FDS - Agreement Contractor
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FDS has engaged a professional contractor MMPD to facilitate any clients request for distribution support. This option allows FDS to deliver a TOTAL Solution.

FDS has engaged a professional contractor MMPD to facilitate any clients request for distribution support. This option allows FDS to deliver a TOTAL Solution.

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FDS - Agreement Contractor Document Transcript

  • 1. M.M.P.D.ContractorDeliveryAgreementMMPD Pty Ltd tradingas Mass MediaDistributions andPromotions16th July 2012
  • 2. MMPD Pty Ltd – Contractor Delivery AgreementRecitals Date This Agreement is made between the parties on August 1st 2012 Parties Insert contractor name and ACN or ABN Contact: Insert contact name Telephone: Insert telephone number Email: email@webname.com.au (Contractor) MMPD Pty Ltd ACN 118 599 625 of Unit 8, 615 Seventeen Mile Rocks, QLD 4073. Contact: Simon Coulter Telephone (07) 3137-1405 Email: simon@mmpd.com.au (MMPD) Background A. MMPD is in the business of distributing mass media to newsagents, other distributors and individuals. B. The Contractor has expressed an interest in being engaged by the MMPD. C. MMPD would like to engage the services of the Contractor on the terms and conditions as contained in this Agreement.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 2
  • 3. MMPD Pty Ltd – Contractor Delivery AgreementTable of contents1. Definitions and interpretation ............................................................................................... 5 1.1 Definitions .............................................................................................................................. 5 1.2 Interpretation .......................................................................................................................... 72. Provision of Services ........................................................................................................... 83. Term .................................................................................................................................... 84. Nominated Personnel .......................................................................................................... 85. Contractor’s Obligations ....................................................................................................... 8 5.2 Contractors acknowledgement .............................................................................................. 96. Fees and Payment ............................................................................................................... 97. GST ................................................................................................................................... 10 7.1 Recovery of GST ................................................................................................................. 10 7.2 Time for Payment of GST Amount....................................................................................... 10 7.3 Indemnity and Reimbursement Payments ........................................................................... 10 7.4 Interpretation ........................................................................................................................ 108. Risk and Title ..................................................................................................................... 109. Occupational Health and Safety and the Environment ....................................................... 1110. Insurance ........................................................................................................................... 1211. Intellectual Property ........................................................................................................... 1312. Warranty and Indemnities .................................................................................................. 14 12.1 Warranty .............................................................................................................................. 14 12.2 Indemnity ............................................................................................................................. 1413. Confidentiality .................................................................................................................... 1414. Records ............................................................................................................................. 1515. Termination ........................................................................................................................ 1516. Notices............................................................................................................................... 16 16.1 Service of Notices ................................................................................................................ 16 16.2 Effective on receipt .............................................................................................................. 1717. Miscellaneous .................................................................................................................... 17 17.1 Amendments ........................................................................................................................ 17 17.2 Assignment .......................................................................................................................... 17 17.3 Counterparts ........................................................................................................................ 17 17.4 Entire Agreement ................................................................................................................. 