These General Terms apply to all Statements of Work and Specific Services Terms you agree to with us, which may relate to:
Each Specific Services Terms will set out the specific provisions which apply to our performance of those specific Services and will be provided to you along with the Statement of Work.
Each Statement of Work will set out the commercial details that we are agreeing to with you on that particular occasion, and specify which SST applies to that SOW.
By signing any Statement of Work, you agree to be bound by “this agreement” which includes these General Terms and the relevant SST identified in the SOW.
(a) Your agreement with us consists of:
(i) the applicable Statement of Work; (ii) the applicable Specific Services Terms; and (iii) these General Terms.
(b) In the event of any inconsistency between the documents forming this agreement, the
documents will take the order of precedence in which they are listed above.
(c) However, if a Statement of Work sets out any special conditions, those special conditions
will have ultimate precedence over all other relevant terms of our agreement with you to
the extent of any inconsistency.
(a) The parties may agree to any number of Statements of Work under these General
Terms.
(b) These General Terms will apply to all Statements of Work agreed between the parties.
(c) An additional Specific Services Terms will not limit or otherwise affect any other current Statements of Work between the parties.
(a)The parties may agree to change a Statement of Work in accordance with this clause 2.2.
(b)The Client must pay a ‘change in scope fee’, in an amount reasonably determined by MySkillBooks (Change Fee), for changes to Services requested by the Client which alter the scope set out in the relevant Statement of Work and require MySkillBooks to perform
additional work or incur additional costs (Changes).
(c) Unless otherwise agreed in writing, MySkillBooks may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
(d) MySkillBooks will only be required to perform Changes, if:
2.3 KEY DATES AND TIMES
(a) The Key Dates and / or Times set out in a Statement of Work in relation to the Services
are indicative only and included as a guide for when the Services are expected to be
performed.
(b) MySkillBooks may, due to various reasons beyond its control, need to make reasonable
adjustments to the Key Dates and / or Times. MySkillBooks will notify the Client if more
than a 48-hour variation is required.
2.4 SUBCONTRACTORS
(a) MySkillBooks may subcontract any part of the Services to a third party with the prior written consent of the Client.
(b) MySkillBooks will be responsible to the Client for the subcontracted Services, and for the acts and omissions of its subcontractors.
2.5 THIRD PARTY TERMS AND CONDITIONS
(a) At times, we may use third party services or content in the performance of our Services.
(b) We will notify you if any third-party terms apply to our Services.
(a) The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out
in a Statement of Work.
(b) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth)
any Fees paid in accordance with this agreement are non-refundable.
(c) If there is no Due Date set out in a Statement of Work in relation to a Fee, that Fee must
be paid at the time set out the relevant invoice issued by MySkillBooks.
MySkillBooks reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in accordance with clause 3.1
In each Statement of Work, the parties will agree any expenses that will be charged to the Client, where such expenses may include:
(a) travel, accommodation, and related expenses reasonably incurred by MySkillBooks in connection with the Services; and
(b) any third-party costs incurred by MySkillBooks in the course of performing the Services.
3.6 GST
Unless otherwise indicated, amounts stated in a Statement of Work do not include GST. In relation to any GST payable for a taxable supply by MySkillBooks, the Client must pay the GST subject to MySkillBooks providing a tax invoice.
3.7 CARD SURCHARGES
MySkillBooks reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
The Client agrees to provide MySkillBooks with access to:
(a) the Client’s premises and personnel, to the extent required to perform the Services; and
(b) any other third party or other accounts used by the Client (including login details and
passwords),
as reasonably required by MySkillBooks to perform the Services.
4.3 PROVIDE EQUIPMENT
If a Statement of Work states that the Client is required to provide MySkillBooks with any computers or other items for the purpose of performing the Services (Equipment), MySkillBooks will be responsible for that Equipment while it is in MySkillBooks possession or control. However,
the Client must hold insurance over all Equipment which will respond to damage, loss or destruction causes by MySkillBooks. MySkillBooks will return the Equipment on demand by the Client or upon termination of this agreement.
The Client must provide MySkillBooks with reasonable training on the Client’s health and safety, data handling, security, social media policy and all other policies and procedures relevant to MySkillBooks’ performance of the Services.
(a) When complete, MySkillBooks will notify the Client that the Deliverable is ready for review.
(b) The Client may review each Deliverable to confirm that the Deliverable complies with the description in the Key Details.
(c) MySkillBooks will provide reasonable assistance to the Client to enable them to conduct their review of the Deliverable.
