Disclaimer

DEFINITIONS AND INTERPRETATION

1.1.   “Agreement” means this document, together with the Schedules and any annexures, along with any amendments made in accordance with this Agreement;

1.2.   “Confidential Information” means information that:

1.2.1.      is by its nature confidential;

1.2.2.      is designated by the Client or the Investigator as confidential; or

1.2.3.      the Client or the Investigator knows or ought to know is confidential;

1.2.4.      and includes without limitation the terms of the Agreement and all information about the Client, the Investigator, their respective employees, agents, property, policies and operations which is made available or which becomes known during the terms of this Agreement or as a result of executing this Agreement but does not include information which:

1.2.5.      was in public domain at the time of its disclosure; or

1.2.6.      became part of the public domain after its provision by the Investigator or its creation by the Investigator or the Contractor under this Agreement, otherwise than through a disclosure by the Contractor or any person to whom it has disclosed Confidential Information.

1.3.   “Expenses” means debts and costs incurred, payments, purchases and fees paid and monies spent by the Investigator, or where credits in a cashless system are expended their equivalent cash value, in order to provide the Services.

1.4.   “Fee” means the amount of Australian currency and/or the method of calculating that amount, specified in Item 3 of the Schedule

1.5.   “Half-day” means a period of between 4 and 6 hours;

1.6.   “Hour” includes part thereof

1.7.   “Parties” means the parties to this the Agreement and their respective successors and permitted assigns, and Party means any of them;

1.8.   “Remainder” means any monies remaining from the Retainer after it having been set against the Fee, the Expenses and any other monies owed to the Investigator (Including, for example, amounts payable as a result of a breach of the Agreement by the Client)

1.9.   “Retainer” means any monies paid in advance of the full provision of the

1.10.          “Services” means all services required to be performed by the Contractor under this Agreement including as set out in Item 2 of the Schedule subject to any amendment as agreed between the Parties from time to time;

1.11.          “Standard Terms” means the terms present in this document, together with the Schedules, along with any amendments made in accordance with the Deemed Acceptance clause of this agreement;

1.12.          “Start Date” means the date on which the last Party signs the Agreement;

1.13.          “Term” means the date specified in Item 2 of the Schedule;

1.14.          “Timetable” means the timetable for the performance of the Services as set out in Item 2 of the Schedule or otherwise as agreed by the Parties in writing.

1.15.          In the Agreement, the following rules apply except where the context requires otherwise:

1.15.1.  the singular includes the plural and conversely;

1.15.2.  if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

1.15.3.  a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of, or schedule or annexure to, the Agreement, and a reference to the Agreement includes any schedule or annexure;

1.15.4.  a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

1.15.5.  a reference to “writing” includes an email, scanned document or facsimile transmission and any means of reproducing words in a tangible and permanently visible form;

1.15.6.  a reference to monies, dollars or $ is to Australian currency unless otherwise specified;

1.15.7.  a reference to time is to Sydney, Australia time;

1.15.8.  a reference to the Contractor includes, where the context so admits, its employees, agents and authorized contractors;

1.15.9.  a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

1.15.10.                      a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

1.15.11.                      the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

1.15.12.                      any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

1.15.13.                      any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and

1.15.14.                      if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

1.15.15.                      headings and paragraph numbering are for ease of reference only and do not affect interpretation.

SUPPLY OF SERVICES

2.1.   The Investigator will supply the Services

2.1.1.      substantially in accordance with the Agreement;

2.1.2.      with due skill and care; and

2.1.3.      in accordance with any reasonable instructions and directions given by the Client from time to time.

2.2.   The Investigator will use all reasonable efforts to provide the Services in accordance with the timetable requested by the Client.

2.3.   The Investigator named herein may act as agent for a 3rd party of appropriate skill and qualification who may physically perform some or all of the services.  The arrangement between the Investigator named herein and the 3rd party is one of agency, and not one of subcontract nor of employment.

FEES, EXPENSES AND PAYMENT

3.1.   The Client will pay the Investigator the Fee in consideration of the Services.

3.1.1.      Unless otherwise agreed in advance, the services shall be calculated at an hourly rate, set out in Item 3 of the Schedule.

3.1.2.      The Investigator will issue an itemized invoice for the Services upon request

3.1.3.      The Investigator will be entitled to reimbursement by the Client for reasonable Expenses incurred as part of providing the Services.  This shall be in addition to the Fee.

3.1.4.      Where expenses exceed 20% of the rate of services, these expenses will be approved by the Client in advance of the expense being incurred.

3.1.5.      Unless otherwise agreed in advance, where motor vehicle travel is required, this shall be charged as an expense calculated per kilometre travelled, at a rate set out in Item 3 of the Schedule.

3.1.6.      The Investigator will issue an itemized statement of the expenses incurred upon request.

3.2.   Payment of any and all Fees, Expenses, and the terms of payment of the same shall be essential conditions of this agreement.

3.3.   The amount of the Fees or a method for its calculation and the terms of payment will be set out in Item 3 of the Schedule.

3.4.   The Investigator may set off against the Retainer the Fee and/or the Expenses and any other monies owed to the Investigator (including, for example, amounts payable as a result of a breach of the Agreement by the Client) before returning the Remainder.