17 17.5 Further assurances .............................................................................................................. 17 17.6 Notices ................................................................................................................................. 18 17.7 Non-Competition .................................................................................................................. 18 17.8 No Subcontracting ............................................................................................................... 18 17.9 Jurisdiction ........................................................................................................................... 18 17.10 Relationship between the Parties ........................................................................................ 18 17.11 Severability .......................................................................................................................... 18 17.12 Survival ................................................................................................................................ 19c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 3
  • 4. MMPD Pty Ltd – Contractor Delivery Agreement 17.13 Waiver .................................................................................................................................. 1918. Schedule 1 - Details ........................................................................................................... 2019. Schedule 2 - Services ........................................................................................................ 21 19.1 Receipt of Publications ........................................................................................................ 21 19.2 Delivery of Publications ....................................................................................................... 21 19.3 Disposal of waste ................................................................................................................. 21 19.4 Right to Modify ..................................................................................................................... 21 19.5 Missed Deliveries ................................................................................................................. 2120. Schedule 3 - Fees .............................................................................................................. 2221. Signing page ...................................................................................................................... 23c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 4
  • 5. MMPD Pty Ltd – Contractor Delivery Agreement1. Definitions and interpretation1.1 Definitions In this Agreement the following words have the associated meaning unless the contrary intention appears: Background IP means Intellectual Property rights which the MMPD can establish came into existence other than in connection with the provision of the Services and which are owned by or licensed to the MMPD. Commencement Date means the date specified as such in Item 3 of the Schedule 1 - Details. Details means the terms specified in Schedule 1 - Details of this Agreement. Dispute includes any dispute, controversy, difference or claim arising out of or in connection with this Agreement or the subject matter of this Agreement, including any question concerning its formation, validity, interpretation, performance, breach and termination. Confidential Information means all information relating to MMPD, its Related Bodies Corporate, representatives or customers which is or has been: (a) disclosed to the Contractor in connection with this Agreement; or (b) learnt or acquired by the Contractor in the performance of this Agreement: (c) other than any such information which: (d) was in the public domain at the time of its provision by MMPD; (e) became part of the public domain after its provision by MMPD, otherwise than through a disclosure in breach of confidence; or (f) is in or came lawfully into the possession of the Contractor from a source other than MMPD and otherwise than as a result of a disclosure in breach of an obligation of confidence. End Date means the date specified as such in Schedule 1 - Details - Item 1 GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). GST Exclusive Consideration means any consideration payable under this Agreement that either does not include an amount referable to GST or, if the consideration is inclusive of GST, is that consideration excluding the amount referable to GST using the rate of GST in force at the time the parties agreed on the consideration. Intellectual Property means copyright in any documents provided by MMPD to the Contractor; all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, and confidential information; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 5
