RETAINER AGREEMENT – My HR Partner Peace of Mind HR On Demand Support & Advice

RETAINER AGREEMENT

THIS AGREEMENT is made by and between:

You

and

My HR Partner (ABN 30 644 527 015) of B204/56 Caloola Drive, Tweed Heads NSW 2485 (Consultant)

RECITALS

1. You wish to receive human resource advice services as set out in Schedule 1 (Consultancy Services).
2. The Consultant has the skills, background and experience in providing human resources management.
3. The Consultant is willing to provide the Consultancy Services and You are willing to appoint the Consultant to provide the Consultancy Services, all in accordance with the provisions of this Agreement.

1. Definitions and interpretation

1.1. Definitions

In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:

Claims means all demands, claims, proceedings, penalties, fines and liability (whethercriminal or civil, in contract, tort or otherwise);

Commencement Date means ;

Confidential Information includes any information marked as confidential and anyinformation received or developed by the Consultant during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by You in the course of Your business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;

Consultant’s Personnel means any person(s) that the Consultant designates toperform the Services on the Consultant’s behalf;

Facilities means facilities as required by the Consultant from time to time in performingthe Consultancy Services, in accordance with clause 6 of this Agreement;

Fee(s) means the fee as set out in Schedule 1;

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act1999 (Cth);

Intellectual Property includes trademarks, patents, copyrights, processes know-how,registered designs or other like rights or any right to apply for registration of any of the former;

Losses means all losses including financial losses, damages, legal costs and otherexpenses of any nature whatsoever;

Consultancy Services are set out on the Consultant’s Website;

Parties means the Consultant and You, and Party shall mean either one of them;

Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001(Cth);

Terms means these terms and conditions.

Termination Date means the earlier of:

• the date of termination of this Agreement by You or the Consultant; and

• the date of expiry of this Agreement.

1. 2. Interpretation

In this Agreement unless the context otherwise requires:

• words importing any gender include every gender;

• words importing the singular number include the plural number and vice versa;

• words importing persons include firms, companies and corporations and vice versa;

• references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;

• reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;

• any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

• the headings to the clauses and schedules of this Agreement are not to affect the interpretation;

• any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and

the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.

• Consultancy services
• The Consultant shall provide the Consultancy Services and as the Parties may agree from time to time to You in consideration for You paying the Fee to the Consultant, subject to the provisions of this Agreement.
• The Consultant and You agree that the Consultancy Services will be provided remotely unless otherwise specified.
• The Consultancy Services shall be performed by such employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services as agreed, from time to time by the Parties.
• The Consultancy Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Consultancy Services, and the Fee(s) shall be set out in Schedule 1.

• Location

The Consultant shall provide the Consultancy remotely unless otherwise agreed.

• Fee(s)

• In consideration of the provision of the Consultancy Services in accordance with this Agreement, You will pay the Consultant the Fee(s).

• You acknowledge that the Fee(s) shall be inclusive of any GST.
  • Any Fee(s) payable shall on a monthly in advance basis.

• The Consultant shall provide You with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4, and payment shall be made by You to the Consultant by way of a pre-authorised credit card deduction.

• The invoice referred to in paragraph (d) must include the following details before payment can be approved and forwarded:

• date of Consultancy Services;

• description of Consultancy Services provided;

• the ABN of the Consultant.

• The Consultant shall be entitled to vary the monthly rates during the term of this Agreement. Before implementing any such new rates, the Consultant shall provide them to You.

• The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including the expenses set out in Schedule 1 and as agreed by the Parties from time to time.
  • If You do not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Consultant shall be entitled to do any of the following:

• charge interest on the outstanding amount at the rate of 10% per year, accruing daily.

• require You to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed.

• not perform any further Consultancy Services (or any part of the Consultancy Services) until payment has been received.
  • If invoices are unpaid after the payment date, the Consultant has the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to the Consultant at your expense.
  • The Consultant reserves the right to report bad debts to independent credit data agencies.
  • When making a payment You shall quote relevant reference numbers and the invoice number.

