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A. The Client has requested and the Workflow Expert has agreed to provide the Services
(including the Deliverables) in accordance with the Project Specifications to the Client from the
B. The Parties have entered into this Agreement to record the terms between them.
THE PARTIES AGREE AS FOLLOWS
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise require:
Agreement means agreement for professional services agreement, (including the recitals,
schedules, annexures and exhibits to it), as may later be amended or supplemented by the
Parties in writing;
Business Day means Monday to Friday, excluding public holidays;
Commencement Date means the date specified as such in item 2(a) of the Schedule, or if not
specified in that place, the date of execution or signature (as the case may be) by the last Party to
execute or sign (as the case may be) this Agreement;
Competitor of the Client means any third party that does or intends to develop, manufacture,
promote, sell, licence, distribute or provide products or services that are substantially similar to
the Client's products or services;
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost,
liability, action, proceeding, right of action, claim for compensation or reimbursement or
liability incurred by or to be made or recovered by or against a person, however arising and
whether ascertained or unascertained, or immediate, future or contingent;
Completion Date means the date specified in item 2(b) of the Schedule or as otherwise agreed;
Confidential Information means information that:
(a) is by its nature confidential;
(b) is designated by any Party as confidential; or
(c) a Party knows or ought to know is confidential,
(a) information of, or about, any entity in the Client, including financial information and
other reports or records of or relating to the Client and its operations, acquired by the
Workflow Expert solely by virtue of the performance of the Services pursuant to this
(b) information created, discovered, developed or made known to the Workflow Expert by the
Client during the period of, or arising out of, the Workflow Expert's performance of the
(c) trade secrets, procedures, designs, processes, inventions and marketing information of
(d) matters of a technical nature, research and development details, financial statements,
books and records, details of asset holdings, liabilities, planning, management, marketing
and promotional procedures, quotations, concepts, methods, Customer information, systems,
data bases and all sources of computer hard and software either Party;
(e) information relating to either Party’s customers and the Workflow Experts including, lists
of customers and the Workflow Experts, details of contracts and dealings with customers and
the Workflow Experts and other parties; and
(f) any other information classifiable in equity as confidential information;
Client Intellectual Property means pre-existing Intellectual Property of the Client used in but
not created as part of the development of the Deliverables by the Workflow Expert, including the
look and feel of the Client's website;
Defect means any performance characteristic of a Deliverables which makes the whole or any
part of the Deliverables materially inoperable or unable to meet or materially inconsistent with
the Project Specifications. Defective has a corresponding meaning;
Deliverables means an item, whether module development, software, website design,
documentation, data migration services or otherwise, to be delivered or supplied by the
Workflow Expert under this Agreement, including those items specified in the Project
Deliverables Acceptance Date means the date on which the Client must give notice to the
Workflow Expert confirming acceptance of the Deliverables as provided or, if any Defects are
located, give notice for the Workflow Expert to rectify such Defects;
Expenses means any expenses incurred by the Workflow Expert in performing the Services;
Intellectual Property means:
(b) all rights conferred under statute, common law or equity in relation to inventions
(c) registered and unregistered trademarks;
(d) registered and unregistered designs;
(e) circuit layouts;
(f) confidential information; and
(g) all other rights resulting from intellectual activity in the industrial, scientific, literary or
Force Majeure means any event beyond the reasonable control of the Party affected and includes
any event due to natural causes that happens independently of human intervention;
GST means any tax, levy, charge or impost levied on the value of any facilities, Deliverables,
services or other things supplied by the Workflow Expert to the Client under this Agreement by
any other Bill or Act of the Parliament of the Commonwealth of Australia;
Material means any material, whether tangible or intangible, and includes:
(a) documents, records, equipment and any other Deliverables; and
(b) software (whether in human or machine readable form), data and any other information;
Services means services provided or to be provided by the Workflow Expert to the Client in
accordance with the Project Specifications, including the development and/or delivery of any
Payment means the fees payable to the Workflow Expert for Services performed as referred to in
item 4(a) of the Schedule;
Project Specifications means the Project Specifications as referred to in the selected item 3 of
Taxes means all taxes imposed by any government or authority of Australia or elsewhere
including, but not limited to, all income tax, PAYG tax, capital gains tax, stamp duty, financial
institutions duty, Customer tax, payroll tax and GST;
Tax Invoice means an invoice that has been submitted to the Client and:
(a) the amount claimed in the tax invoice is due for payment pursuant to this Agreement;
(b) the tax invoice complies with the requirements of the GST law;
Term means the period from the Commencement Date to the Completion Date unless otherwise
terminated earlier by either party pursuant to Clause 9 of this Agreement;
Termination Payment means the fees payable by the Client to the Workflow Expert on
termination of this Agreement pursuant to Clause 9, as calculated under item 4(c) of the
Third Party Materials means textual, graphical, audio or like materials, together with any
software, which is incorporated into a Deliverables;
Third Party Rights means Intellectual Property Rights owned by or licensed to third parties
(a) computer programs owned by third parties and licensed by Workflow Expert and any
subcontractors of Workflow Expert to develop a Deliverables; and
(b) any literary, dramatic, artistic and musical works owned by third parties and licensed to
Workflow Expert for inclusion in a Deliverables;
Third Party Software means any computer program or modification or enhancement of a
computer program, which is not owned by the Workflow Expert or a related corporation of the
Workflow Expert and which is used by the Workflow Expert in connection with performing the
Services, or which is at any time supplied to the Client by the Workflow Expert or its
subcontractors or incorporated into a Deliverables;
Work Product means the finished product, as well as any drafts, texts, graphics, photos, videos,
designs, visual elements, trademarks, code and anything else that the Workflow Expert works on,
conceives, creates, designs, develops, invent or reduces to practice as part of this project.
