Terms and Conditions
Legal Terms and Conditions
We will provide the Services to you on the following terms and conditions. These terms must be read alongside the Key Terms, Service Guide and any Proposal we provide to you .
1 Definitions
1.1 In this Agreement the following expressions have the following meanings, unless otherwise stated:
Additional Services means any further Services you have requested for us to provide in accordance with set out in Item 7 of the Key Terms.
Business Day means a day other than a weekend or public or bank holiday in Victoria, Australia;
Charges is defined in the Key Terms and includes any rates for the Services as published by us from time to time and any Minimum Commitment;
Commencement Date means the commencement date specified in the Key Terms and if there is no date specified, the date that the last of the parties signs this Agreement;
Consultants means the employees, subcontractors and consultants, which we use to perform the Services;
Data Protection Legislation means any applicable data and privacy legislation and regulation including The Privacy Act (Cth) 1988 and the Australian Privacy Principals.
Deliverables means any outputs stemming from the provision of the Services such as reports and materials.
Employee means any employee, contractor and/or personnel engaged by you, who may be subject to (either directly or indirectly) the Services we provide.
Employee Data means all identifiable information relating to Employees including any personal and health data.
Engaged Services means the Services set out in Item 5 of the Key Terms you have requested us to provide to you.
Fees means the fees and rates payable for the Services or Deliverable as specified in the Key Terms, Services Guide proposal and/ or invoice;
Intellectual Property Rights means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including, but not limited to, all technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights, whether created, written developed or brought to existence by us or you in the provision of the Services;
Key Terms means those key terms set out in the ‘Key Terms’ section of this Agreement;
Legal Terms means these legal terms and conditions;
Location(s) means the location(s) where the Services are to be provided as set out in the Key Terms;
Minimum Commitment means the minimum Charges due under this Agreement as set out in the Key Terms;
Proposal means a proposal agreed between the parties under the terms of this Agreement from time to time, setting the scope of work, services provided and including Fees.
Services is defined in the Key Terms; and
Services Guide is the document we provide to you setting out the various Services we offer and the applicable details.
Term is defined in the Key Terms.
1.2 If you are contracting with us for the supply of Services directly to a third party then you will:
procure that such third party will comply with the terms of this Agreement; and
indemnify us for any claim, loss, damage or expense incurred by us as a result of any breach of the terms of this Agreement by such third party.
1.3 You acknowledge and agree that no Services will be provided to you until we have received the signed copy of this Agreement.
2. Services
2.1 We will perform the Services and produce any Deliverables in return for payment of the Charges.
2.2 All Deliverables will be produced based on the information and explanations supplied by you. It is not within the scope of our obligations to enquire as to, or to verify, the accuracy or completeness of information that we receive from you or any third parties.
2.3 All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us or any third party.
2.4 We will not be obliged to provide any Services or produce any Deliverables under this Agreement that are not described in the Key Terms.
2.5 We will only be obliged to provide the Services at the Location(s), unless otherwise agreed in writing.
2.6 We will use reasonable endeavours to provide the Services and Deliverables in accordance with the Key Terms. However, any times quoted for delivery, commencement or completion of any part of the Services or the Deliverables will be estimates only and time will not be of the essence.
2.7 The provision of Consultants, or our agents, to perform our obligations under this Agreement will be at our discretion.
3. Charges and Payment
3.1 You will pay us the Fees for the Services and Deliverables supplied in accordance with the applicable proposal.
3.2 If payment of the Fees is not received by any applicable due date either described in the Key Terms, the applicable proposal or on the relevant invoice provided to you, we will be entitled (without prejudice to any other right or remedy) to:
withhold provision of the Services or delivery of any Deliverables until payment is received in full and in cleared funds;
charge interest on the outstanding amount at the rate of eight per cent (8%) per annum;
require that you make advance payments of the Fees or other amounts due in full or in part prior to the supply or delivery of the Services or Deliverables; and/or
terminate this Agreement pursuant to clause 8.
3.3 You will make all payments without tax deduction unless a tax deduction is required by law. If you are required to make a tax deduction by law, the payment due from you to us will be increased to an amount which (after making the tax deduction) leaves an amount equal to the payment which would have been due if no tax deduction had been required.
3.4 You will indemnify us for any loss, liability or cost that we directly or indirectly suffer in relation to any tax other than tax levied under the law of Australia unless that loss, liability or cost is compensated by an increased payment.
3.5 Unless stated otherwise and subject to this clause, any amount required to be paid or consideration required to be provided under any other provision of this agreement is calculated to be exclusive of GST. If GST is payable in relation to a supply made by under this agreement, then, subject to the provisions of this clause, you will pay us an additional amount equal to the GST payable on that supply. It is our responsibility to determine whether GST is payable on any supply made under this agreement.
4. Your Obligations
4.1 You will comply with your obligations under this Agreement.
4.2 You acknowledge and agree that for us to be able to provide the Deliverables or the Services without interruption at your cost, you will ensure that your staff, consultants and contractors:
co-operate with and assist us in the performance of the Services;
promptly provide us with full and accurate information, data and explanations as and when required;
provide our Consultants with full and safe access to the Location;
where applicable, provide without charge suitable office accommodation, materials, equipment and facilities (including use of telephone and support services) as we and/or our Consultants reasonably require to carry out the Services.
4.3 You will procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Services.
4.5 If we are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of our obligations under this Agreement, by reason of your acts or omissions or failure to provide information or instructions or perform your obligations under this Agreement, then you will pay us any additional reasonable costs and expenses incurred by or on our behalf and any timetable in the Key Terms or other agreed target time specified for the performance by us of any of our obligations will be extended accordingly.
