Terms of Business
1. Our Services
1.1 Scope – We will perform the services described in our engagement letter with reasonable skill and care.
1.2 Changes – Either of us may request a change to
the services, or anything else in this agreement.
A change will not be effective unless we have both agreed to it in writing.
1.3 Oral advice and draft deliverables – You may only rely on our final written deliverables. If you wish to rely on something we have told you, please let us know so that we can prepare a written deliverable on which you may rely.
1.4 Services for your benefit – Our services are provided solely for your use for the purpose set out in our engagement letter or the relevant deliverable. Except as stated in our engagement letter or the relevant deliverable, as required by law, or with our prior written consent, you may not:
a) show or provide a deliverable to any third party or include or refer to a deliverable or our name or logo in a public document
b) make any public statement about us or the services.
1.5 No liability to third parties – We accept no liability or responsibility to any third party in connection with our services. You agree to indemnify us against any liability (including legal costs) that we incur in connection with any claim by a third party arising from your breach of this agreement.
1.6 Term – The term of this agreement depends upon what is specified In the engagement letter, which will either specify that you are a “Casual Client” or a “Fixed Term Client”:-
a) If you are a Casual Client, you are acquiring our services on a month to month basis and the term is also month-to-month.
b) If you are a Fixed Term Client, the term is as indicated on the engagement letter. When that term expires and you have not agreed to enter into another fixed-term agreement for the service, you will become a Casual Client.
2. Your Responsibilities
2.1 Generally – You agree to:
a) provide us promptly with all information, instructions and access to third parties we reasonably require to perform the services
b) provide reasonable facilities for us when we work at your premises
c) ensure we are permitted to use any third party information or intellectual property rights you require us to use to perform the services.
2.2 Information – You agree to:
a) ensure that information provided to us is accurate, complete and not misleading (we will rely on this information to perform the services and will not verify it in any way, except to the extent we have expressly agreed to do so as part of the services)
b) alert us to changes to information provided to us
c) let us know if you expect us to use information from other engagements in connection with this one (otherwise, we are not required to use that information and will not be deemed to know it for the purposes of this agreement).
2.3 Interdependence – Our performance depends on you also performing your obligations under this agreement. You agree that we are not liable for any default that arises because you do not fulfil your obligations.
3. Fees, Expenses and Costs
3.1 Payment for services – You agree to pay us fees for our services on the basis set out in our engagement letter, plus any GST we are required to pay in connection with the services.
3.2 Expenses – You agree to pay any reasonable expenses we incur in connection with the services, plus GST at the prevailing rate (to the extent applicable).
3.3 Invoices and payment – We will invoice you for our fees and expenses on a monthly basis, unless we have agreed something different in our engagement letter. You agree to pay the invoiced amount within 14 days of the invoice date.
3.4 Fee scales – We revise our fee scale every six months. Rates quoted to you remain in force until the next 31 December or 30 June, as the case may be. We may increase our fee for any work performed after that date.
3.5 Compliance costs – If we are required to provide information regarding you or the services to comply with a statutory obligation, court order or other compulsory process, you agree to pay the reasonable costs and expenses we incur in doing so. This includes time spent by professional staff and our reasonable legal costs.
4. Confidentiality and Privacy
4.2 Referring to you and the services – We may wish to refer to you and the nature of the services we have performed for you when marketing our services. You agree that we may do so, provided we do not disclose your confidential information.
5.1 Liability cap–You agree that our liability for all claims connected directly or indirectly with the services (including claims of negligence) is limited to an amount equal to 5 times the fees payable for the services, up to an overall maximum of $20 million dollars.
5.2 Aggregate cap – Where more than one client is named in our engagement letter, the limits on our liability in this clause 5 are expressly apply “in the aggregate” and must be allocated between them. We do not need to know how a limit is allocated and, if it is not, you agree not to dispute a limit on our liability on the basis that you have not agreed how it is to be allocated.
5.3 Consequential loss – To the extent permitted by law, we exclude all liability for:
a) loss or corruption of data
b) loss of profit, goodwill, business opportunity or anticipated savings or benefits
c) indirect or consequential loss or damage.