The Workflow Expert will:
(a) Provide the Services to the Client;
(b) develop and provide to the Client the Deliverables; and
(c) deliver the Services in accordance with:
(i) the Project Specifications;
(ii) the other terms and conditions of this Agreement (including any Change Requests).
3.1 Project. The Workflow Expert will provide to the Client:
(a) Services in the form of Ongoing Works in accordance with the Project Specifications.
(b) Deliverables which conform to the requirements specified in the Project Specifications.
3.2 Time Frame. The Workflow Expert must provide the Services and Deliverables required
under Clause 3.1 to the Client by no later than the Completion Date.
3.3 Deliverables Acceptance Date. The Client must notify the Workflow Expert within 7 days
from receipt of the Services if it confirms acceptance of the Deliverables as provided or, if any
Defects are located, give notice for the Workflow Expert to rectify such Defects.
3.4 Change Requests. The Client must notify the Workflow Expert at least two weeks prior to the
Completion Date of any Change Requests. The Workflow Expert will provide the Client with a
quote for any additional Payments or Expenses associated with the Change Requests within one
week. The Workflow Expert will not commence any works under the Change Requests until the
quote is accepted in writing by the Client.
4. PAYMENTS AND EXPENSES
4.1 The Client must pay the Payment to the Workflow Expert upon completion of the Project
according to the Project Specifications.
4.2 Pursuant to Clause 4.1, the Workflow Expert will invoice the Client for work done weekly.
The Client will pay the amount owed within 7 days of receiving the invoice.
4.3 In the event that payment required under Clause 4.2 is not made within the required time
frame, an additional amount of a late fee of 5.0% per month on the outstanding amount is due.
4.4 The Client agrees to pay for the documented expenses in the Project Specifications and for
any other expenses the Workflow Expert may incur after receiving authorisation and approval
from the Client in writing.
5.1 Assignment. The Workflow Expert agrees to assign and hereby assigns, absolutely and
beneficially to the Client all rights, titles and interests to all existing and Intellectual Property
Rights arising out of the the Deliverables. The Client agrees that the Workflow Expert may use the
Deliverables for the purpose outlined in item 5(b) of the Schedule.
5.2 Proof of Ownership. The Workflow Expert agrees to assist the Client to prove ownership of
the Deliverables if required in the future provided that any required expenses are paid by the
5.3 Pre-Existing Material. This Agreement does not affect any pre-existing Intellectual Property
rights owned by the Workflow Expert or licenced from a third party which may be used to create
the Deliverables and performance of the Services or part of the Deliverables.
5.4 Workflow Expert's Right to use IP. The Client agrees to grant permission for the Workflow
Expert to use the Client’s Intellectual Property for the sole purpose of the creation of the
Deliverables and performance of the Services or part of the Deliverables.
5.5 Workflow Expert's Rights. Permitted Uses The Client grants permission in the form of a
licence for the Workflow Expert to use the Deliverables in the following ways: The client gives
the workflow expert permission to use the work product as part of the workflow experts portfolio
and websites, in galleries, and in other media. The client also permits the workflow expert to use
the company logo on the expert's portfolio and websites, in galleries, and in other media.
6. COMPETITIVE ENGAGEMENTS
6.1 The Workflow Expert agrees not to provide work or services for a Competitor of the Client
until this contract ends, unless the Workflow Expert obtains written pre-approval from the Client.
7.1 For the duration of this contract, the Workflow Expert agrees not to:
(a) encourage or induce any of the Client's employees or service providers to stop working for
(b) encourage or induce any of the Client's customers or clients to stop doing business with
the Client; or
(c) employ or engage anyone who has worked for the Client within six months of the of the
7.2 Clause 7.1 applies to actions taken by the Workflow Expert for itself or on behalf of Third
7.3 Clause 7.1(c) is not breached if the Workflow Expert hires a former Client employee not
directly linked to this project through general advertisements to the public.