• Consultant’s Personnel

• You may, at any time, if you have reasonable grounds which have been disclosed and discussed with the Consultant, by notice in writing to the Consultant, require the Consultant to cease to permit a particular person or persons employed by the Consultant or acting as agents of the Consultant to carry out the Consultancy Services.

• If You make the requirement referred to in paragraph (a), the Consultant must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of Your business and provide the services of an alternative person or persons as may be reasonably acceptable to You.

6.    Your obligations

• During the preparation of Schedule 1 and performance of the Consultancy Services You will:

• co-operate with the Consultant as the Consultant reasonably requires;

• provide the information and documentation that the Consultant reasonably requires;
  • ensure that the information You provide to the Consultant is true, correct and complete;

• make available to the Consultant such Facilities as the Consultant reasonably requires; and

• ensure that Your staff and agents co-operate with and assist the Consultant.

• You warrants that:
  • there are no legal restrictions preventing You from agreeing to this Agreement.
  • You will not infringe any third party rights in working with the Consultant and receiving the Consultancy Services.
  • You will inform the Consultant if You have reasonable concerns relating to the Consultant’s provision of Consultancy Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns.
  • You are responsible for obtaining any consents, licences and permissions from other parties necessary for the Consultancy Services to be provided, at your cost, and for providing the Consultant with the necessary consents, licences and permissions.
  • You will use the Consultancy Services for personal use only and will not share the Consultancy Services to any third party that is not Party to this Agreement.
  • You agree and acknowledge that as part of the Consultancy Services You may be provided with templates and that these templates have not been legally drafted and tailored for You and that You should seek independent legal advice in this regard.
  • You agree and acknowledge that the information contained in any fact sheets are provided as general information only and should not be relied on as a substitute for professional legal advice.
  • You will not employ, canvass, solicit, entice, induce or attempt to employ the Consultants employees or contractors.

• You will not charge for the Consultant’s use of the Facilities made available by You.

• If You do not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Consultant will be paid by You.

• No partnership or employment relationship

Nothing in this Agreement constitutes the relationship of employer and employee

between You and the Consultant or between You and the Consultant’s Personnel. It is the express intention of the parties that any such relationships are denied.

• Use of subcontractors

• The Consultant is permitted to use other persons to provide some or all of the Consultancy Services.

• The Consultant shall be responsible for the work of any of the Consultant’s subcontractors.

• Subject to paragraph (d), any work undertaken by any of the Consultant’s subcontractors shall be undertaken to the same standard stated as agreed by the Parties.

• To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this Agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.

• Disclosure and ownership of intellectual property

• Any inventions, whether or not they contain intellectual property rights capable of protection, shall be and remain the sole and exclusive property of the Consultant or its nominees.

• The Consultant (or its associated entities or persons) owns all Intellectual Property created by the Consultant in connection with the Consultancy Services, that now exists or that later comes into existence.

1. Confidentiality

• The Consultant must keep Your, and any Related Body Corporate’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

• You and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this Agreement shall also be regarded as Confidential Information and the Consultant agrees that the Consultant’s obligations in paragraph (a) extend to this category of information.
  • The Consultant’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:

• You, in the case of Confidential Information pertaining to Your business; and

• Your client, in the case of Confidential Information pertaining to the business of any of Your clients.

• At the Termination Date, or when earlier directed by You:

• all Confidential Information must be returned to You, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Consultant makes and any software that the Consultant creates based on the Confidential Information; and

• the Consultant must erase and destroy any copies of any software containing or comprising the Confidential Information in the Consultant’s possession or under the Consultant’s control or that may have been loaded onto a computer possessed or controlled by the Consultant.

