Service Provider or any money of the Service Provider held by Client, any money due to Client or claimed to be due to Client from the Service Provider under this Agreement or otherwise.
- Reimbursement
If one of the Parties (Paying Party) is required to reimburse or make a payment to another Party (Receiving Party) in relation to this Agreement that is referable to a cost, expense or other amount (Amount) paid or incurred by the Receiving Party, the amount of the reimbursement or payment to be made by the Paying Party will be net of any input tax credits which may be claimed by the Receiving Party.
9.1 Invoice
The supplier or the relevant representative member must issue:
(a) an invoice to the recipient of any supply in respect of that supply; and
(b) any relevant adjustment note to the recipient of a supply in respect of any adjustment that arises from an adjustment event relating to that supply.
9.2 Adjustment
If there is an adjustment to any of the consideration payable for a supply which gives rise to an adjustment event, the GST liability for that taxable supply must be recalculated in accordance with the adjusted consideration and where applicable, an appropriate payment on account of the adjusted liability is to be made between the Parties.
- INTELLECTUAL PROPERTY
10.1 Service Provider’s IP
(a) The Service Provider is and remains the owner of the Service Provider IP.
(b) Nothing in this Agreement prevents, limits or restricts the Service Provider’s use or exploitation of Service Provider IP.
10.2 Client IP
(a) The Client is and remains the owner of the Client IP which includes all any and all Intellectual Property Rights in a Service Document.
(b) Nothing in this Agreement prevents, limits or restricts the Client’s use or exploitation of the Client IP.
(c) The Client grants to the Service Provider a non-exclusive, non-transferable, revocable and royalty free license to use Client IP to the extent required for the Service Provider to perform the Services under this Agreement.
10.3 Contract IP
(a) All Intellectual Property Rights in the Contract IP vest upon creation in the Service Provider.
(b) The Client assigns to the Service Provider all right, title and interest (including future copyright) in all Contract IP upon the creation of that Contract IP or, to the extent that any Intellectual Property Rights are
not created at the time of the creation of the Contract IP, upon the later creation of the Intellectual Property Rights in that Contract IP.
(c) On the Service Provider’s request, the Client must execute a formal assignment or other document required to give effect to this clause.
(d) The Service Provider grants to the Client a non-exclusive, royalty-free, irrevocable non-transferable, worldwide license to use the Contract IP for the Term only to the extent necessary for the Client to obtain the benefit of the Services.
10.4 Client’s obligations
(a) The Client must:
(i) notify the Service Provider as soon as the Client becomes aware of unauthorised use of Service Provider IP or Contract IP (as the case may be);
(ii) provide reasonable assistance in relation to the infringement in clause 10.4(a)(i);
(iii) at the Service Provider’s request, provide reasonable assistance to protect, perfect, enforce, defend or assert the Service Provider’s interests in and right to use and exploit the Service Provider IP or the Contract IP (as the case may be); and
(iv) assist the Service Provider to take action against a person infringing the Service Provider’s rights in relation to the Service Provider IP or the Contract IP (as the case may be).
(b) The assistance that the Client must provide under this clause 10.4 does not include financial assistance.
10.5 Third party Intellectual Property Rights
Each Party warrants to the other Party that to, the extent that the warranting Party uses a third party’s Intellectual Property Rights to provide, use or enjoy the Services:
(a) the warranting Party holds the licences and consents to allow it legally to use or assign the third party Intellectual Property Rights;
(b) the other Party is not liable for any costs relating to obtaining the third party Intellectual Property Rights; and
(c) the warranting Party is not in breach of a licence or assignment relating to a third party Intellectual Property Right.
- CONFIDENTIALITY
11.1 Obligations of confidentiality
Subject to clause 11.2, each Party (Recipient) must at all times:
(a) hold in strict confidence all Confidential Information of the other Party (Disclosing Party);
(b) not disclose or permit or cause the Disclosing Party’s Confidential Information to be disclosed to any person other than any of the Recipient’s Personnel who require that Confidential Information for the purposes of performing the Recipient’s obligations under this Agreement;
(c) not make use of the Disclosing Party’s Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from that Confidential Information) except and solely to the extent necessary for the performance of this Agreement; and
(d) must ensure that any permitted person to whom the Recipient passes any of the Disclosing Party’s Confidential Information (unless disclosed under 11.2(c)) acknowledges and complies with the confidentiality obligations under this clause 11 as if that person were also a Party to this Agreement.