5.4 No claims against employees – You agree not
to bring any claim (including in negligence) against any of our employees personally in connection with the services. This clause is for the benefit of our employees. You agree that each of our employees may rely on this clause 5.4 as if they were a party to this agreement. Each of our employees involved in providing the services relies on the protections this clause 5.4 and we accept the benefit of it on their behalf.
6. Electronic communications
7. Intellectual Property Rights
7.1 Pre-existing intellectual property rights
a) No rights of ownership to our intellectual property rights are transferred under this agreement, including any and all intellectual property rights in our proprietary tools, software or materials comprised in the systems known as “TAMS”, “SSU”, “DATR”, “VENDR” or “InfoView” or any other systems developed by us.
b) No rights of ownership to your intellectual property rights are transferred to us under this agreement (including any of your data which is used in connection with the services we provide to you).
7.2 New intellectual property rights – Any new intellectual property rights which are created in connection with this agreement or the services we provide, which build upon, improve or relate to the matters under clause 7.1(a) above, will upon creation vest in us, and if necessary be assigned to us. You agree to take any further steps (including executing documents) to give effect to this clause.
7.3 Electronic tools We may develop or use electronic tools (eg spreadsheets, databases, software) in providing the services. We are not obliged to share these tools with you, unless they are specified as a deliverable in this agreement. If they are not a specified deliverable, and we do share them with you, you agree that:
a) they remain our property
b) we developed them solely for our use
c) you use them at your own risk
d) you may not provide them to any third party.
8.1 Subcontractors – We may use subcontractors to provide the services to you. We remain liable for subcontracted services.
8.2 Transfer of information – Where subcontractors or related bodies corporate are involved in providing the services, you consent to information being transferred to them for the purpose of such services being provided to you. This includes personal information and transfer outside Australia.
9. Filing and destruction of documents
10. Performing services for others
Provided we do not disclose your confidential information, you agree that we may perform services for your competitors or other parties whose interests may conflict with yours.
11.1 By notice –
a) If you are a Casual Client, either of us may terminate this agreement by giving the other at least 30 days notice in writing.
b) If you are a Fixed Term Client, either of us may terminate this agreement on the expiry date of the relevant fixed term (as specified in the engagement letter) by giving the other at least 30 days notice in writing prior to that expiry date.
11.2 Termination for breach –
Either of us (Terminating Party) can terminate the agreement at any time if:
a) The other is in material breach of this agreement;
b) The Terminating Party provides the other with written notice of that breach; and
c) The other fails to remedy that breach with 14 days of it being notified.
11.3 Changes affecting independence – Changes to the law or other circumstances beyond our reasonable control may mean that providing the services to you results in us ceasing to be independent. If that happens, we may terminate this agreement immediately by giving you notice in writing.
11.4 Fees payable on termination – You agree to pay us for all services we perform before termination, within 14 days after receipt of our invoice. Where we agree a fixed fee for services, and the services are not completed before termination, you agree to pay us for the services that we have performed on the basis of the time spent at our then current hourly rates, up to the amount of the fixed fee.
11.5 Clauses applying after termination – The following clauses continue to apply after termination of this agreement: 1.3, 1.4, 1.5, 2.3, 3, 4, 5, 6.2, 7, 8, 9, 11, 12, 13, 14, 15, and 16.
12. Resolving disputes
14. Force majeure
Neither of us is liable to the other for delay or failure to fulfil obligations (other than an obligation to pay) to the extent that the delay or failure arises due to an unforseen event beyond their reasonable control which is not otherwise dealt with in this agreement. Each of us agrees to use reasonable endeavours to remove or overcome the effects of the relevant event without delay.
Neither of us may assign or deal with our rights under this agreement without the other’s prior written consent. Neither of us can unreasonably withhold our consent under this clause.
16. Applicable law
Unless our engagement letter states otherwise, the law applying to this agreement is the law of Queensland. Both of us submit to the exclusive jurisdiction of the courts of that state and waive any right either of us may have to claim that those courts do not have jurisdiction or are an inconvenient forum.