(d) The Client may request reasonable amendments to a Deliverable if a Deliverable does not substantially conform to the requirements set out in the relevant Statement of Work.
(e) Once the amendments are complete, the Deliverable will be deemed to be accepted by
the Client and payment of the Fees will be due.
(a) The parties must comply with:
(b) MySkillBooks will keep the Client informed of any changes to privacy policy during the
term.
The parties will not, during, or at any time after, the Term, disclose Confidential Information
directly or indirectly to any third party, except:
(a) with the other party’s prior written consent.
(b) as required by Law; or
(c) to their Personnel on a need-to-know basis for the purposes of performing its
obligations under this agreement (Additional Disclosees).
If either party becomes aware of a suspected or actual breach of clause 6.2 by that party or an Additional Disclose, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of clause 6.2.
A party may only use the Confidential Information of the other party for the purposes of
exercising its rights or performing its obligations under this agreement.
6.5 RETURN
On termination or expiration of this agreement, each party must immediately return to the other
party, or (if requested by the other party) destroy, any documents or other Material in its
possession or control containing Confidential Information of the other party.
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on
the terms provided in this clause 5. Each party will, when requested by the other party, arrange
for an Additional Disclosee to execute a document in a form reasonably required by the other
party to protect Confidential Information.
7.1 OWNERSHIP OF MATERIALS
(a) The parties will each retain ownership of all Intellectual Property Rights in their respective Pre-Existing Materials.
(b) Subject to clause 7.1(c), MySkillBooks will own all Intellectual Property Rights in all Developed Materials, from the moment those Developed Materials are created.
(c) If there are any Pre-Existing Materials of the Client incorporated in the Developed Materials, the Client will continue to own the Intellectual Property Rights in any Pre- existing Materials that are incorporated in the Developed Materials and MySkillBooks will not commercialise those elements of the Developed Materials.
(d) All Developed Materials will be marked with a MySkillBooks Copyright notice, which must not be altered or removed.
7.2 LICENCE TO MATERIALS & RESTRICTIONS ON USE
(a) Licence to PM-P of Pre-Existing Material: To the extent necessary for MySkillBooks to perform the Services, the Client grants MySkillBooks a non-exclusive, revocable, worldwide, non-transferable and royalty-free licence to use, adapt and modify the Client’s Materials during the Term of this agreement for the purpose of performing the Services. MySkillBooks will not modify the Client’s Pre-Existing Materials unless necessary for the Services. This licence does not include a right to sublicense or commercialise the Client’s Pre-Existing Materials.
(b) Licence to Client of Developed Material: Unless otherwise stated in the scope of Services, MySkillBooks grants to the Client a single-use licence to any Developed Materials (and incorporated MySkillBooks Pre-Existing Materials) provided to the Client under this agreement, for the sole purpose of the Client enjoying the benefit of the Services. For all Materials provided to the Client, the Client must not:
(c) Additional Uses Royalty-Fees: If the Client wishes to do any activity restricted by clause 7.2(b), the Client must notify MySkillBooks giving details of the intended use case. If MySkillBooks agrees to the use case, the parties will agree to a royalty-fee payable to MySkillBooks.
7.3 THIRD PARTY MATERIALS
The Client acknowledges and agrees that:
(a) the Developed Materials may include Intellectual Property Rights owned by third parties and licensed to MySkillBooks under a separate agreement (Third Party IP);
(b) the ownership and licence restrictions in this clause 7 will apply to all Third-Party IP; and
(c) if the Client breaches this clause 7 which causes the owner of relevant Third-Party IP to seek damages, the Client will be liable for any losses caused by the Client’s breach.
The Services are made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot and do not represent, warrant, or guarantee that:
(a) the Services will be free from errors or defects.
(b) the Services will be accessible at all times.
(c) information you receive or supply through the Services will be secure or confidential; or
(d) any information provided through the Services is accurate or true.
Each party acknowledges that the other party may be required to report under the Modern Slavery Act 2018 (Cth). In performing its obligations under the agreement, each party must:
(a) ensure that it conducts its business in a manner that is consistent with its own modern slavery policy and procedures, as amended from time to time.
(b) ensure that it always complies with all applicable modern slavery laws, statutes, and regulations in force from time to time from the date of this agreement, including the Modern Slavery Act 2018 (Cth); and
(c) will not engage in any activity, practice, or conduct that would constitute an offence under Division 270 or Division 271 of the Schedule to the Criminal Code Act 1995 (Cth) if such activity, practice or conduct were carried out in Australia.
