1. Definitions and Interpretation
1.1. The definitions and interpretation at clause 24 sets out and explains the rules of interpretation that apply
2. Entire Agreement
2.1. This agreement expresses and incorporates the entire agreement between the parties and supersedes and excludes any prior or collateral negotiation, understanding, communication, representation, or agreement by or between the parties.
3. Term
3.1. The agreement commences on the Commencement Date and continues until terminated by either party providing 14 days’ written notice to the other party. This agreement comes to an end at the expiry of that notice.
4. Services
4.1. The services to be performed as agreed by the Parties are as described in the Schedule to this agreement.
4.2. Subject to the terms of this agreement, Echo Virtual Assistant must supply the Services to the Client in consideration of the Client paying the Fee to Echo Virtual Assistant.
4.3. Echo Virtual Assistant will commence the provision of the Services on the Commencement Date and continue to supply it until this agreement is terminated pursuant to these terms. The Client acknowledges that Echo Virtual Assistant may deliver the Services within a reasonable time after the Commencements Date, as Echo Virtual Assistant may require time to undertake consultation with the Client and time to prepare the Services.
4.4. The Services may be supplied by such employees, contractors, or agents that Echo Virtual Assistant may choose as most appropriate to carry out the supply.
4.5. The Client must:
a) provide assistance to Echo Virtual Assistant as reasonably required so that Echo Virtual Assistant may competently perform its duties under this agreement;
b) provide all materials and information pertinent to the provision of the Services or as requested by Echo Virtual Assistant (acting reasonably) so that they may perform the Services;
c) agree that the accuracy of information supplied to Echo Virtual Assistant is the Client’s sole responsibility;
d) Echo Virtual Assistant is not responsible and shall not be held liable for the results if the Services are performed based on inaccurate, incomplete, untruthful, or out of date information; and
e) agree that the Client assume full responsibility for the final proofing, accuracy and acceptance of work delivered to the Client by Echo Virtual Assistant in connection with the Services. The Client acknowledges that Echo Virtual Assistant is not liable for any errors or omissions
5. Fees and Payment Terms
5.1. In consideration of the provision of Services in accordance with this agreement and as contained in the Schedule, the Client will pay Echo Virtual Assistant its Fee in advance of the proceeding fortnight.
5.2. The Client acknowledges that the Fees are exclusive of any GST that may be charged by Echo Virtual Assistant to the Client, and therefore, Echo Virtual Assistant will be entitled to add on GST.
5.3. The first fortnightly payment of the Fee is due within 3 business days of the Client executing this agreement. To avoid doubt, Echo Virtual Assistant is not obliged to perform any services until the fortnightly Fee is paid in advance.
5.4. All subsequent fortnightly Fees will be invoiced by Echo Virtual Assistant 7 days in advance of the commencement of the following fortnight’s services and are payable within 3 business days. To avoid doubt, Echo Virtual Assistant is not obliged to perform any services until the fortnightly Fee is paid in advance.
5.5. If the Client requires additional modifications to the Services, additional charges may be incurred and will be discussed with the Client prior to any work being undertaken.
6. Variation of Fees
6.1. Echo Virtual Assistant is entitled to vary the hourly rates during the term of this agreement with written notice to the Client of 14 days prior to the change being implemented.
7. Expenses
7.1. Echo Virtual Assistant is permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier services, postage, internet, and telephone.
8. Use of employees, contractors, and agents
8.1. Echo Virtual Assistant is permitted to use other persons to provide some or all the Services.
8.2. Echo Virtual Assistant is responsible for the work of any of its employees, contractors, and agents.
8.3. Subject to clause 8.4, any work undertaken by any of Echo Virtual Assistant’s employees, contractors and agents will be undertaken to the same standard as stated in this agreement and the Schedule.
8.4. To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in this agreement (including as to timing or quality), any Services provided by the relevant contractor will be governed by the terms and conditions of that subcontractor’s subcontract.
9. Client Responsibilities
9.1. During the preparation of the specifications contained in the Schedule to this agreement and performance of the Services by Echo Virtual Assistant, the Client will:
a) co-operate with Echo Virtual Assistant as Echo Virtual Assistant reasonably requires;
b) provide the information and documentation that Echo Virtual Assistant reasonably requires;
c) ensure that the Client’s staff and agents cooperate with and assist Echo Virtual Assistant.
9.2. The Client will not charge Echo Virtual Assistant for information and documentation including any Confidential Information, made available to Echo Virtual Assistant by the Client.
9.3. If the Client does not provide the information and documentation including any Confidential Information which Echo Virtual Assistant reasonably requires (and within a reasonable time) to perform the Services, then any additional costs and expenses which are reasonably incurred by Echo Virtual Assistant will be paid by the Client.
10. Confidentiality
10.1. Echo Virtual Assistant must not, without the prior written consent of the Client, use or disclose any documents in connection with the Services of this agreement, which is marked confidential by the Client related to the Services (“Confidential Information”), other than as necessary to provide and/or maintain the Services.
10.2. Despite the above, either Party may disclose Confidential Information if and to the extent that:
a) such disclosure is required by law, or
b) the information is generally available in the public domain except where that is a result of a disclosure in breach of this agreement.
c) Echo Virtual Assistant needs to disclose the information to a third party in connection with the performance of the Services, in which case Echo Virtual Assistant undertakes to advise the third party of the confidential nature of the information and obtain confirmation from the third party they agree to keep the information confidential in accordance with the terms of this Agreement.
10.3. If the Client does not request the return of Confidential Information at the termination of this agreement, Echo Virtual Assistant will promptly destroy physical Confidential Information and delete electronic copies. The confidentiality provisions of this agreement will continue to apply until such time as the Confidential Information is destroyed, deleted or it becomes Excluded Information.
11. Disclosure and ownership of Intellectual Property
11.1. The Intellectual Property in the Services or any document or thing related to the Services, and any additions or enhancements incorporated into the Services by Echo Virtual Assistant is owned by Echo Virtual Assistant.
11.2. The Intellectual Property in any of the Client’s pre-existing material owned by the Client prior to the commencement of this agreement and used in the delivery of the Services is owned by the Client.
12. Warranties, liability, indemnities & Limitation of Liability
12.1. Echo Virtual Assistant provides the Services to the Client at the request of the Client.
12.2. The Services is provided without warranty of any kind, express or implied.
12.3. Echo Virtual Assistant does not warrant that:
a) the Services will be error free, or
b) the Services will be provided without interruption.
12.4. If Echo Virtual Assistant supplies the Services (or any part of it) negligently or in breach of this agreement, then the Client must give Echo Virtual Assistant the opportunity to re-supply the relevant part of the Services to rectify the same.
12.5. Echo Virtual Assistant provides no warranty that any goal, result, or objective can or will be achieved or attained at all or by any completion date or any other date, whether stated in this agreement or elsewhere.
12.6. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Act (or similar legislation) in each of the States and Territories of Australia where Echo Virtual Assistant undertakes the work, except to the extent permitted by those Acts where applicable.
12.7. Without limiting any other term in this document, where the Client is a consumer (as defined by the ACL) but the goods or services supplied by Echo Virtual Assistant to the Client are not of a kind ordinarily acquired for personal, domestic, or household use or consumption, Echo Virtual Assistant’s liability under the consumer guarantees (as defined by the ACL) is limited, at Echo Virtual Assistant’s option, to one or more of the following:
a) re-supplying the Services supplied to the Client again.
12.8. In all other circumstances, and without limiting any other term in this document, to the full extent permitted by law, (including but not limited to the ACL, any relevant federal, State, or local statute as amended from time-to-time and the common law), Echo Virtual Assistant will not be liable in any circumstances for any Loss or damage (including consequential loss or damage including loss of profit) to the Client or any property or person whatsoever arising out of or connected with:
a) these terms;
b) the Client’s access to, use of or inability to use any of the product or Services;
c) the provision of the any product or Services under this agreement;
d) the delay in delivery, delay or non-delivery of any product or Services supplied to the Client; or
e) the delay in completing or a breach of this document by Echo Virtual Assistant.
12.9. The Client indemnifies Echo Virtual Assistant and each of Echo Virtual Assistant’s employees, contractors and agents against any Loss, Claim, damage, or expense (including legal fees on a full indemnity basis) incurred by Echo Virtual Assistant’s or any of Echo Virtual Assistant’s employees, contractors and agents arising directly or indirectly out:
a) of infringement of third-party Intellectual Property, or third-party Losses by reason of or arising out of any information supplied to the Client by Echo Virtual Assistant, its employees, agents, or consultants, or supplied to Echo Virtual Assistant by the Client within or outside of the scope of this agreement; or
b) of any breach by the Client of this agreement; or
c) of the Client failing to follow the reasonable advice of Echo Virtual Assistant.
12.10. The obligations accepted by Echo Virtual Assistant and the Client under this clause 12 survive termination or expiry of this agreement.
13. Marketing Material
13.1. The Client authorises Echo Virtual Assistant to use the Client’s name and logo in Echo Virtual Assistant’s marketing material, including on the Echo Virtual Assistant website and in promotional documents.
13.2. The Client may withdraw permission for Echo Virtual Assistant to use its name and logo in marketing material at any time by providing written notice to Echo Virtual Assistant
14. Disputes
14.1. When a dispute arises under this agreement, a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required, and the action believed necessary under the circumstances that will assist both in settling the dispute. Each party will then, in good faith, attempt to resolve the dispute by negotiation within the next 14 days from the date of the complaint, or longer period if the parties agree in writing.
14.2. Except in the case of urgent injunctions, the parties agree to attempt to resolve any dispute in accordance with this clause prior to enforcing any other rights permitted by law in relation to this agreement.
15. Termination
15.1. Echo Virtual Assistant reserves the right to immediately terminate the agreement if:
a) the Client fails to pay the Fee within the agreed terms;
b) the Client becomes an externally administered body corporate or insolvent, bankrupt, or subject to laws relating to guardianship or diminished mental capacity;
c) Echo Virtual Assistant believes any product and Services is being used by the Client to commit illegal or unauthorised activity; or
d) the Client fails to follow the reasonable advice of Echo Virtual Assistant.
15.2. Without limiting any other term, Echo Virtual Assistant has no liability to the Client for termination of the agreement in accordance with this clause.
16. Force majeure
16.1. Neither Party has any liability under or may 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.
16.2. The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
16.3. 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.
17. Amendments
17.1. This agreement may only be amended in writing signed by duly authorised representatives of the parties.
18. Severance
18.1. Any provision or part provision of this agreement that is invalid, unenforceable, or illegal for any reason in any jurisdiction, is invalid, unenforceable, or illegal in that jurisdiction to that extent. It will not invalidate, make unenforceable or illegal, or affect the remaining provisions of this agreement or the validity, enforceability of legality of that provision in any other jurisdiction.
19. Waiver
19.1. Any failure by the parties to exercise any right under this agreement in whole or in part does not operate as a waiver.
19.2. The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
20. No partnership or employment relationship
20.1. This agreement does 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.
20.2. The Client does not have and must not represent that it has any authority to make any commitments on Echo Virtual Assistant’s behalf.
21. Governing Law
21.1. This agreement is governed by and construed under the law of the State of Western Australia. Any legal action relating to this agreement must be brought in any court of competent jurisdiction in the State of Western Australia, and the parties irrevocably, generally, and unconditionally submit to the exclusive jurisdiction of the courts of that State.
22. Assignment
22.1. The Client must not transfer any right or liability under this agreement without the prior written consent of Echo Virtual Assistant.
22.2. Echo Virtual Assistant may assign its rights or liabilities under this agreement at its absolute discretion.
23. Notice
23.1. A notice or other communication connected with this agreement has no legal effect unless it is in writing and signed by either the sender or, if a corporate party, an authorised officer of the sender or the party’s solicitor. 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 email or fax to the email or fax number of the addressee.
24. Interpretation
In this document, unless the context requires otherwise:
a) The headings to the clauses and schedules of this agreement are not to affect the interpretation;
b) the singular includes the plural and vice versa;
c) words denoting any gender include all genders;
d) a reference to a person includes any other entity recognised by law and vice versa;
e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
f) any reference to a party to this document includes its successors and permitted assigns;
g) any reference to any agreement or document includes that agreement or document as amended at any time;
h) the word "including" (and related forms including "includes") is understood as meaning "including without limitation";
i) the expression at any time includes reference to past, present, and future time and performing any action from time to time;
j) an agreement, representation, or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
k) a reference to an exhibit, annexure, section, attachment, or schedule is a reference to the corresponding exhibit, annexure, attachment, section, or schedule in this document;
l) a reference to a clause described, prefaced, or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit, or attachment in this document means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;
m) a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated;
n) a provision of this document must not be construed to Echo Virtual Assistant’s disadvantage merely because it was responsible for the preparation of this document or the inclusion of any term in this document;
o) to avoid doubt, and without limitation, the term “in writing” or such similar term includes by email;
p) unless expressly stated otherwise, a reference to dollars or $ is to an amount in Australian currency;
q) Each person executing this document on behalf of the Client warrants and represent that they have full authority to enter into this agreement on behalf of the Client