11.2 Exceptions
The obligations in clause 11.1 do not apply to the Recipient to the extent that:
(a) at the time of disclosure, the relevant Confidential Information is in the public domain other that by breach of clause 11.1;
(b) the Disclosing Party has provided its prior written consent to the use or disclosure of the Confidential Information in a manner that would, but for the consent, be contrary to clause 11.1;
(c) disclosure of the relevant Confidential Information is required to comply with any Law or order of a court, arbitrator or government body;
(d) disclosure of the relevant Confidential Information is required to comply with the rules of a regulated securities exchange (including the London Stock Exchange), provided that a draft of the proposed disclosure or announcement is provided to the other Party and the other Party is provided with the opportunity to comment on such draft; or
(e) disclosure of the relevant Confidential Information made to any legal counsel, accountant, insurance advisor, bank or other professional adviser in relation to the Recipient’s affairs provided that the professional advisor is bound by an obligation or confidentiality in regards to the information disclosed.
11.3 Equitable relief
The Parties agree that damages may not be an adequate remedy for breach of this clause 11 and that the Disclosing Party will be entitled to equitable relief, including temporary and permanent injunctive relief without the obligation of posting a bond (cash or otherwise), in the event of actual or threatened unauthorised disclosure or use of Confidential Information in breach of this clause 11.
11.4 Survival
The obligations under this clause 11 survive the termination of this Agreement.
- LIABILITY
12.1 Exclusion of warranties
(a) The Client must:
(i) make assessment of, and rely upon that assessment, of the Service Provider’s advice and recommendations; and
(ii) satisfy itself about the accuracy, content, legality and completeness of the Service Provider’s advice and recommendations.
(b) To the extent permitted by Law:
(i) this Agreement constitutes the entire agreement; and
(ii) excludes a condition, warranty, undertaking, inducement, guarantee or representation, whether express, implied, statutory or otherwise relating to the Services or this Agreement, which a person makes outside this Agreement.
(c) All terms, conditions, guarantees and warranties which otherwise might apply to, or arise out of, or be implied into this Agreement, are excluded to the extent permitted by Law, other than:
(i) as expressly stated in this Agreement; and
(ii) terms, conditions, guarantees and warranties which by Law cannot lawfully be excluded or modified by agreement, including those under the Consumer Protection Laws and Regulations in UK, the Fair Trading Act and any other applicable similar legislation.
12.2 Limitation of Liability
(a) The liability of Service Provider for any breach of any mandatory term, condition, guarantee or warranty described in clause 12.1(c) is, to the extent permitted by Law, limited at the option of Service Provider, to any one or more of the following:
(i) if the breach relates to the supply of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of such goods;
(C) the payment of the cost of acquiring equivalent goods;
(D) the payment of the cost of having the goods repaired; and
(ii) if the breach relates to the provision of services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(b) To the maximum extent permitted by Law, the Service Provider is not liable to the Client for any Loss to, to the extent that the Loss is increased or contributed to by, any one or more of the following:
(i) any failure by the Client to comply with this Agreement;
(ii) any Claims by third parties related to any Service Documents;
(iii) any breach of this Agreement, breach of confidentiality nor any negligent act or omission by the Virtual Assistant to the extent that the Service Provider has taken reasonable steps to prevent the same; or
(iv) any willful misconduct, fraudulent conduct or criminal conduct by the Virtual Assistant.
(c) This clause applies:
(i) despite any other clause: and
(ii) to the extent permitted by Law.
12.3 Excluded Loss
(a) The Service Provider is not liable to the Client for a liability for an Excluded Loss relating to this Agreement.
(b) The Client waives and releases the Service Provider from a liability for an Excluded Loss relating to this Agreement.