Each party will be solely responsible for and will indemnify and keep indemnified the other party (indemnified party) from and against all loss suffered or incurred by the indemnified party directly or indirectly in relation to the other party’s breach of the Modern Slavery Act 2018 (Cth).
The Client acknowledges and agrees that:
(a) any information provided to the Client as part of or in connection with the Services is general in nature and may not be suitable for the Client’s circumstances; and
(b) it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement, or repair) if there is a failure with the goods or services provided.
(a) MySkillBooks agrees that, for the duration of any Statement of Work and unless otherwise stated in the special conditions of a Statement of Work, it will affect and maintain the following insurances:
(a) (Liability) To the maximum extent permitted by applicable law, each party limits its liability to the other party (and any third parties who encounter the services or goods through the other party) in aggregate of all claims for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by MySkillBooks to an amount that is 2 times the amount paid by the Client to MySkillBooks under the relevant Statement of Work.
(b) (Indemnity) Each party indemnifies (indemnifying party) the other party and its employees, contractors, and agents (those indemnified) in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the indemnifying party) arising from the indemnifying party or its employee’s, client’s, contractor’s, or agent’s:
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will either party be liable to the other for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by MySkillBooks (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction.
(a) Either party may end this agreement for no reason, by providing notice to the other party.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) On the End Date, in relation to any Statements of Work agreed or on-foot, MySkillBooks will provide an invoice to the Client for:
any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
any pre-approved third-party costs MySkillBooks has incurred on the Client’s behalf up to the End Date; and
if terminated by the Client, MySkillBooks’ pre-estimated genuine losses result of the Client ending this agreement, being 50% of the Fees payable under the relevant Statement of Work,
(Together, the Outstanding Amounts).
(d) The Client will pay the Outstanding Amounts to MySkillBooks within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.
(e) Once the Outstanding Amounts have been paid, MySkillBooks will hand over any completed deliverables.
(f) If MySkillBooks terminates this agreement pursuant to this clause, MySkillBooks will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 15. The indemnities, warranties, and liability caps in clause 13 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 16.1 will not limit or otherwise affect MySkillBooks’ rights under this agreement, at law or otherwise in equity; MySkillBooks’ losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
15.3 OTHER CONSEQUENCES FOR TERMINATION
If this agreement ends, in addition to the specific consequences set out in clause 16.1 or 16.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party.
(b) comply with all obligations that are by their nature intended to survive the end of this agreement; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 7.
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion, or fire.
strike or other industrial action.
war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
reasonable details of the Force Majeure Event; and
so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 17(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Statement of Work and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
The relationship between MySkillBooks and the Client is that of a principal and an independent contractor. Nothing in these General Terms, any Specific Services Terms, or any Statement of Work constitutes or deems the Client to be an employee or agent of MySkillBooks.
In these General Terms, the following words and phrases have the following meaning:
Confidential Information
Fees
Intellectual Property Rights
Material
New Material
Personnel
Services
Specific Services Terms
20.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
This agreement may only be amended in accordance with a written agreement between the parties.
No party to this agreement may rely on any words or conduct of another party as a waiver of any right, power, or remedy unless the waiver is in writing and signed by the party granting it.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate, or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
20.9 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing, and performing this agreement.
20.10 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (Singular and plural) words in the singular include the plural and vice versa.
(b) (Gender) words indicating any gender include all other genders.
(c) (Defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.
(d) (Person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, authority, association, consortium, joint venture (whether incorporated or unincorporated), partnership, trust, or any other entity.
(e) (Party) a reference to a party includes that party’s executors, administrators, successors, and permitted assigns, including persons taking by way of novation, and in the case of a trustee, includes any substituted or additional trustee.
(f) (This agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment, or annexure is a reference to that part of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments, and annexures.
(g) (Document) a reference to a document (including this agreement) is to that document as varied, novated, ratified, or replaced from time to time.
(h) (Headings) headings and words in bold type are for convenience only and do not affect interpretation.
(i) (Includes) the word “includes” and similar expressions in any form are not words of limitation.
(j) (Adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
(k) (Currency) a reference to “$” or “dollar” is to Australian currency, unless otherwise agreed in writing.
Should you have any concerns in relation to our collection and/or processing of your Personal Data, then please contact us via email
us contact@MySkillBooks.com.
MySkillbooks Team: 1300079010