3.5.   If the Client fails to pay an amount due under this Agreement by the due date, the Investigator reserves the right to take appropriate action, including withholding information, including the results of any inquiries, withholding delivery of any Reports, Media (including video and photographs) or other Documentation, bailing any property held on behalf of the client, charging interest on the overdue amount, charging a Late Fee of up to 10% per month on the outstanding balance and taking debt recovery action.

3.6.   Where due Fees and Expenses are not paid by the Client by the due date, a reminder notice will be sent.  Should Fees and Expenses still not be paid on week after the reminder notice, Clauses 4.2 and 3.8 shall come into effect.

3.7.   Where due Fees and Expenses are not paid by the expiration of one week following the reminder notice described in Clause 3.7, any discounts present in any quote, estimate, invoice, or reminder may be removed at the discretion of the Investigator.  The Client shall then be required to pay the full amount of Fees and Expenses without discount.

3.8.   Unless otherwise agreed, full payment shall be due seven (7) days from the date of invoice.

CONFIDENTIALITY AND PRIVACY

4.1.   The Client and the Investigator both agree to keep confidential and to ensure their respective employees, agents and subcontractors keep confidential, all Confidential Information:

4.1.1.      provided by the Investigator to the Client in connection with the Agreement; or

4.1.2.      created by the Investigator or the Client under the Agreement; and

4.1.3.      not to disclose such Confidential Information without the prior written consent of the Investigator acting in its absolute discretion.

4.2.   Where due Fees and Expenses are not paid by the expiration of one week following the reminder notice described in Clause 3.7, the Investigator shall be released from their privacy obligations to the Client and may publish publicly or directly to any third party partially or in full any or all information held in relation to the service and the Client.

4.3.   It is acceptable that as part of the nature of investigation services, it is foreseeable that it could be alleged that Investigator has committed an offence, including but not limited to Stalking.  In the event that the Investigator deems it necessary, confidential information may be disclosed to Police or investigation authorities to the extent necessary to illustrate the lawful purpose for the Investigator’s actions.

INTELLECTUAL PROPERTY

5.1.   Unless otherwise agreed, the Investigator will own all material created by the Investigator, its employees, agents and subcontractors in performing the Services for the Client.  To facilitate this, the Client:

5.1.1.      assigns to the Investigator, including by way of an assignment of future intellectual property, all intellectual property rights in all such material (whether that material is created alone or jointly with the Investigator);

5.1.2.      acknowledges that no additional documentation is necessary to complete the assignment and by virtue of this clause all such intellectual property rights will vest in the Investigator;

5.1.3.      will ensure that any of the Client’s employees, agents or subcontractors that own intellectual property in such material will assign to the Investigator all intellectual property rights referred to in paragraph 5.1; and

5.1.4.      will procure the prior written consent of the Client’s employees, agents or subcontractors to the infringement of any moral rights which they may have in relation to such material.

WARRANTIES

6.1.   Each Party warrants to the other that it has the power to enter into the Agreement and to perform its obligations under the Agreement.

6.2.   The Investigator warrants that all Services will be supplied to the Client substantially in accordance with the Agreement.

LIMITATION OF LIABILITY

7.1.   The Client acknowledges that other than as set out in clause 6, the Investigator makes no warranties under the Agreement.

7.2.   The Investigator excludes from the Agreement all conditions, warranties and liabilities implied or imposed by statute, general law or custom except any liability or implied condition or warranty, the exclusion or limitation of which would contravene any statute or cause any part of this clause to be void.

7.3.   To the extend permitted by law:

7.3.1.      the investigator excludes liability (including liability in negligence) for any consequent or indirect loss or damage, including for example loss of revenue, wasted overheads, loss of opportunity, loss of profit and any costs or damages sustained as a result of a claim by a third person, which may arise in respect of the Services or otherwise in connection with the Agreement; and

7.3.2.      the Investigator’s total liability to the Client under or in relation to the Agreement (includes liability for negligence and for breach of the Agreement) arising in relation to acts, omissions and events occurring in a particular year of the Agreement is limited in aggregate to the price paid by the Client under the Agreement in the year of the Agreement during which the liability was incurred.

TERM AND TERMINATION

8.1.   The Agreement will begin on the Start Date and will continue either

8.1.1.      until the Services are completed; or

8.1.2.      for the Term as set out in Item 1 of the Schedule.

8.2.   If the Client wishes to extend the Term it must be with the agreement of the Investigator.

8.3.   Either Party may terminate the Agreement by notice in writing to the other Party if the other Party is in breach of a term or condition of this Agreement and the breach is not remedied within seven (7) days of service on the other Party of a written notice specifying the breach and requiring it to be remedied.