12.4 Maximum liability
Notwithstanding anything else in this Agreement, the Service Provider’s maximum aggregate Loss in relation to this Agreement must not exceed the higher of:
(a) the total amount of Service Fees in the 12 months preceding the date of a Claim giving rise to that liability; and
(b) the proceeds of the Service Provider’s insurance paid in relation to the Loss.
12.5 Apportionment of liability
The Service Provider’s liability under this Agreement will be reduced proportionally to the extent that any act or omission of the Client or its employees, agents or contractors have caused or contributed to the liability.
12.6 Indemnity
The Client assumes liability for, and indemnifies and will keep indemnified, the Service Provider from and against any and all Claims and Liabilities of whatsoever kind and nature in relation to any one or more of the following:
(a) breach by the Client of any provision of this Agreement;
(b) any negligent, reckless or unlawful act or omission by the Client;
(c) any contravention of a Law by the Client;
(d) a breach of any Privacy Laws by the Client;
(e) any Claim by a third party against the Service Provider in relation to any act or omission on the part of the Client.
- CHANGE OF LAW
(a) The Parties agree that if:
(i) any applicable Law is amended, altered, repealed or replaced; or
(ii) the manner in which a Government Agency interprets and/or applies any applicable Law, is altered, (Change of Law) so that this Agreement or the Services no longer complies with the relevant Law or any other requirements of the relevant Government Agency, they will confer urgently and in good faith to agree to amendments to this Agreement or the Services (as applicable) necessary to make this Agreement or the Services (as applicable) comply with the relevant Change of Law.
(b) If after 30 days the Parties are unable to agree on the amendments which would make this Agreement or the Services (as applicable) comply with the Change of Law, the Service Provider may terminate this Agreement.
- DEFAULT AND TERMINATION
14.1 Termination on notice
(a) The Client may terminate this Agreement by giving 2-week written notice to the Service Provider.
(b) The Service Provider may terminate this Agreement by giving 2-week written notice to the Client.
14.2 Termination for breach
A Party (Terminating Party) may terminate this Agreement immediately by giving written notice to that effect to the other Party (Other Party) if any of the following events occur:
(a) the Other Party breaches a material term of this Agreement and fails to remedy that breach within 14 days of written notice to do so from the Terminating Party, if such breach is capable of remedy;
(b) the Other Party breaches a material term of this Agreement and such breach is not capable of remedy;
(c) the Other Party fails to make any payment due to the Terminating Party within 14 days of the due date for payment under this Agreement; or
(d) the Other Party suffers an Insolvency Event.
14.3 Consequences of Termination of this Agreement
(a) If this Agreement is terminated or expires:
(i) the Service Provider must complete any Services requested prior to the termination or expiry;
(ii) the Service Provider must give the Client an Invoice for the Service Fee in relation to Services that have been performed prior to the termination or expiry but not yet invoiced;
(iii) the Client must immediately pay:
– the outstanding Service Fee in relation to Services performed prior to termination or expiry of this Agreement; and
– all other outstanding monies owing to the Service Provider;
(iv) the Client must immediately cease correspondence with the Virtual Assistant; and
(v) this Agreement ends and does not have any further effect, save to the extent expressly stated otherwise.
(b) If the Agreement is an Annual Subscription Agreement and the Client terminates the Agreement under clause 14.1(a), the Client will not be entitled to any refund of the “Minimum Annual Payment” specified in the table in item 6 of the Contract Particulars.
(c) Termination or expiry of this Agreement is without prejudice to a Party’s right to enforce a Claim of either Party which arises before the date of termination.
14.4 Return of Confidential Information
(a) Subject to clause 14.4(b), each Party must do the following on termination or expiry of this Agreement in relation the Confidential Information of the other Party in the first-mentioned Party’s possession, custody or control:
(i) return, or procure the return of, all that Confidential Information;
(ii) destroy, or procure the destruction of, all copies made of that Confidential Information referred to in clause 14.4(a)(i); and
(iii) permanently delete, or procure the permanent deletion of, that Confidential Information to the extent that the Confidential Information is contained on or recorded in any computer disk or electronic storage facility of any type that is in the possession, custody or control of the first-mentioned Party or a person authorised to receive that Confidential Information under clause 11.2(c).