  • 6. MMPD Pty Ltd – Contractor Delivery Agreement Lost Sales means the number of copies of each Publication that MMPD estimates were not sold in a particular week due to the Contractor not performing the Services in accordance with this Agreement. MMPD will calculate the Lost Sales for each Publication using the following formula: (a) Calculate the weekly average number of net sales of each Publication at each affected Retail Outlet for the 4 weeks prior to the week in dispute; (b) Calculate the actual number of net sales of each Publication at each affected Retail Outlet for the week in dispute; and (c) Subtract the amount calculated in paragraph (b) from the amount calculated in paragraph (a). Lost Sales Revenue means the amount calculated by multiplying the cover price for each Publication (less any amount payable to the Retail Outlet as commission) by the number of Lost Sales for that Publication. Masthead Returns means the top portion of a Publication’s front page (where the Publication logo and issue date are shown) for any Unsolds. Off Sale Date means the date a Publication goes off sale, being the date on which the immediately subsequent edition of the Publication goes on sale. Outlet Distribution Fee means the weekly cost of delivery of Publications to a particular Retail Outlet, calculated by dividing the weekly fee for the delivery route by the total number of Retail Outlets on that delivery route. Project IP means any Intellectual Property arising from the performance of the Services under this Agreement. Publication means all publications that MMPD notifies the Contractor in writing are to be included in the Services. Related Body Corporate has the meaning it has in the Corporations Act 2001 (Cth). Relevant OHS&E Obligations means: (a) all laws, regulations, ordinances and any requirements, notices, orders or directions of regulatory or statutory authority having jurisdiction in relation to quality, protection of the environment or occupational health and safety; and (b) any policies, guidelines, procedures and standards relating to quality, the environment or occupational health and safety notified to the Contractor by MMPD from time to time. Retail Outlets means the business or commercial address of newsagencies, supermarkets and specialty retail outlets to which the Contractor is required to deliver the Publications, as notified by MMPD to the Contractor before the first delivery under this Agreement (and then as notified by MMPD from time to time). Services means services provided or to be provided by the Contractor to MMPD under this Agreement as set out in Schedule 2 - Services. Special Conditions means the conditions specified in Item 7 of Schedule 1 - Details.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 6
  • 7. MMPD Pty Ltd – Contractor Delivery Agreement Target Delivery Date/Time means delivery dates/times notified to the Contractor by MMPD in Item 9 of Schedule 1 - Details. Tax Invoice has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Unsold means a copy of a Publication that a Retail Outlet did not sell before the Off Sale Date. Working Day means Monday to Friday, excluding public holidays in Queensland. Work means a material form in which Project IP vests, and includes a substantial part or adaptation of it.1.2 Interpretation In the interpretation of this Agreement, unless the context or subject matter otherwise require: (a) a reference to the Contractor includes a reference to the Contractor’s employees, representatives as the case requires; (b) the singular includes the plural and vice versa; and (c) the word ‘person’ includes a firm, a body corporate, an unincorporated association or an authority. (d) singular includes plural and vice versa; (e) any gender includes every gender; (f) a reference to a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies; (g) references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English; (h) references to signature and signing include due execution of a document by a corporation or other relevant entity; (i) references to months mean calendar months; (j) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes; (k) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes; (l) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement; (m) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning; (n) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 7
  • 8. MMPD Pty Ltd – Contractor Delivery Agreement (o) a reference to an Agreement or document is to that Agreement or document as amended, novated, supplemented or replaced from time to time; (p) a reference to a clause is a reference to a clause in this Agreement; and (q) a reference to a party includes that partys executors, administrators, substitutes, successors and permitted assigns. (r) a reference to time is to Queensland Australia time. (s) a reference to $, dollars or $A is to the currency of the Commonwealth of Australia.2. Provision of Services MMPD engages the Contractor to provide the Services set out in Schedule 2 - Services in accordance with the terms and conditions of this Agreement including the Special Conditions.3. Term This Agreement commences on the Commencement Date set out in Item 3 Schedule 1 - Details and continues until the End Date set out in Item 4 End date of the Details or the date on which the Agreement is earlier terminated in accordance with clause 15. At the End Date this Agreement will automatically extend on a week to week basis unless or until terminated in accordance with clause 15.4. Nominated Personnel (a) The Contractor must provide the Services through the personnel set out in Schedule 1 - Details Nominated Personnel or such other personnel as may be approved in writing by MMPD from time to time (Nominated Personnel). (b) The Nominated Personnel must be suitably qualified and experienced for the provision of the Services. (c) The Nominated Personnel and any other person engaged by the Contractor in connection with this Agreement will be under the complete control of the Contractor and will not be deemed to be employees of MMPD. The Contract agrees that they control the timing and delivery of the services. Nothing contained in this Agreement or in any subcontract awarded by the Contractor will be construed to create any contractual relationship between any such person and MMPD. (d) If MMPD reasonably considers that the Nominated Personnel are not performing the Services in a satisfactory manner, MMPD may request the Contractor to replace that person with a person approved by MMPD and the Contractor must promptly comply with that request.5. Contractor’s Obligations In providing the Services to MMPD, the Contractor must:c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 8