4.6 It is your obligation to ensure that the Key Terms, invoice or any other written notification we send to you confirming the terms of this Agreement, correctly states the information set out in them and if that information changes during the period of this Agreement, you must write to us to request a change to them.
5. Warranties
5.1 We will use reasonable care and skill in performing the Services.
5.2 We will investigate any problem or error in any Deliverables, provided that you notify us in writing within seven (7) days following delivery of the Deliverables, giving us all necessary information to be able to investigate the problem, breach or error and limit our liability to the right to re-submit the Deliverables or re-perform the Service.
5.3 You agree to use your reasonable endeavours to ensure that the information and explanations you supply are full and accurate and notify us in writing if there is any change to the information or explanations supplied.
5.4 Except as provided in this Agreement and to the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by us and all implied warranties are hereby excluded.
6. Liability and Exclusions
6.1 Our total liability to you (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to the total Charges paid (excluding GST and expenses) by you to us for the Services or Deliverables (as applicable) in the twelve (12) months immediately prior to the event(s) complained of.
6.2 Neither party will be liable for any indirect, consequential, special or incidental loss or damages of any kind including loss of revenue, loss of profits, failure to realise expected profits or savings, overhead costs or other economic losses, in contract, tort (including negligence) under any statute otherwise arising out of or in any way connected to this Agreement.
6.3 The parties acknowledge that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties.
6.4 This survives the termination or expiry of this Agreement.
7. Confidentiality
7.1 Both parties agree not to use or disclose confidential information relating to, owned by, received from or disclosed by the other party, save for use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure will be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.
7.2 The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the owner of that information, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.
7.3 Any confidential information will be returned or destroyed by the receiving party at the prior written request of the owner.
7.4 We will be allowed to refer to you in any publicity after performance of the Services and during the Term.
7.5 If the parties execute a separate confidentiality agreement, the terms of that agreement will prevail.
7.6 This clause survives the termination or expiry of this Agreement.
8. Termination
8.1 We may terminate this Agreement (or at our discretion, the supply to you of the Services or the Deliverables) immediately if you fail to pay our invoices and such sum remains unpaid for fourteen (14) days after notice has been given to you that such sum has not been paid.
8.2 Either party may terminate this Agreement immediately on notice if:
the other is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or
the other party is bankrupt, in a voluntary arrangement, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.
8.3 On termination of this Agreement for whatever reason, we will be entitled to payment for all Charges properly incurred up to the date of termination and during any notice period.
9. Intellectual Property
9.1 You recognise and acknowledge that all Intellectual Property Rights created out of performance of this Agreement (excluding any Employee Data) immediately and automatically vest with us, and you will take all such steps as practicable to ensure that these Intellectual Property Rights will vest in and remain vested in us.
9.2 We grant you a non-exclusive, non-transferable, revocable license to use the Intellectual Property Rights owned by us that have been provided to you for the sole purpose of carrying out your business during the Term.
9.3 You grant us a licence to use any relevant Employee Data or any other Intellectual Property Rights that you own for the sole purpose of carrying out the Services.
9.4 You must not sub-license your rights under clause 9.2 without our prior written consent, which may be given or withheld in our sole discretion.
10. Non-Solicitation
10.1 You will not attempt to employ either directly or indirectly or as consultants any of our Consultants during the Term without our prior written consent. If you are in breach of this clause, we will be entitled to terminate this Agreement in accordance with clause 8.
11. Situations or Events Outside our Reasonable Control
11.1 There are certain situations or events that occur, which are not within our reasonable control. Where one of these occurs we will notify you of such and attempt to recommence performing the Services as soon as the situation, which has stopped us performing the Services, has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services.
12. Notices
12.1 Any notice required to be given pursuant to this Agreement will be in writing (including email) and will be sent to the other party at the address specified in this Agreement (or to such other address as either party may notify to the other party in writing in accordance with this clause).
12.2 A correctly addressed notice sent by post will be deemed to have been delivered 72 hours after posting, and correctly addressed emails will be deemed to have been delivered 24 hours after sending.
13. Dispute Resolutions
13.1 If a dispute arises in relation to this Agreement, a party (“Provider”) may give the other party (“Recipient”) a written notice adequately identifying the matters in dispute (“Dispute Notice”).
13.2 Within 10 days of the Provider giving a Dispute Notice, the parties must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Provider may give the Recipient written notice requiring the dispute to be referred to mediation (“Mediation Notice”).
13.3 If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.
13.4The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.
13.5 If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause, with the parties agreeing that the mediator will make a binding resolution.
13.6 No party may commence litigation unless they have first complied with this clause, except where the party is seeking urgent interlocutory relief.
13.7 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
13.8 This item survives the termination or expiry of this Agreement.
14. General
14.1 Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.
14.2 We may assign, sub-contract, or otherwise transfer any or all of our rights and/or obligations under this Agreement. You may only assign, subcontract, or otherwise transfer any or all of your rights and/or obligations under this Agreement with our prior written consent, which can be refused at our absolute discretion.
14.3 If either party chooses to waive or ignore a breach of this Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.
14.4 This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship, or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.
14.5 If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect.
14.6 This Agreement is governed by the laws of Victoria., Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
14.7 This Agreement may be executed in counterparts and all counterparts taken together will constitute one instrument.
14.8 This Agreement constitutes the entire agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement.