Supply terms of agreement for Waymaker Suppliers

Last updated: 1/03/2021

1    Agreed terms

1.1    Definitions

1.1.1   In this Agreement, the following definitions apply:

Agreement means the clauses and Schedules to this document.

Confidential Information means information, including any of the following information (whenever it was obtained) in relation to the Company’s, or a Related Person’s or a Customer’s:

• business, operations or strategies;
• the terms of this Agreement or Schedules;
• information designated as confidential by a Party;
• information acquired by the other Party solely by virtue of provisions of this Agreement;
• Intellectual Property Rights or other property; and
• actual or prospective customers, companies or competitors.

Information is not confidential in any of the following circumstances:

• it is in the public domain, unless it came into the public domain by a breach of confidentiality;
• it is already known by the other Person at the time this Agreement is entered into; or
• it is obtained lawfully from a third party without any breach of confidentiality.

Company’s Authorised Representative is the person nominated by notice from the Company to the Supplier from time to time.

Customer means a person, business, government department or corporation which engages the Company for the provision of goods or services.

Deliverables means all work product first created by the Supplier for delivery to the Company or a Company in connection with the performance of the Supplier’s obligations under this Agreement and includes computer programs) and Development Materials.  Deliverables may include third-party software or related documentation licensed directly to the Supplier or Company or Company from a third party, or any modifications, enhancements or derivatives of that software or documentation, each of which will be owned and will continue to be owned by the third party.

Development Materials includes (without limitation) all programming aids and tools, documentation, audio and video files, reports, data, designs, concepts, know-how, documentation explaining the operation of the computer program and all other information created or used in the creation of software.  The Development Materials also include such statements of principles of operation and schematics as well as any pertinent commentary, explanation, program (including compilers), tools, and any other material used for the development, maintenance, implementation or use of the software so that a trained computer programmer could develop, maintain, enhance, modify, support, compile and use all releases or separate versions of the software. The Supplier may identify Development Materials in a Statement of Work s signed by the Company or notice to the Company from time to time.

Insurance Threshold has the meaning given in Schedule 1 of this Agreement or a Statement of Work s signed by the Company.

Intellectual Property Rights means any and all current and future legal and/or equitable interests and rights in all patents, inventions, design rights, trade marks, service marks, know-how, trade secrets, domain names, internet addresses, rights in confidential information, copyright and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same now or in the future.

Moral Rights means any creative rights in software created as part of the Deliverables.

Party means a party to this Agreement.

Person means a natural person, body corporate or other legal entity but also includes a partnership, trust or other entity which is not a legal person.

Related Person means an associate of the Person for the purposes of sections 11 to 16 of the Corporations Act 2001 (Cth).

Purchase Order means the document and/or number provided by the Company to the Supplier which formally approves the Statement of Work.

Services means the services to be provided by the Supplier as described in Schedule 1 or a Statement of Work s signed by the Company.

Statement of Work or SOW means the Statement of Work s agreed by the parties.

Tax and Taxation means each of the following:

• All forms of taxation, duties, imposts, fees, levies, deductions or withholdings, whether of Australia or elsewhere, including income tax, fringe benefits tax, withholding tax, capital gains tax, PAYG, superannuation guarantee payments, GST, customs and other import or export duties, excise duties, sales tax, payroll tax, stamp duty or other similar contributions.
• Any interest or penalty, in connection with it.

2 Operative provisions

2.1 Engagement and provision of Services

2.1.1 Engagement of the Supplier

2.1.1.1 The Company engages the Supplier to provide the Services specified in the Statement of Work on the terms and conditions set out in this agreement.
2.1.1.2 The process by which a supplier is engaged is as follows:
2.1.1.3 The supplier completes the supplier application at Waymaker.io/supply as directed by its primary contact with Waymaker.io
2.1.1.4 On submitting the Supply application, the Supplier accepts the Supply Terms of Agreement (these terms)
2.1.1.5 The Supplier will then supply a Statement of Work to the primary contact.
2.1.1.6 The Statement of Work will clearly show the objective deliverables and the payment milestones which can be aligned with objective deliverables.
2.1.1.7 The primary contact at Waymaker.io will approve the Statement of Work by providing a Purchase Order certificate or number.
2.1.1.8 The Supplier accepts the engagement and is engaged under the Supply Terms of Agreement (these terms).

2.1.2 Time for provision of the Services

2.1.2.1 The Services are to be provided subject to the availability of the Supplier and its employees and subject to the issuing of a Statement of Work and the company issuing a purchase order for the approval of the works to commence.

2.1.3 The Company may direct priority of tasks, Customers and order

2.1.3.1 The company requires a Statement of Work to be provided with clarity of objective outcome and payment milestones aligned to objectives outcomes that can be approved by the Company as satisfactorily delivered.
2.1.3.2 The Company may request the Supplier to prioritise certain tasks, Customers and the order in which they are to be performed in providing the Services. The Supplier will act based on a direction providing it is reasonable and does not compromise the quality of the Services or the requirements of the Customers.

2.1.4 Provision of the Services

2.1.4.1 The Supplier will provide the Services with all due skill, care and diligence, and in accordance with accepted professional and business practices, to the reasonable satisfaction of the Customer in a timely and efficient manner.
2.1.4.2 The Supplier will also comply with each of the following:
2.1.4.2.1 All laws, procedures, standards and codes of practice that apply in relation to the Services;
2.1.4.2.2 All requirements and directions of any government body or agency;
2.1.4.2.3 All reasonable and lawful directions of the Company that are consistent with the terms of this Agreement;
2.1.4.2.4 All procedures and protocols published by the Company during the Term.

2.1.5 Supplier’s staff and delegation

2.1.5.1 The Supplier may delegate the provision of part or all of the Services to another Person, providing this delegation does not have an adverse impact on the service quality, the output of Deliverables and is conditional on the Person executing an agreement on the same terms as this Agreement and complying with these terms. The prior written consent is required from the Company prior to any delegation of the Services. That consent may be withheld at the Company’s absolute discretion.

2.1.6 Payment

2.1.6.1 The Supplier will be paid by the Company at the rate set out in the Statement of Work upon a timeline clearly outlined within the Statement of Work. Payment schedules in the Statement of Work must aligned to objective outcomes with a deliverable that can be approved by the Company.

2.1.7 Method of payment

2.1.7.1 The Supplier may submit tax invoices for payment for the Statement of Work or as agreed in writing. The parties may agree in writing to use recipient created tax invoices during the Term.
2.1.7.2 The invoices will set out the amount of the GST payable by the Company, specify the Services performed, the objective payment milestone met and the fee payable for the performance of the Services. Unless otherwise agreed in writing by the parties, the Company will pay the invoice within 30 days of receipt.

2.1.8 Input tax credits and GST in relation to indemnity or reimbursement

2.1.8.1 If a Party is required under this Agreement to indemnify another Party or make a reimbursement to another Party, and that other Party can obtain an input tax credit on an acquisition associated with that indemnity or reimbursement, the amount the Party is required to pay is:
2.1.8.1.1 reduced by the amount of that input tax credit; but
2.1.8.1.2 increased by any GST payable by that other Party in respect of that reimbursement.

2.1.9 Expenses

2.1.9.1 The Supplier will be responsible for the payment of all expenses incurred by the Supplier in providing the Services, except for those expenses which have been approved by the Company in writing prior to the expense being incurred or during the Term agreed in writing by a company director of the Company.

2.1.10 Payment not wages or salary

2.1.10.1 Payments made by the Company to the Supplier are not wages or salary. The parties acknowledge that:
1.1.1..1.1 The Supplier is not entitled to any payment from the Company for annual leave, sick leave, severance pay, long service leave, superannuation or any other entitlement which an employee has in respect of his or her employment.
1.1.1..1.2 The Supplier accepts full and exclusive responsibility for the payment of all Taxes payable in respect of the Services or the payments received by the Supplier.
1.1.1..1.3 The Supplier will pay the Person and all the Supplier’s own employees, contractors and agents and must make any Taxation or other deductions required by law.

2.1.11 Independent contractual relationship

2.1.11.1 The relationship between the Company and the Supplier is the relationship of principal and independent service provider.

2.1.12 Support for the Services

2.1.12.1 The Company may provide the Supplier with the equipment or services specified in Schedule 1, in addition to access to such systems, software and premises of the Company to enable the Services to be provided in a timely and efficient manner. If there is no reference to the supply of materials in the Statement of Work s then the Supplier will not require supply of systems, software and access to the premises.
2.1.12.2 The Supplier will provide, at the Supplier’s expense, all other equipment required to perform the Services (excluding equipment supplied by the Company or Customer for software testing purposes).
2.1.12.3 When providing equipment under this clause 1.15 the Supplier will take all reasonable and necessary steps to ensure that its equipment, software and systems are compatible with the Company’s information computer technology systems and do not contain viruses or permit viruses to access the information computer technology systems of the Company. Maintaining software security certification will be at the cost of the Supplier where these certifications are specified by the Company in the Schedule 1 or the Statement of Work s or as applicable to the Services from time to time.

2.1.13 Exclusivity

2.1.13.1 The Company acknowledges that the Services provided by the Supplier under this Agreement are not exclusive to the Company or to the Customers unless noted in the Schedule. Where the services are provided exclusively then the Supplier will ensure that the provisions of this Agreement and the processes of the Company are adhered with and it will not provide the Services to any unauthorised party without the prior written consent of the Company.
2.1.13.2 If the Supplier provides services to a customer in the same or related industry as the Company then it will promptly notify the Company and take all reasonable and necessary steps that are appropriate to avoid a conflict of interest, which include the measures identified in clause 1.19.
2.1.13.3 Where a conflict or potential conflict of interest exists or arises the Supplier will promptly notify the Company of the conflict or potential conflict and all appropriate facts and circumstances relating to the conflict or potential conflict. The Company and the Supplier will act in good faith and attempt to minimise the risk of damage that could be caused to the parties or a third party from the conflict of interest. The Company may request that the Supplier take enhanced internal measures to ensure that employees, contractors or agents comply with the confidentiality and data security obligations of this Agreement and the Supplier takes reasonable and necessary steps to ensure there is no unauthorised access to the Confidential Information. Where the Company has a conflict of interest resolution policy or procedure the parties agree to comply with this policy or procedure.

2.1.14 Intellectual Property

2.1.14.1 The Supplier agrees to assign to the Company all Intellectual Property Rights and Moral Rights to the Deliverables and the Development Materials. Where the Services require the Supplier to upload Confidential Information or Development Materials to a code or file repository maintained by or for the Company then the act of uploading the Confidential Information or Development Materials will constitute the surrender of all Intellectual Property Rights and Moral Rights.
2.1.14.2 The Company may licence, supply or resell all Deliverables and Development Materials produced by the Supplier in accordance with or incidental to providing the Services under this Agreement at its absolute discretion.
2.1.14.3 To the extent that any pre-existing materials of the Company are contained in the Deliverables, the Company will retain ownership of such pre-existing materials (subject to the Company identifying those materials and obtaining the Supplier’s prior written consent to retaining ownership in them). The Company may grant to the Supplier a licence to exercise certain Intellectual Property Rights in such pre-existing materials and the Deliverables and Development Materials for the purposes of providing the Services and subject to such conditions as the Company may consider appropriate (which may include granting the right to sub-licence the software rights to a third party or may be a perpetual, irrevocable, transferable, worldwide and royalty-free licence to use the Intellectual Property). The parties acknowledge and agree that the interests of the Company take priority over those of the Supplier.
2.1.14.4 The Supplier may be required by the Company to obtain from each person who provides the Services or who works or has worked on the Deliverables, or otherwise in respect of any work undertaken in respect of this Agreement and the Services, whether or not such as person is an employee of the Supplier or the Company, a valid consent to any act or omission that, without this consent, would be an infringement of a Moral Right under Part IX of the Copyright Act 1968. This agreement is acknowledged by the parties to be an effective consent under Part IX of the Copyright Act 1968 in respect of the materials developed by the Supplier, the Person or the Supplier’s employees, contractors or agents.

2.1.15 Confidentiality & data security obligations

2.1.15.1 The parties must not use, copy, disclose, reproduce or make public the Confidential Information of the other party for any purpose except in accordance with this Agreement. The parties will ensure that its employees, contractors or agents do not do anything that would breach this clause.
2.1.15.2 If a party becomes aware of a breach of this obligation, that will immediately notify the other party and assist the other party in good faith to determine the scope of the breach and the actions immediately necessary to minimise the scope of the breach and the damage to the parties.
2.1.15.3 The parties will not disclose any of the other parties’ Confidential Information unless one of the following circumstances applies:
2.1.15.4 The party owning the Confidential Information has consented in writing to the disclosure. The consent may be subject to the condition that the Person to whom the disclosure is to be made enters into a separate confidentiality agreement.
2.1.15.5 The disclosure is specifically contemplated and permitted by this Agreement.
2.1.15.6 The disclosure is to a Company or a Related Person providing the Company or Related Person agrees to keep the information confidential.
2.1.15.7 The disclosure is to the Supplier’s employees, contractors or agents to the extent they need to know the Confidential Information in order to perform a function in connection with this Agreement. The Supplier must ensure that its employees, contractors or agents comply with the terms of this clause.
2.1.15.8 The disclosure is required by a court, a binding directive of a governmental or administrative authority or to comply with any applicable law.
2.1.15.9 The disclosure is required by virtue of the law or regulations that govern a relevant stock exchange.
2.1.15.10 All obligations of confidence set out in this Agreement continue in full force and effect after this Agreement ends.
2.1.15.11 Nothing in this clause will prevent the Supplier or the Company from using ideas and know-how gained during the performance of this Agreement in the furtherance of its normal business, to the extent that this does not relate to a disclosure of Confidential Information or an infringement by the Company or the Supplier of any Intellectual Property Rights.
2.1.15.12 When providing the Services the Supplier will take all reasonable and necessary steps to ensure that no viruses or unauthorised access is permitted to the Company’s information computer technology systems (including all Confidential Information contained in systems to which the Supplier has access as part of providing the Services). The Supplier will ensure that all technology that is used does not contain viruses or permit viruses to access the information computer technology systems of the Company. The Supplier will promptly and diligently comply with all data security processes and procedures of the Company as published from time to time during the term and any specific requirements applicable to the Statement of Work s which applies to the engagement.
2.1.15.13 The Company may at any time require the Supplier’s employees, contractors or agents to give written undertakings in a form prepared by the Company relating to the non‑disclosure of the Company’s or the Customer’s Confidential Information and the Supplier will arrange for all such undertakings to be given promptly. These terms may be in a form materially similar to the confidentiality and data security obligations of this Agreement.

2.2 Insurance and indemnity

2.2.1 Insurance

2.2.1.1 The Supplier will arrange and maintain such insurance as the Company deems appropriate in relation to:
2.2.1.1.1 Any liability which the Company or the Supplier may incur in relation to the provision of the Services, including professional indemnity insurance and public liability insurance. The extent of insurance will be at the discretion of the Company as detailed in Schedule 1 or the Statement of Work s; and
2.2.1.1.2 Any liability which the Supplier may incur in relation to the Supplier’s obligations under this Agreement.

2.2.2 Details of insurance cover

2.2.2.1 The insurance will provide cover to the Supplier for the Term the Supplier is providing the Services. Where the liability of the Services exceeds the an Insurance Threshold specified in a Statement of Work then the Company may request to be named as an interested party in the insurance policy of the Supplier.
2.2.2.2 The Supplier will promptly give the Company a copy of the current insurance policy if the Company requests it in addition to any policy wording applicable to the insurance maintained by the Supplier.
2.2.2.3 If stipulated in a Statement of Work, the Company may require the Supplier to maintain run-off insurance cover for a period of up to six (6) years after the Term ends. The Supplier will be required to comply with the terms of clauses 2.2 and 2.3 for the entire run-off period.

2.2.3 Supplier’s indemnity

2.2.3.1 The Supplier will indemnify the Company and its officers, employees and agents, against any claim or proceeding, and against any liability, loss or expense (including legal costs on a full indemnity basis) brought by a Customer or anyone for whom the Company is responsible arising out of any wrongful, unlawful or negligent act or omission of the Supplier or anyone for whom the Supplier is responsible. This indemnity survives termination of the Agreement including for the entire duration of any runoff period applicable in clause 2.4.

2.2.4 Company’s indemnity

2.2.4.1 The Company will indemnify the Supplier and its officers, employees and agents, against any claim or proceeding, and against any liability, loss or expense (including legal costs on a full indemnity basis) brought by a Customer or anyone for whom the Company is responsible arising out of any wrongful, unlawful or negligent act or omission of the Company or anyone for whom the Company is responsible.

2.2.5 Supplier’s duty in relation to Tax payments

2.2.5.1 The Supplier will make on time all Taxation payments required in relation to the Supplier’s business, the provision of the Services, or the Supplier’s employees, contractors and agents.

2.3 Termination

2.3.1 Termination due to unsatisfactory performance

2.3.1.1 Either party may give a written notice to the other party (Defaulting Party) specifying the problems (including any breaches of this Agreement) and requiring the Defaulting Party to resolve the subject of the problems within the period of time specified in the notice of no less than fourteen (14) days (Default Notice).
2.3.1.2 If the Defaulting Party fails to comply with the Default Notice, the Agreement may be immediately terminated by the party issuing the Default Notice (Non-defaulting Party) by giving written notice at the expiry of the term in clause 1.3.1.1.
2.3.1.3 The Company may request that the Supplier discontinue the provision of the Services at any time during this period of notice. If the Company does so, it may be liable to make payments to the Supplier in lieu of the notice period subject to any rights of setoff which may exist in relation to a breach of the Agreement by the Supplier causing loss or damage to the Company.

2.3.2 Termination on notice

2.3.2.1 Either party may terminate this Agreement without cause by giving prior written notice of thirty (30) days to the other party. The Company may request that the Supplier discontinue the provision of the Services at any time during this period of notice. If the Company does so, it will be liable to make payments to the Supplier in lieu of the notice period.

2.3.3 Delivery of materials and records on termination or end of engagement
2.3.3.1 If this Agreement is terminated or where the engagement identified in the Statement of Work ends, the Supplier must immediately return all of the Company’s equipment used by the Supplier in the provision of the Services. The Supplier must also immediately deliver to the Company all Deliverables or Development Materials relating to the affairs of the Company that are in the possession of the Contractor. The Contractor must not keep a copy of any of the Deliverables or Development Materials relating to an engagement in a Statement of Work unless agreed in writing by the Company.
2.3.3.2 If this Agreement is terminated or where the engagement identified in the Statement of Work s ends, the Supplier agrees to act in good faith and cooperate with the Company to ensure the terms of this Agreement are complied with by the Supplier.

2.4 Miscellaneous

2.4.1 Assignment

The Supplier will not assign any of its rights under this Agreement except with the prior written consent of the Company. That consent may be withheld at the party’s absolute discretion.

2.4.2 Survival

Clauses 1.20 to 1.30 (inclusive), 2.1 to 2.7, 3.5 and 3.6 and 4.2, 4.3, 4.4, 4.7 to 4.10 and 4.12 and 4.13 of this agreement survive termination.

2.4.3 Non-Compete

2.4.3.1 The Supplier agrees that for the duration of the Agreement and for a period of no less than twelve (12) months following the expiry or termination of the Agreement, not to:
2.4.3.1.1 attempt to encourage any of the Customers, employees, agents, contractors or suppliers with whom the Supplier has dealt pursuant to this Agreement, to terminate or restrict their trade or contractual relations with the Company; or
2.4.3.1.2 attempt to solicit or make contact with any of the Customers, employees, agents, contractors or suppliers with whom the Supplier has dealt with pursuant to this Agreement or has gained access during the course of the Term, without obtaining the prior written consent of the Company.
2.4.3.2 The parties acknowledge that the terms of this restraint are fair and reasonable in the circumstances of this Agreement. The terms of the restraint are intended to protect the Company’s business and the Customer relationships of the Company. Where the nature of the Services are for the provision of important outsourced functions, or for the Supplier to assist generate growth in the Customers of the Company or where the Company is investing time and resources under this Agreement to grow its Customers and should the Supplier breach or take steps to breach the terms of this restraint then the Supplier acknowledges that damages alone may not be appropriate recourse and that declaratory or injunctive relief may be appropriate to be sought by the Company to prohibit a breach or potential breach of this clause.

2.5 Entire agreement

2.5.1.1 This Agreement contains the entire agreement of the parties in relation to this transaction. Neither party can rely on an earlier agreement, understanding or negotiation on the same subject matter before or after this Agreement was executed.
2.5.1.2 This Agreement comprises the following:
2.5.1.2.1 Statement of Work provided agreed by the parties which outlines the objective deliverable items and the payment milestones;
2.5.1.2.2 The purchase order provided by the Company to the Supplier upon and agreed Statement of Work
2.5.1.2.3 Terms and conditions of this Agreement; and
2.5.1.2.4 Policies and procedures published by the Company from time to time during the term and made available to the supplier.
2.5.1.2.5 If there is any conflict or inconsistency in terms then the applicable terms are in the descending order of priority.

2.5.2 Governing law and jurisdiction

2.5.2.1 This Agreement is governed by the law of Queensland, Australia.

2.5.3 No waiver

2.5.3.1 The fact that the Company fails to do, or delays doing, something the Company is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, the Supplier. A waiver by the Company is only effective if it is in writing.
2.5.3.2 A written waiver by the Company is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach, or as an implied waiver of that obligation or breach in relation to any other occasion.

2.5.4 Severability

2.5.4.1 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable, invalid or unreasonable, but can also be read in a way that makes it legal, enforceable, valid or reasonable, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.

2.5.5 Variation

2.5.5.1 This Agreement may be updated at any time by the Company.

2.5.6 Capacity

2.5.6.1 Each party represents and warrants to each other party that:
2.5.6.1.1 it is validly existing under the laws of its place of incorporation or registration;
2.5.6.1.2 it has the power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement;
2.5.6.1.3 it has taken all necessary action to authorise its entry into and performance of this agreement and to carry out the transactions contemplated by this agreement;
2.5.6.1.4 its obligations under this agreement are valid and binding and enforceable against it in accordance with their terms; and
2.5.6.1.5 the execution, delivery and performance by it of this agreement (and any other agreement required to be entered into by it in connection with this agreement) will not, subject to satisfaction of the Conditions:
2.5.6.1.5.1 result in a breach of, or constitute a default under, any agreement or arrangement to which it is party or by which it is bound; or
2.5.6.1.5.2 result in a breach of any law or order, judgment or decree of any court, governmental agency or regulatory body to which it is a party or by which it is bound.
2.5.6.2 The Supplier when entering into this Agreement as a trustee represents and warrants to the Company that the Supplier is the only trustee of the trust identified in the Schedule and that entering into this Agreement is not a breach of the powers of the trustee and enters into this agreement in the Supplier’s own capacity as well as the trustee of the trust and agrees to comply with the obligations of this Agreement in its own capacity.