  • 9. MMPD Pty Ltd – Contractor Delivery Agreement (a) ensure that the Services are provided in a timely, efficient and professional manner; (b) ensure that the Services are provided with due care, skill and diligence; (c) ensure, in the event that the Nominated Personnel is sick, takes holidays or is otherwise unavailable to provide the Services, that adequate arrangements are made to ensure the Services continue to be provided to MMPD in accordance with this Agreement; (d) ensure that it and the Nominated Personnel at all times act justly and faithfully in all transactions relating to MMPD and show the utmost good faith in MMPD’s business; (e) ensure that a back-up vehicle that is fit for the purpose is available within one hours notice in case of need; (f) comply with all laws, regulations, awards, ordinances and any requirements, notices, orders or directions of any regulatory or statutory authority applicable to the Services (including but not limited to those prescribing minimum rates of pay for the performance of work covered by this Agreement); (g) ensure that delivery of Publications does not damage: i) any property of MMPD; ii) the Retail Outlets; or iii) any other person. (h) take all measures necessary to protect people and property, avoid loss or injury, avoid unnecessary interference with the passage of people and vehicles and prevent nuisance and unreasonable noise or disturbance; (i) comply with all reasonable instructions or directions of MMPD as to the performance, nature and scope of the Services; (j) comply with all applicable MMPD policies and procedures as communicated from time to time; (k) ensure that the Nominated Personnel and any other employees, and representatives of the Contractor are made aware of, and comply with, the Contractor’s obligations under this Agreement; and (l) Deliver any extra communication letters or point of sale pieces as reasonably directed by MMPD.5.2 Contractors acknowledgement The Contractor acknowledges and agrees that it is solely responsible for all wages, salaries, leave entitlements, superannuation, PAYE tax, payroll tax, workers compensation insurance and all other employment obligations it may incur in providing the Services.6. Fees and Payment (a) In consideration of the Services provided by the Contractor, MMPD will pay the Contractor the fees set out in Item 5 of Schedule 1 - Details section of this Agreement.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 9
  • 10. MMPD Pty Ltd – Contractor Delivery Agreement (b) The Contractor will invoice MMPD weekly for amounts payable by MMPD under clause 6(a). The invoice must specify the date and time the Services were performed and any other information reasonably required by MMPD. (c) MMPD will pay the Contractor the amount of any invoice which is valid and correctly rendered within 10 working days of receipt of such invoice. MMPD may deduct from such amounts any moneys due to MMPD from the Contractor, whether in connection with this Agreement or otherwise. (d) The Contractor acknowledges that the fees payable under this Agreement may need to change to meet the needs of MMPD’s business from time to time. Contractors will be given 7 days written notification of any variation to fees.7. GST7.1 Recovery of GST If one party (supplying party) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the consideration (receiving party) must also pay an amount equal to the GST payable by the supplying party.7.2 Time for Payment of GST Amount Subject to first receiving a tax invoice, the receiving party must pay the GST amount when it is liable to provide the consideration.7.3 Indemnity and Reimbursement Payments If one party must indemnify or reimburse another party (payee) for any loss or expense incurred by the payee, the required payment does not include any amount which the payee (or an entity that is in the same GST group as the payee) is entitled to claim as an input tax credit, but will be increased under clause 7.1 if the payment is consideration for a taxable supply.7.4 Interpretation In this Agreement Terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended.8. Risk and Title (a) After the Contractor collects the Publications from MMPDs client, the Publications are held at the Contractor’s risk and expense in respect of all loss or damage, from any cause, until the Publications are delivered to the Retail Outlets in accordance with the terms and conditions of this Agreement. (b) Title to the Publications remains with MMPDs supplier until the Publications are sold by the Retail Outlets, at which time title will pass to the relevant Retail Outlet.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 10
  • 11. MMPD Pty Ltd – Contractor Delivery Agreement (c) The Contractor and the Retail Outlets will, while in possession of the Publications, hold them only as bailee for MMPDs supplier and the Contractor will be responsible for the replacement cost of the Publications if they are lost, damaged, stolen, destroyed or are otherwise unfit for purpose.9. Occupational Health and Safety and the Environment (a) The Contractor must take all reasonable steps to ensure that the Nominated Personnel and all other employees, agents or sub-contractors of the Contractor act in a sensible and responsible manner with due care and regard to their own safety and that of others when providing the Services under this Agreement, including, without limitation, requiring the Nominated Personnel to: i) provide and maintain a roadworthy vehicle; ii) wear a high visibility safety vest with night reflective stripes; and iii) wear enclosed shoes. (b) The Contractor must: i) Strictly comply with: (A)all workers’ compensation legislation in respect of all employees, representatives and back up personnel it engages to providing the Services, and must obtain and maintain all insurances under, and pay all amounts required by, that legislation; and (B) any Relevant OHS&E Obligations which are applicable to the performance or non-performance of any of the Contractor’s obligations under this Agreement; (c) at MMPD’s request, provide MMPD with evidence of compliance with its obligations under clauses 9(a) and 9(b). (d) Without in any way limiting the Contractor’s obligations under clauses 9(a) and 9(b) above, before commencing the Services, the Contractor must implement appropriate risk management plans in relation to all occupational health, safety and environment (OHS&E) risks relating to the Services. The Contractor must, in accordance with relevant industry standards and in compliance with any applicable legislation: i) identify the environmental aspects and impacts, and any risks or potential risks to health or safety associated with the Services to ensure that all potential or actual OHS&E risks are identified; ii) ensure that the risks or potential risks associated with all of the environmental aspects and impacts, and the health and safety risks or potential risks identified in accordance with clause 9(a) are assessed; iii) ensure that the risks or potential risks associated with all of the environmental aspects and impacts, and the health and safety risks or potential risks identified inc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 11
  • 12. MMPD Pty Ltd – Contractor Delivery Agreement accordance with clause 9(a) are eliminated, so far as is reasonably practicable and, if this is not reasonably practicable, are reduced so far as is reasonably practicable, including, but not limited to, by ensuring the Contractor has appropriate procedures and practices in place and has developed and documented appropriate OHS&E risk management plans; iv) ensure its employees, agents and are appropriately inducted, trained and supervised in relation to: (A)the risks or potential risks identified and assessed in accordance with this clause 9(d)iii) (B) the procedures they need to follow to eliminate those risks or potential risks, in so far as this is reasonably practicable and, if this is not reasonably practicable, to reduce those risks or potential risks so far as is reasonably practicable; and (C) their OHS&E obligations under this Agreement, including the Relevant OHS&E Obligations; and (e) at MMPD’s request, submit a complete copy of its OHS&E risk management plan to MMPD. (f) The Contractor must promptly notify MMPD of: i) any incidents required to be reported under the Relevant OHS&E Obligations; ii) any breach by the Contractor of the Relevant OHS&E Obligations; and iii) any accidents, injuries, property or environmental damages, iv) that occur during the performance of the Contractor’s obligations under this Agreement. (g) The Contractor acknowledges that MMPD does not purport to be an expert on OHS&E issues, nor does it purport to have the capacity to supervise, review or audit the Contractor’s performance under this Agreement in relation to OHS&E issues and compliance. However, where MMPD becomes aware of an issue in relation to the Contractors performance under this Agreement, and it informs the Contractor that in MMPD’s reasonable opinion, the Contractor is: i) not performing the Services in compliance with the Contractor’s obligations under this clause 9; or ii) performing the Services in such a way as to endanger the environment or the health and safety of the Contractor’s representatives, including the Nominated Personnel, or MMPD’s representatives or property, iii) the Contractor must promptly remedy that breach.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 12
  • 13. MMPD Pty Ltd – Contractor Delivery Agreement10. Insurance (a) Prior to commencing the Services under this Agreement, the Contractor must at its own expense effect and maintain for the duration of the Agreement a public liability insurance policy which will provide insurance coverage for an amount not less than AUD$5 million in respect of any occurrence or claim in relation to or which may arise in connection with the performance of the Services. (b) Prior to the Contractor commencing provision of the Services, and at any time during the term of this Agreement, the Contractor must, upon request from MMPD, provide MMPD with a certificate or other evidence of compliance with its obligations under this clause 10.11. Intellectual Property (a) The Contractor agrees that the Project IP vests in MMPD as and when created and the Contractor hereby assigns the Project IP (including but not limited to any Project IP created prior to the Commencement Date) to MMPD. (b) The MMPD grants to the Contractor a non-exclusive, perpetual, royalty free licence to use any Background IP to the extent necessary to enable MMPD to exercise its rights in the Project IP. (c) MMPD warrants that the Services and use of the Background IP or Project IP by the Contractor or any person authorised by the Contractor will not infringe the Intellectual Property of any person or infringe any other rights or laws and indemnifies the Contractor against any liability, loss, damage, costs or expenses incurred by it in connection with a claim of such infringement by a third party or breach of this clause by the Contractor (Third Party Claim). (d) If a Third Party Claim is made or there is a breach of the warranty in clause 11(c) the Contractor must, without limiting any of MMPD’s other rights or remedies, within 5 Working Days at its cost make such modifications or perform such services as are required to prevent the infringement. (e) The Contractor will procure the irrevocable consent of each of the Nominated Personnel, to MMPD in its absolute discretion: i) using any Work: (A) with or without attribution of authorship; (B) with or without other materials comprised in the Work; (C) with or without any other text, data, sounds or images (whether animated or not); (D) with no title, the same title or any other title; (E) in any medium; (F) in any context; and (G) in any way it sees fit; ii) adding to or deleting from the Work; orc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 13
  • 14. MMPD Pty Ltd – Contractor Delivery Agreement iii) materially distorting, destroying, mutilating, altering or any other way changing the Work. (f) The Contractor must sign, and procure each of the Nominated Personnel to sign, all documents and do anything reasonably required by MMPD to give effect to the assignment of the Project IP to MMPD and to effectively consent to using and changing any Work as it sees fit.12. Warranty and Indemnities12.1 Warranty The Contractor represents and warrants that as at the date of this Agreement it has full power and authority to enter into, perform and observe its obligations under this Agreement and its obligations under this Agreement are valid, binding and enforceable.12.2 Indemnity (a) The Contractor indemnifies MMPD and its representatives against all losses, damages, liabilities, claims and expenses (including legal costs and defence or settlement costs) arising out of or in connection with: i) any breach by the Contractor of its obligations under this Agreement; ii) any wilful, unlawful or negligent act or omission of the Contractor, the Nominated Personnel or any other of its representatives; or any iii) injury to, or death of, a natural person and any loss of or damage to a third party’s property; iv) claim, action, demand or proceeding by a third party against MMPD; or v) loss of or damage to MMPD’s property or its Clients Property (including the Publications), vi) to the extent caused or contributed to by the Contractor, the Nominated Personnel or any other of its representatives or any wilful, unlawful or negligent act or omission of the Contractor, the Nominated Personnel or any other of its representatives. The Contractor indemnifies MMPD from and against any claim for payment of wages, salaries and any other employment obligations referred to in clause 5.13. Confidentiality (a) The Contractor acknowledges that the Confidential Information is valuable to MMPD and undertakes to keep the Confidential Information secret, and to use or reproduce the Confidential Information solely for the purpose of performing its obligations under this Agreement. (b) The Contractor may disclose Confidential Information on a need to know basis to:c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 14
  • 15. MMPD Pty Ltd – Contractor Delivery Agreement i) its legal advisers in order to advise it in relation to its rights under this Agreement; and ii) to the extent required by law or by a lawful requirement of any government or governmental body, authority or agency or in connection with legal proceedings relating to this Agreement, (c) subject to the Contractor giving MMPD sufficient notice of any proposed disclosure to enable MMPD to seek a protective order or other remedy to prevent the disclosure. (d) The Contractor may disclose Confidential Information to the Nominated Personnel or its other employees and/or contractors solely for the purpose of performing its obligations under this Agreement and subject to the Contractor imposing on those persons obligations of confidentiality which are no less onerous than those imposed on the Contractor under this Agreement. (e) If the Contractor breaches, or is aware that any of its representatives have breached the confidentiality obligations contained in this clause 13, it must immediately notify MMPD of the nature and details of that breach. (f) The obligations of confidentiality imposed by this Agreement survive the termination of this Agreement.14. Records (a) The Contractor must keep full and proper books of accounts and records relating to the performance of the Contractor’s obligations under this Agreement (Records) during the term of this Agreement and for 7 years after the termination or expiry of this Agreement. (b) MMPD may from time to time (by giving at least 7 days’ notice in writing to the Contractor) at reasonable times inspect, audit and take copies of the Records in order to: i) verify that reports and information provided to it by the Contractor under this Agreement are accurate; and ii) audit the Contractor’s compliance with this Agreement. The Contractor will cooperate with any representatives appointed by MMPD to carry out the audit and verification referred to in clause 14(b) and will give them access to all such information, records and personnel as are reasonably necessary to enable them to carry out the audit and verification.15. Termination (a) MMPD may terminate this Agreement without cause if: i) the Contractor has breached a provision of this Agreement; ii) the continued delivery of the Publications by the Contractor will damage the reputation of MMPD; iii) giving to the Contractor 1 days’ written notice; orc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 15
  • 16. MMPD Pty Ltd – Contractor Delivery Agreement iv) immediately, with payment in lieu of what the Contractor would have earned during the 7 day notice period if they had provided the Services. (b) The Contractor may terminate this Agreement by giving to MMPD 30 days’ written notice. (c) Where the Contractor gives notice under clause 15(b), MMPD may request the Contractor immediately to cease to provide the Services for all or part of the notice period and the Contractor must comply with that request. Where MMPD makes such election, it will pay the Contractor an amount equal to what the Contractor would have earned during the remainder of the notice period, as if the Contractor had provided the Services for the entire notice period. (d) Without in any way limiting this clause, if the Contractor terminates this Agreement without providing notice in accordance with clause 15(c), MMPD may recover from the Contractor any costs incurred by MMPD in engaging a third party to provide the Services during the period for which notice was required to have been given, which costs may exceed the amount the Contractor would have earned during the notice period if they had provided the Services. (e) Without in any way limiting its right to terminate this Agreement under clause 15(a)iv), MMPD may terminate this Agreement immediately by written notice if Error! Reference source not found.the Contractor commits (and its nominated personnel) breach any of the terms of this Agreement, becomes bankrupt, is charged with a criminal act in any jurisdiction, is unable to pay its debts as and when they fall due or any steps are taken towards its winding up, dissolution, liquidation or the appointment of a receiver, administrator or other controller over the Contractor. (f) Upon termination of this Agreement for any reason the Contractor must cease providing the Services and, at its cost, provide MMPD with all materials, Project IP, Confidential Information and any other property of MMPD in the Contractor’s possession or control. (g) Termination of this Agreement does not affect: i) any rights of MMPD that: ii) arose prior to the termination; or iii) otherwise relate to any breach or non-observance of obligations under this Agreement occurring prior to termination; or iv) the rights and obligations of the parties under clauses 10 (Insurance) and 13 (Confidentiality) which survive termination of this Agreement.16. Notices16.1 Service of Notices A Notice must be:c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 16
  • 17. MMPD Pty Ltd – Contractor Delivery Agreement (a) in writing and in English directed to the recipients address for Notices specified in the Details section of this agreement, as varied from time to time by way of Notice; and (b) hand delivered or sent by pre-paid post, facsimile or email to the address nominated in the Details section of this Agreement: i) if sent electronically by email, the sender must include a read receipt notice, that the recipient must acknowledge, so as to prove receipt of the Notice.16.2 Effective on receipt A Notice given in accordance with clause 16.1 takes effect when received (or at a later time specified in it), and is taken to be received: (a) if hand delivered, on delivery; (b) if sent by prepaid post, 2 Business Days after the date of posting (or seven Business Days after the date of posting if posted to or from outside Australia); (c) if sent by facsimile, when the senders facsimile system generates a message confirming successful transmission of the notice in entirety unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire notice, but if the delivery, receipt or transmission is not on a Business Day or after 5:00 pm on a Business Day, the notice is taken to be received at 9:00 am on the Business Day after that delivery, receipt or transmission. (d) if sent by email, on the business day after it is sent.17. Miscellaneous17.1 Amendments This Agreement may only be altered in writing signed by each party and each subsequent acceding party.17.2 Assignment (a) The Contractor must not, without MMPD’s prior written consent (which may be given subject to reasonable conditions), transfer, assign, charge, mortgage or encumber any of its rights or obligations under this Agreement. (b) MMPD may transfer, assign or novate this Agreement to a third party and the Contractor must, upon request from MMPD, sign any necessary documentation.17.3 Counterparts This Agreement may be executed in any number of identical counterparts and the counterparts taken together will constitute one instrument.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 17
  • 18. MMPD Pty Ltd – Contractor Delivery Agreement17.4 Entire Agreement This Agreement, together constitutes the entire Agreement between the Parties in connection with its subject matter and supersedes all previous Agreements or understandings between the Contractor and MMPD in connection with its subject matter.17.5 Further assurances Each party will sign and complete all further documents as may be necessary to effect, perfect or complete the provisions of this Agreement and the transactions to which it relates.17.6 Notices A notice, approval, consent or other communication (Notice) in connection with this Agreement must be in writing and sent by standard prepaid post or by facsimile marked and addressed in accordance with the details provided in the Recitals section of this Agreement.17.7 Non-Competition During the term of this Agreement, the Contractor may provide services to third parties, provided that the Contractor must not, for the duration of this Agreement, be engaged by or have a direct or indirect interest in any other business, person, company or partnership whose interests conflict with those of the MMPD or any of its Related Body Corporates, without first obtaining the prior written consent of MMPD (which consent will not be unreasonably withheld).17.8 No Subcontracting (a) The Contractor must not, without MMPD’s prior written consent, sub-contract any of its obligations under this Agreement. (b) Except where it is expressly stated that a party must act reasonably in exercising a right or power under this contract, the party may act in its absolute discretion and is under no obligation to consider the interests