8.1 Authority To Enter Into Contracts. The Parties warrant that they each have the authority to
enter into this Agreement and perform all of the obligations required.
8.2 Degree of Skill, Care and Diligence. The Workflow Expert represents and warrants that it
will perform the Services with the degree of skill, care and diligence expected of a consultant
experienced in providing the same or similar services; that it will comply with any applicable
laws and standards relating to the performance of the Services; and that any materials supplied
will be reasonably fit for the purpose for which they are supplied.
8.3 No infringements of Intellectual Property Rights - Workflow Expert. The Workflow
Expert warrants that the Deliverables, the performance of the Services and the Deliverables will
not infringe the Intellectual Property Rights of any person including any Third Party Rights,
Materials or Software.
8.4 Compliance with Laws and Defamation. The Workflow Expert warrants that the creation of
the Deliverables, performance of the Services or delivery of the Deliverables will comply with
the laws of Australia and that none of the material created will be defamatory or obscene.
8.5 Client Review. The Client warrants that it will review the Deliverables, answer any questions
regarding the Project Specifications and provide feedback within a reasonable time if requested.
8.6 No Infringements of Intellectual Property Rights - Client. The Client warrants that any
material provided to the Workflow Expert for the purpose of incorporation into the Deliverables
will not infringe the Intellectual Property Rights of any person including any Third Party Rights,
Materials or Software.
9. TERM AND TERMINATION
9.1 Termination Clause. This Agreement commences or is deemed to have commenced on the
Commencement Date, December 04, 2018, and is ongoing until terminated in accordance with
this Clause 9.
9.2 Termination. Either Party may terminate this Agreement for any reason with 7 days written
notice to the other party in compliance with Clause 14.
9.3 The Workflow Expert must immediately cease working on the Deliverables if it sends or
receives a notice under Clause 9 or unless otherwise agreed upon in writing.
9.4 Ongoing Clauses. The following clauses may continue to apply even after termination of the
Agreement pursuant to Clause 9:
(a) Clause 5 (Ownership)
(b) Clause 7 (Non-Solicitation)
(c) Clause 8 (Representations)
(d) Clause 11 (Confidential Information)
(e) Clause 12 (Limitation of Liability)
(f) Clause 13 (Indemnity)
(g) Clause 15 (General)
10. RELATIONSHIP OF PARTIES
10.1 The Parties agree that it is intended that this Agreement shall create the relationship of
Client and Independent contractor between them and that it is not their intention to create any
other relationship and, in particular, the relationship of employer and employee or the
relationship of partners. The Workflow Expert shall not:
(a) represent itself or allow itself to be represented as an employee or agent of the Client; or
(b) by virtue of this Agreement be or become an employee or agent of the Client.
10.2 The Parties agree that:
(a) the Workflow Expert will use its own equipment, tools and material to complete the work;
(b) the Workflow Expert is responsible for the day to day performance and operation of the
(c) the Client will not intervene and control the way in which the Workflow Expert carries out
the work; and
(d) the Client will not provide the Workflow Expert with any training.
10.3 Neither party can bind the other to any agreement with a third party.
11. CONFIDENTIAL INFORMATION
11.1 The Workflow Expert agrees to keep the Confidential Information provided to it or obtained
by it pursuant to or as a result of this Agreement strictly confidential and not to disclose or
divulge the same to any other person or entity except if disclosure is required by law.
11.2 Both the Client and the Workflow Expert agree to keep Confidential Information relating to a
Third-Party provided or obtained as a result of this Agreement strictly confidential and not to
disclose or divulge the same to any other person or entity except if disclosure if required by law.
11.3 Each Party must also:
(a) use the Confidential Information, only for the purpose of this Agreement;
(b) maintain the confidentiality of the Confidential Information and ensure that the
Confidential Information is not disclosed to or used for the benefit of any third party without
the prior written consent of the other Party;
(c) take all steps and do all things as may be necessary, prudent or desirable in order to
safeguard the confidentiality of the Confidential Information.
12. LIMITATION OF LIABILITY
Neither party is liable for breach-of-contract damages that the breaching party could not
reasonably have foreseen when it entered this contract.