• The Confidential Information does not include information which:

• is generally available in the public domain otherwise than as a result of a breach of paragraph (a) by the Consultant; or

• was known by the Consultant prior to You disclosing the information to the Consultant.

• The Consultant agrees that You may require any of the Consultant’s Personnel to sign a confidentiality agreement in a form that You approve, as a condition of Your acceptance of any of the Consultant’s Personnel.

• The obligations accepted by the Consultant under this clause survive termination or expiry of this Agreement.
• Feedback and dispute resolution
• Your feedback is important to the Consultant. The Consultant seeks to resolve your concerns quickly and effectively. If You have any feedback or questions about the Consultancy Services, the must contact the Consultant.
• If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure:
• The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
• If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to an arbitrator. If the Parties cannot agree on who the arbitrator should be, the complainant will ask the Law Society of New South Wales to appoint an arbitrator. The arbitrator will decide the time and place for arbitration. The Parties must attend the arbitration in good faith, to seek to resolve the dispute.
• Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.

1. Warranties, liability and indemnities

• The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services and to the standard generally accepted within the industry, sector or profession in which the Consultant operates for the type of Consultancy Services provided by the Consultant.
  • If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this Agreement including any part of Schedule 1, then, if requested by You, the Consultant will re-perform the relevant part of the Consultancy Services, subject to paragraphs (h) and (i) below
  • Your request referred to in paragraph (b) must be made within 1 month of the date the Consultant completed performing the Consultancy Services.
  • The Consultant shall effect all insurance required to be effected by law including worker’s compensation insurance as prescribed by law for the Consultant’s Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.
  • The Consultant covenants that the Consultant shall be solely responsible for the payment to the Consultant’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Consultant’s employees or agents and to otherwise comply with legislation applicable to the Consultant’s employees and agents.
  • Throughout the continuance of this Agreement the Consultant shall comply at the Consultant’s own cost and expense with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority so far as the same may affect or apply to the Consultant or to the Consultancy Services, and the Consultant shall indemnify You from and against all actions, costs, charges, claims and demands in respect thereof.
  • The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date any other date, whether stated in this Agreement or elsewhere.
  • Except in the case of death or personal injury caused by the Consultant’s negligence, the liability of the Consultant under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by You to the Consultant under this Agreement. The provisions of this paragraph (h) shall not apply to paragraphs (f) and (j).
  • Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this paragraph (i) shall not apply to paragraphs (f) and (j).
  • You shall indemnify and hold harmless the Consultant from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to You by the Consultant, its employees or consultants, or supplied to the Consultant by You within or without the scope of this Agreement.
  • You are liable for and agree to indemnify, defend and hold the Consultant harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
• any information provided by You that is not accurate, up to date or complete or is misleading or a misrepresentation; 
• your breach of this Agreement;
• any misuse of the Consultancy Services by You, your employees, contractors or agents; and
• your breach of any law or third party rights.
  • You agree to co-operate with the Consultant (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of You use of the Consultancy Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information You have given the Consultant.
  • This clause will survive the termination of this Agreement.
  • Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
  • The Consultant must supply You with evidence of the Consultant’s ABN and must include this number on any statement provided to You. The Consultant acknowledges that if the Consultant fails to provide an ABN, then You are entitled to withhold any proportion of the payments to the Consultant as may be required under the relevant law for tax purposes.
  • The Consultant warrants that the Consultant has no authority to engage the services of any person as an employee or agent of You.
  • The Consultant warrants that the Consultant shall not incur any liability on behalf of You or in any way pledge or purport to pledge Your credit or accept any other or make any contract binding upon You without prior approval being given by You.
  • The obligations accepted by the Consultant and You under this clause survive termination or expiry of this Agreement.
• Disclaimers and Limitation of Liability
  • Disclaimers: To the extent permitted by law the Consultant disclaims all responsibility and liability for:
• any inaccuracy or misleading information provided during the Consultancy Services and any reliance by You on any such information.
• any affect on your current circumstances as a result of obtaining the Consultancy Services.
• any improvement in your company’s financial and commercial position or your personal or financial position.
• any loss or corruption of data.
• any generation of or loss of profit, revenue or goodwill.
• any loss incurred by You as a result of any act, omission, deceit, neglect, mistake or default of any third party.
• any loss incurred by You as a result of your reliance on any information or any other general advice that may be provided as part of the Consultancy Services.
• any assurance or warranty regarding any particular performance or rate of return.
• any indirect, special or consequential loss arising from any breach of this Agreement.
  • Limitation: To the extent permitted by law, the Consultant’s total liability arising out of or in connection with the Consultancy Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to the Consultant re-supplying the Consultancy Services to You, or, at the Consultant’s option, the Consultant refunding to You the amount You have paid the Consultant for the Consultancy Services to which Your claim relates. The Consultant’s total liability to You for all damages in connection with the Consultancy Services will not exceed the price paid by You under this Agreement and pursuant to the then current Fees set out on the Consultant’s Website for the 12 month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.
  • This clause will survive the termination of this Agreement.