of any other person.17.9 Jurisdiction This Agreement and the transactions contemplated by it are governed by the law in force in Queensland. The parties agree to the exclusive Jurisdiction of the Courts of Queensland in the event of a dispute.17.10 Relationship between the Parties (a) The Contractor is an independent contractor of MMPD and neither it nor the Nominated Personnel are agents, employees or joint venturers of MMPD. (b) The Contractor must not represent, and must ensure that neither the Nominated Personnel nor any other representative represents the Contractor or its representatives as being employees, partners or agents of MMPD. (c) The Contractor will not knowingly be party to the doing of any act or to any matter or thing that is prejudicial to the goodwill, commercial reputation or overall public image of MMPDc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 18
  • 19. MMPD Pty Ltd – Contractor Delivery Agreement or any of its Related Body Corporates, except to the extent that compliance with this clause is illegal or restricts the Contractor’s legitimate and usual commercial activities.17.11 Severability Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.17.12 Survival Any indemnity or obligation of confidentiality under this Agreement survives termination of this Agreement. Any other provision by its nature intended to survive termination, survives termination of this Agreement.17.13 Waiver (a) A provision of or a right created under this Agreement may not be: i) waived except in writing signed by the party granting the waiver; or ii) varied except in writing signed by the parties.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 19
  • 20. MMPD Pty Ltd – Contractor Delivery Agreement18. Schedule 1 - Details 1. Services As described in Schedule 2 - Services 2. Timetable 3. Commencement Date [Insert date] 4. End date (Subject to clause Error! Reference source not found.) 5. Fees - inclusive of GST as set out in Schedule 2 - Services 6. Nominated Personnel (see Clause 4) 7. Special Conditions  each driver must have a current driver’s licence (appropriate to the vehicle being used);  comprehensive motor vehicle insurance for each vehicle used for providing the services;  public liability insurance (see clause 10). 8. Notices (see clause 17.6 ) 9. Target Delivery/Date/Time Mon-Friday before 6am and Sat/Sun before 6:30am.c:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 20
  • 21. MMPD Pty Ltd – Contractor Delivery Agreement19. Schedule 2 - Services19.1 Receipt of Publications (a) The Contractor must take delivery of the Publications, from the MMPDs clients, on the delivery day and at the time as directed by MMPD. (b) The Contractor will be expected to sign a proof of receipt slip provided by MMPD verifying the number of Publications supplied to the Contractor for distribution.19.2 Delivery of Publications (a) The Contractor must deliver the correct number of copies of Publications, and any other materials nominated by MMPD, to nominated Retail Outlets for sale (in display stands or units where applicable) before the Target Delivery Date/Time each week. (b) The Contractor must ensure that the Publications are not available for sale before the relevant on-sale date, unless otherwise instructed by MMPD. (c) The Contractor must not deliver to the Retail Outlets any materials concurrently with the Publications other than such materials as are nominated for delivery by MMPD. (d) The Contractor must obtain a signature, as proof of delivery, from nominated outlets.19.3 Disposal of waste Unless otherwise agreed between MMPD and the Contractor, the Contractor is responsible for the disposal of unsold Publications and associated waste material (including plastic wrapping) at its own cost. Such waste must be disposed of responsibly and in an environmentally acceptable manner. It must not be discarded in a public place or left at a site without the express permission of the owner or occupier of the site.19.4 Right to Modify Notwithstanding the terms set out above, MMPD may from time to time modify the method of provision of the Services by the Contractor (including geographic areas, number of Retail Outlets, nominated Printing Depot, Target Delivery Date/Time, Collection Of Returns and volumes/sizes of Publications and products) by providing the Contractor one week’s prior notice of the modification.19.5 Missed Deliveries Any failure by the Contractor to deliver Publications, or other materials nominated by MMPD for delivery by the Contractor, must be remedied by the Contractor within 1 hours of receiving a requestc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 21
  • 22. MMPD Pty Ltd – Contractor Delivery Agreement to that effect, or within such other time as agreed between MMPD, the Contractor and the Retail Outlet concerned. MMPD may recover any costs incurred from using a third party to re-deliver publications if the Contractor fails to re-deliver publications within the agreed timeframe.20. Schedule 3 - FeesMetropolitan QLD cost per drop fee $5.50 plus fuel plus GSTWhat other fees $25.00 plus GST per hourc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 22
  • 23. MMPD Pty Ltd – Contractor Delivery Agreementc:userssimonappdatalocalmicrosoftwindowstemporary internetfilescontent.outlookl5u1thbgcontractor distribution agreement v2.doc Rostron Carlyle Solicitors 23
  • 24. 21. Signing pageExecuted as an Agreement:Executed by xxxx xxxxxxx as ContractorABN 5555 55555 55555 Signature of Contractor(Write name above line)Executed by MMPD Pty Ltd ACN 118 599625 in accordance with Section 127 of theCorporations Act 2001 Signature of sole director and sole company who states that he is the sole director and thesecretary sole company secretary of the company.Simon David Coulter