13.1 Liability of Client. The Client will not be liable to the Workflow Expert for:
(a) any variations to the Services or Deliverables made by the Workflow Expert without the
prior written approval of the Client;
(b) any loss arising out of use of the Services or the Deliverables not performed in accordance
with this Agreement; and
(c) the accuracy of resources, information or documents provided to or for the use of the
13.2 Liability of Workflow Expert. The Workflow Expert will not be liable to the Client for:
(a) In no circumstances will the Workflow Expert be liable for any loss of interest, revenue,
profit, or any data, or for any consequential, indirect, incidental or special damages suffered
by the Client relating to the subject matter of this Agreement, including but not limited to:
(i) the maintenance of confidentiality of any and all access codes, log in details, and
(ii) the installation of security mechanisms to maximise the use of the Services;
(iii) the failure of computer equipment, software, or any other Deliverable used in
connection with use of the Services;
(iv) the unauthorised use of the Services, access codes, log in details, and passwords;
(v) the failure to achieve any goals through the use of the Services; and
(vi) any and all activities in connection with the improper or unauthorised use of the
(b) To the fullest extent permitted by law, Workflow Expert's liability to the Client (whether
such liability is in contract, tort, negligence, or for any breach of warranty, representation or
statute) for any act or omission done in connection with the subject matter of this Agreement,
will be limited in aggregate to an amount equal to any outstanding Fees.
13.3 Indemnity of the Client. The Workflow Expert agrees to indemnify the Client on a full
indemnity basis from and against all third party claims or proceedings arising out of:
(a) the work completed by the Workflow Expert under this Agreement;
(b) a breach of the Workflow Expert's obligations under this Agreement; or
(c) a breach of a Representation or Warranty under Clause 8 of the Agreement.
13.4 Indemnity of the Workflow Expert. The Client agrees to indemnify the Workflow Expert
on a full indemnity basis against any loss or damage from and against all third party claims or
proceedings arising out of:
(a) a breach of the Client’s obligations under this Agreement; or
(b) a breach of a Representation or Warranty under Clause 8 of the Agreement.
14.1 Form of Notice. All notices and other communications by or to the Parties to this
Agreement shall be in writing and signed by a director, secretary or other duly authorised officer
or the solicitor of the party giving such notice or communication.
14.2 Addresses for Notices. Notices and communications may be delivered by hand or sent by
post or email to the party to which it is addressed at the head of this Agreement or at such other
address as the addressee may specify for such purpose to the other parties by notice in writing.
14.3 Time of Service. Such notices and communications shall be deemed to be duly given,
served or made when the recipient has replied confirming receipt of the email.
15.1 Assignment. The Workflow Expert cannot assign its rights or delegate its obligations under
this Agreement to a third party without first receiving the Client’s written permission. The Client
may assign its rights and delegate its obligations under the Agreement to a third party in the
event that the Client is bought out or on-sells the work product to another party.
15.2 Counterparts. This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the same instrument.
15.3 Further Assurances. Each Party to this Agreement shall do all things necessary and sign,
execute and deliver all deeds and other documents as may be legally necessary or reasonably
required of it by notice from another Party to carry out and give effect to the terms and intentions
of this Agreement and to perfect, protect and preserve the rights of the other parties to this
15.4 Costs. Each Party must bear its own costs of and incidental to the preparation and execution
of this Agreement. The Service Workflow Expert must pay all stamp duties or taxes of a similar
nature on this Agreement.
15.5 Force Majeure. If by an act of Force Majeure a Party is unable to perform in whole or in part
any obligation of this Agreement, that Party is relieved of that obligation to the extent and for the
period that it is unable to perform and is not liable in respect of such inability.
15.6 Severability. This Agreement shall, so far as possible, be interpreted and construed so as
not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true
interpretation or construction is held to be illegal, invalid or unenforceable:
(a) that provision shall, so far as is possible, be read down to the extent that it may be
necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable
in all the circumstances so as to give it a valid operation; or
(b) if the provision or part of it cannot effectively be read down, that provision or part of it
shall be deemed to be void and severable and the remaining provisions of this Agreement
shall not in any way be affected or impaired and shall continue notwithstanding that
illegality, invalidity or unenforceability.
15.7 Independent Legal Advice. The Client acknowledges that it has read the terms of this
Agreement and understands the same. If further acknowledges that it has had the opportunity to
obtain independent legal advice regarding the effect and impact of the Agreement.
15.8 Governing Law and Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the laws of
(b) The Parties irrevocably submit to and accept, generally and unconditionally, the
nonexclusive jurisdiction of any of the Courts of Australia with respect to any legal action or
proceedings which may be brought at any time relating in any way to this Agreement.
15.9 Signatures. The Client and the Workflow Expert must sign this document using Bonsai’s esigning system. These electronic signatures count as originals for all purposes.
15.10 Variations. No variation of this Agreement, nor consent to a departure by a Party from a
provision, shall be of effect unless it is in writing, signed by all the Parties or (in the case of a
waiver) by the Party giving it. Any such variation or consent shall be effective only to or for which
it may be made or given.
That Startup Company PTY LTD
Christopher Drake, Director
Signed on December 1, 2018
WILLIAMWill Larkins , President
Signed on December 1, 2018
15.11 Entire Agreement. This Agreement contains the entire agreement between the Parties
with respect to its subject matter and supersedes all prior negotiations, understandings and
agreements, whether oral or written
© 2019 That Startup Company. That Startup Company PTY LTD
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