8.4.   The Investigator may terminate the Agreement with immediate effect by giving written notice to Client if;

8.4.1.      the Client becomes unable to pay its debts when they become due;

8.4.2.      the Client enters into any arrangement between itself and its (or any class of its) creditors;

8.4.3.      the Client ceases to carry on business;

8.4.4.      the Client has a mortgagee enter into possession or dispose of the whole or any part of its assets or business;

8.4.5.      the Client enters into liquidation or any form of insolvency administration;

8.4.6.      the Client has a receiver, receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person appointed to the whole or any part of its assets or business;

8.4.7.      the Investigator becomes aware of a potential Conflict of Interest which the Investigator deems significant;

8.4.8.      the Investigator becomes aware of anything which leads them to believe that the continuation of the Services may endanger the safety of any person or facilitate the commission of a criminal offence or the breach of a court order including the breach of bail conditions.

8.5.   The Investigator may also terminate the Agreement at any time without cause by giving the Client seven (7) days written notice.

8.6.   Termination of the Agreement (for whatever cause) will not affect any right or cause of action which has accrued to the Party which terminates the agreement at or prior to the date of termination.

RELATIONSHIP AND ASSIGNMENT

9.1.   The Agreement constitutes a relationship of principal (on the part of the Client) and independent contractor (on the part of the Investigator) and no employment, partnership or joint venture relationship is created or exists between the Parties.

9.2.   Any part or the whole of any Services provided under the Agreement may be Assigned by Progress Pilot to another person (a “Third Party”) at the sole discretion of Progress Pilot.  In such a case this Third Party takes the place of Progress Pilot in relation to those services without being an employee, agent or in any way controlled or directed by Progress Pilot.

9.3.   Where services are assigned to a Third Party these terms shall apply to that Third Party as if they were Progress Pilot to the full extent possible.

9.4.   Any Third Party to whom any services are assigned agrees to be bound by the terms of the Agreement as Progress Pilot would have been bound, however such services are performed as an independent person or entity, without the Third Party acting as an agent, employee or representative of Progress Pilot in any way.

DISPUTE RESOLUTION

10.1.                    A Party claiming that a dispute has arisen under the Agreement (Dispute) must notify the other Party giving written details of the Dispute.  The Parties agree to negotiate in good faith on a commercially realistic basis to resolve the Dispute and will refer resolution of the Dispute to officers within each Party who are authorized to hear the Dispute before commencing any legal proceedings in relation to the Dispute.

10.2.                    Any Dispute which cannot be settled under clause within a reasonable time must be referred for determination by a person appointed for that purpose by the Parties and failing Agreement, appointed by the President of the Institute of Arbitrators and Mediators Australia (NSW Division) or by other method agreed between both the Investigator and the Client.

10.3.                    Any determination made under the above clause is binding on the Parties and the Commercial Arbitration Act 2010 (NSW) applies to the determination except to the extent otherwise agreed by the Parties.

10.4.                    Nothing in this clause will prevent a Party from seeking interlocutory relief.

SPECIAL CONDITIONS

11.1.                    The Agreement is subject to the special conditions (if any) set out in Item 4 of the Schedule.  In the event of inconsistency between the special conditions and the provisions of the Agreement, the special conditions will prevail.

DEEMED ACCEPTANCE

12.1.                    As an alternative to Execution herein, the agreement may be entered into verbally or agreement to its terms evidenced in writing.

12.2.                    Reference to the Investigator’s “Standard Terms” shall constitute reference to this document.

12.3.                    Acceptance on the part of the Client shall be expressly or impliedly in writing, or expressly or impliedly verbally, or deemed by any payment or agreement to make payment to the Investigator with agreement that the Investigator’s “Standard Terms” shall apply, either partly or in full.

12.4.                    Acceptance on the part of the Investigator shall be either expressly in writing or by acceptance of any payment or by partial performance.

12.5.                    Any term herein may be modified by agreement between the Investigator and the Client.  Where it is not shown that the terms have been modified, the Standard Terms herein shall apply.

GENERAL

13.1.                    Governing law and jurisdiction.  The laws that are application in New South Wales, Australia govern the Agreement and each Party submits to the jurisdiction of the courts of that state and any courts which may hear appeals from those courts.

13.2.                    Entire agreement.  The Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties in connection with its subject matter.

13.3.                    Amendment.  The Agreement may only be amended in writing.

13.4.                    Assignment.  The Client may only assign the Agreement or a right under this Agreement with the prior written consent of the Investigator acting in its absolute discretion.

13.5.                    Waiver.  A Party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.  A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy must be in writing and signed by the Party giving the waiver.

13.6.                    Severance.  A term or part of a term of the Agreement that is illegal or unenforceable may be severed from the Agreement and the remaining terms or parts of the term of this Agreement continue in force.

13.7.                    Execution.  The Agreement may be executed in counterparts, including facsimile counterpart.  All executed counterparts constitute one document.

13.8.                    Effectiveness.  Each Party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to the Agreement and any transaction contemplated by it.

13.9.                    Payment of taxes and charges.  Subject to clause 3, any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with the Agreement or any transaction contemplated by the Agreement, must be paid by the Client.

13.10.                Force Majeure.  Neither Party will be liable to the other for the consequences of any delays or failures of its performance which are caused by any event beyond the first party’s reasonable control, including without limitation acts of God, fire, flood, accident, terrorism, strike or riots and either party may terminate the Agreement if such an event occurs and continues for a period of 30 days or more.