(b) Clause 14.4(a) does to apply to the extent that a Party or any person authorised to receive the Confidential Information of the other Party under clause 11.2 is required to retain any such Confidential Information by any applicable Law or by any competent judicial, governmental, supervisory or regulatory body, or where the Confidential Information has been disclosed under clause 11.2(c).
14.5 Default Costs
If this Agreement is terminated under clauses 14.2(a), (b) or (c), the defaulting Party must indemnify the terminating Party, upon demand, for all Loss that the non-defaulting Party incurs as a result of the breach and enforcing its rights.
- FORCE MAJEURE
15.1 Force Majeure
The Service Provider is not liable for a delay or failure to perform its obligations during the time and to the extent that a Force Majeure prevents the Service Provider from performing its obligations.
15.2 Mitigation
(a) The Service Provider must use its reasonable endeavours to:
(i) avoid or remove the Force Majeure; and
(ii) to mitigate the effect of the Force Majeure.
(b) If the Force Majeure relates to a strike, a Party is not obliged to pay undue amounts or accept commercially unreasonable terms to settle the strike.
(c) As soon as possible after the Force Majeure ends, the Service Provider must:
(i) notify the Client that the Force Majeure is over; and
(ii) resume performance of its obligations.
15.3 Termination because of Force Majeure
(a) If the Service Provider is unable to remove the Force Majeure within 90 days, the Client may terminate this Agreement.
(b) The Client or the Service Provider may terminate this Agreement without penalty, by giving notice terminating this Agreement to the Service Provider.
(c) For the termination of this Agreement under this clause to be effective, the Force Majeure must continue to the time that the relevant Party sends the termination notice.
15.4 Accrued Rights
Termination under this clause is without prejudice to any rights which have accrued to a Party before the date of termination.
15.5 Consequences of Termination of this Agreement
On termination:
(a) the Client must pay to the Service Provider the portion of the Service Fee and any other amounts, which are payable but unpaid;
(b) the Client must pay within 10 Business Days of the date of termination; and
(c) each Party must return the other Party’s Confidential Information.
- LEGAL RELATIONSHIP
(a) The Service Provider:
(i) enters into this Agreement as an independent contractor; and
(ii) retains ultimate responsibility for the management and direction of the provision of the Services.
(b) This Agreement does not create a relationship, including a relationship of principal and agent, employer and employee, partnership or joint venture between the Parties or the Client and a Virtual Assistant.
(c) The Client’s employees, contractors, agents and sub-contractors:
(i) remain under the control of the Client; and
(ii) are not agents or employees of the Service Provider.
(d) The Virtual Assistant remains under the control of the Service Provider but is not an agent or employee of the Service Provider.
(e) Neither Party may:
(i) assume or create obligations of any kind for the other Party;
(ii) make representations or warranties whether express or implied on behalf of the other Party; nor
(iii) bind the other Party in any way.
- TAXES, COSTS AND EXPENSES
Each Party must pay its own legal and other costs and expenses in relation to preparation and execution of this Agreement and any related document.
- MISCELLANEOUS PROVISIONS
18.1 Governing law and jurisdiction
(a) This Agreement is governed by the laws of the United Kingdom, without giving effect to conflict of law considerations.
(b) The Parties submit to the exclusive jurisdiction of the courts of London United Kingdom, the Supreme Court of United Kingdom and the High Court of Justice (as applicable).
(c) A dispute or legal proceedings in relation to this Agreement must be held in London, United Kingdom.
18.2 Variation
The Parties can vary this Agreement only if the variation is in writing and signed by each of the Parties.
18.3 Assignment, novation or transfer
A Party must obtain the prior written consent of the other Party before the first-mentioned Party transfers, assigns or novates a right or obligation under this Agreement.
18.4 Cumulative rights
A Party’s rights under this Agreement are in addition to its rights at Law.
18.5 Severance
(a) Subject to clause 18.5(b), if any provision of this Agreement is invalid, illegal or unenforceable, that provision must be severed from and ignored in the interpretation of this Agreement to the minimum extent necessary and to the intent that the remaining provisions of this Agreement remain in full force and effect.
(b) Any provision of this Agreement or any right, power, authority, discretion or remedy of a Party under this Agreement which is:
(i) which is prohibited in a jurisdiction, is ineffective in that jurisdiction only to the extent of that prohibition; or
(ii) invalid, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
(c) The application of clause 18.5 is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.
18.6 Waiver
(a) A Party granting a waiver of a right under this Agreement must give written notice of that waiver to the Party which benefits from the waiver.
(b) A Party’s failure, partial failure or delay in exercising a right relating to this Agreement is not a waiver of that right.
(c) A Party may not claim that another Party’s delay or failure to exercise a right relating to this Agreement constitutes a waiver of that right or is a defence to its own action or inaction.
(d) The Parties may not waive or vary this clause 18.6.
18.7 Entire agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, undertakings and agreements in relation to the subject matter of this Agreement.
18.8 Survival
(a) Each indemnity or warranty expressly stated in this Agreement survives the performance of obligations relating to this Agreement and the termination of this Agreement.
(b) To the extent that a Party has not satisfied an obligation under this Agreement or that obligation is a continuing obligation, that obligation survives the termination of this Agreement.
18.9 Specific performance
The Parties agree that damages for breach of any obligations in relation to this Agreement are inadequate and a Party is entitled to specific performance or injunctive relief or both.
18.10 Further assurance
Each Party at its own expense must do everything necessary to give full effect to this Agreement.
18.11 No merger
A Party’s rights and obligations do not merge on the execution or completion of this Agreement or the completion of a transaction under this Agreement.
18.12 No representations
Subject to the express provisions in this Agreement:
(a) neither a Party nor its representative has made any representation to another Party to induce that other Party to enter into this Agreement; and
(b) neither a Party nor a person acting on a Party’s behalf was induced to enter into this Agreement by relying on a representation that another Party has made.
18.13 Indemnities
It is not necessary for a Party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
18.14 Costs
Each Party must bear its legal costs and other expenses that may be payable in relation to this Agreement and of any instrument or thing incidental to or required by this Agreement to be executed or done, unless expressly stated otherwise under this Agreement.
18.15 Notices
(a) Each communication (including each notice, consent, approval, request and demand) given by a Party to another Party in relation to this Agreement:
(i) must be in writing and in the English language;
(ii) must be addressed to the recipient Party using the contact details of the recipient Party specified in this Agreement or as otherwise notified by the recipient Party to each other Party from time to time;
(iii) must be signed by the Party making it or by that Party’s lawyer, attorney, director, secretary or authorised agent;
(iv) must be delivered by hand, sent by prepaid post, sent by facsimile or sent by email to the recipient Party at the address or using the contact details specified in this Agreement; and
(v) is taken to be received by the recipient Party:
(A) in the case of delivery by hand, upon delivery
(B) in the case of prepaid post sent to a recipient Party in the same country as the sending Party, on the 3rd day after the date of posting;
(C) in the case of prepaid post sent to a recipient Party in another country to the sending Party, on the 7th day after the date of posting;
(D) in the case of facsimile transmission, at the time in the place to which it is sent equivalent to the time shown on the transmission confirmation report produced by the facsimile machine from which it was sent; or
(E) in the case of email, at the time it is delivered to the recipient Party’s host server.
(b) Notwithstanding clause 18.15(a)(v), if a communication given under clause 18.15(a) is taken to be received on a day that is not a Business Day or after 5.00pm in the place where the communication is received, it will be taken to be received at 9.00am on the next Business Day.
18.16 Counterparts
(a) This Agreement may be executed in any number of counterparts which taken together are one and the same document.
(b) This Agreement is binding on the Parties on the exchange of counterparts.
(c) A copy of an entire signed counterpart sent by facsimile or email must be treated as an original counterpart.
Contact Us
If you have any questions, concerns or complaints about this, please contact us:
- By email: support@workspaceco.com.au
- By visiting this page on our website: www.workspacecooutsourcing.com