1. Termination
   1. This Agreement shall have a minimum initial term of 6 months, unless otherwise agreed in writing by the Consultant (Initial Term).
   1. Either Party may terminate this Agreement by notice in writing to the other if the other Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 1 month notice of the breach being given in writing by the notifying Party to the other Party.

• Either Party may terminate this Agreement after the Initial Term upon the happening of any of the following events:

• the giving of written notice of at least 4 weeks by one Party to the other Party of the intention to terminate this Agreement;

• if You enter into a deed of arrangement or an order is made for it to be wound up;

• if an administrator, receiver or receiver/manager or a liquidator is appointed to You pursuant to the Corporations Act 2001 (Cth); or

• if You would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

• You may, at your discretion, pay to the Consultant the equivalent amount of the fees payable by You to the Consultant during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph (c)(i).

• Upon termination of this Agreement any fees, expenses or reimbursements payable by You to the Consultant in respect of any period prior to the Termination Date must be paid by You within 1 month after the Termination Date.
  • In the event that the You cease payment of the Fee(s) during the Initial Term, the balance of the Fee(s) payable for the Initial Term shall be due and payable and constitute a debt payable to the Consultant on demand.

1. General

15.1. Force majeure

Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.

15.2. Amendments

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

15.3. Assignment

• Subject to paragraph (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.

• A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.

15.4. Entire agreement

• This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.

• The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

15.5. Waiver

• No failure or delay by the Consultant in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
• The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

15.6. Agency, partnership etc

• This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
• Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

15.7. Further assurance

Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

15.8. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

15.9. Announcements

• Subject to paragraph (b), no Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.

• No Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

15.10. Notices

A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.

15.12. Law and jurisdiction

This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

Executed as an Agreement on ……

Executed by You in accordance with

section 127 of the Corporations Act

2001:

SCHEDULE 1 SPECIFICATIONS

• Peace of Mind HR Advice and Support

            Consultancy Services

HR on Demand offers a comprehensive HR support package that include:

• An on-demand HR manager who will attend to your needs and concerns, providing tailored and informed advice and support through phone or email. You don’t need to book a call in advance as your calls and emails will be answered promptly.
• Up to 2 hours of consultation time per month, ensuring you have enough support to manage your HR requirements without incurring high costs.
• Access to a Client Portal where you can store all your HR documents, including templates, contracts, and forms. (Your employees do not have access to this portal)
• An Employee Onboarding System that streamlines the onboarding process and ensures new employees have all the necessary information and resources to hit the ground running.
• Access to a library of HR documents and templates, as you need them.
• Access to My HR Partner HR Hub, a comprehensive resource library that provides access to videos, webinars, Q&A sessions, templates, and checklists to help you address any HR problem.

• Fee

$550 per month inclusive of GST

• Expenses

Travel expenses or any other disbursement incurred at your request.