Terms of Business
Terms of Business
1. Application of Terms
1.1 These Terms, together with our Engagement Letter (if any), govern our provision of Services to you.
1.2 If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.
1.3 It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.4 Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order for services.
2. Incorporation into Engagement Letter
2.1 This clause 2 applies where you have agreed to the terms of our Engagement Letter (whether or not entry into the Engagement Letter occurs now or in future).
2.2 By engaging us to provide Services, you:
2.2(a) acknowledge these Terms are to be read together with every Engagement Letter that you enter into with us; and
2.2(b) agree to be bound by these Terms.
2.3 If there is any conflict or inconsistency between any of the documents which together govern our relationship with you, it is agreed the order of precedence will be (highest to lowest):
2.3(a) the terms of our Engagement Letter;
2.3(b) any terms governing your Credit Facility; and
2.3(c) our Terms of Business.
3. Engagement Letters
3.1 Each Engagement Letter that we issue:
3.1(a) contains fee estimates only;
3.1(b) is an offer to perform Services;
3.1(c) is exclusive of:
(i) GST, customs duty, and any similar tax or impost;
(ii) ASIC or ATO application, licencing or registration fees;
(iii) Approvals; and
(iv) deposit or trust fund terms;
3.1(d) remains valid for acceptance for a period of thirty (30) days from the date of Engagement Letter, unless withdrawn or varied by us at any time before a contract for services is formed; and
3.1(e) contains a price on the basis that all Services are performed during our usual business hours unless the Engagement Letter states otherwise.
3.2 Any verbal scope of work, quotation, costs or fee estimate provided orally is subject to written confirmation in our Engagement Letter.
3.3 An Engagement Letter may include additional terms or conditions, which will supplement these Terms.
3.4 Should you wish to have Services performed outside our usual business hours please let us know as additional charges may apply.
4. Formation of Contract
4.1 We are not obliged to provide Services until after a contract for services is formed.
4.2 A contract for services is formed, and you have accepted these Terms, when:
4.2(a) we provide you with our Engagement Letter; or alternatively
4.2(b) you submit a Supply Request to us; and
4.2(c) either:
(i) (where we have provided you with our Engagement Letter) you:
(A) accept our Engagement Letter (including by way of signature); or
(B) instruct us to commence performing the Services; or alternatively
(ii) (where you have submitted a Supply Request) we have:
(A) accepted your Supply Request in writing; or
(B) performed any Services.
5. Price
5.1 The price payable for the Services will be:
5.1(a) the price agreed in writing; or alternatively
5.1(b) the price by our prevailing price list or rates as when a contract for services is formed.
6. Price Variations
6.1 This clause 6 applies where a contract for services has formed pursuant to clause 4.2.
6.2 Unless otherwise agreed, where you request or direct that any Services be supplied that are not strictly in accordance with the Supply Agreement or Engagement Letter, then such Services shall constitute a price variation and clause 6.3 will apply.
6.3 You acknowledge and agree that:
6.3(a) all price variations under clause 6.2 must be agreed between the parties in writing prior to the Services being performed; and
6.3(b) all price variations shall be, at our discretion acting reasonably, invoiced at the rate(s) specified in the Engagement Letter, as specifically quoted, or in accordance with our current prevailing rates or price list.
6.4 Subject to clause 6.5, we reserve the right to vary our fixed fee price or rates if:
6.4(a) additional Services are required due to hidden or unforeseen problems discovered after commencement;
6.4(b) you request:
(i) Services outside usual business hours;
(ii) different Services to the Supply Request; or
(iii) delay provision of Services for sixty (60) days or more; or
6.4(c) otherwise as provided for in these Terms.
6.5 Where we vary a fixed fee or rates pursuant to clause 6.4, we will notify you. You may reject the new price within seven (7) days and terminate without penalty. Otherwise the new price applies.
7. Provision of Services
7.1 Subject to applicable laws or agreement in writing, we determine the method and performance of Services.
7.2 Prior to commencement, you must:
7.2(a) pay agreed deposits or trust funds;
7.2(b) obtain relevant Approvals;
7.2(c) provide required information and documentation; and
7.2(d) inform us of special requirements.
7.3 During the contract you must:
7.3(a) promptly provide requested information and access; and
7.3(b) notify us if any Client Material becomes inaccurate or misleading.
7.4 Time is not of the essence unless expressly stated.
7.5 Estimated completion dates are not contractual commitments.
7.6 We may extend time for delays beyond our control.
8. Access
8.1 When at our premises, you and your Personnel must:
8.1(a) protect people and property;
8.1(b) act safely and lawfully;
8.1(c) minimise environmental impact;
8.1(d) comply with our policies; and
8.1(e) comply with lawful directions.
9. Payment Terms
9.1 Unless you have a Credit Facility not in default:
9.1(a) deposits must be paid before commencement; and
9.1(b) payment must be made within seven (7) days of invoice.
9.2 Accepted payment methods include EFT and credit card.
9.3 We may charge a payment surcharge equal to our reasonable cost.
9.4 GST is payable upon issue of tax invoice.
9.5 Payment must be made without set-off or deduction.
10. Security Interest
10.1 You must not register any security interest over our Intellectual Property without prior written consent.
10.2 You waive rights under the PPS Act as specified in these Terms.
11. Client Material
11.1 You warrant Client Material:
11.1(a) is accurate and lawful; and
11.1(b) does not infringe third-party rights.
11.2 You grant us a non-exclusive, royalty-free licence to use Client Material for performing Services and marketing.
12. Intellectual Property Rights
12.1 All Intellectual Property in Working Documents remains our property unless agreed otherwise in writing.
12.2 Improvements vest in us immediately on creation.
12.3 You have no rights to use our Intellectual Property except as expressly set out.
13. Privacy
13.1 You must comply with all Privacy Laws.
13.2 You must not use or disclose Personal Information except as required for contractual performance.
13.3 You must notify us of any data breach.
13.4 Clauses 13.1–13.3 survive termination.
14. Data
14.1 Data remains our property.
14.2 You assign to us all Intellectual Property Rights in Data created in connection with the Services.
15. Confidentiality
15.1 You must keep Confidential Information confidential.
15.2 Disclosure is permitted only where required by law.
15.3 Clauses 15.1 and 15.2 survive termination.
16. Non-Disparagement
16.1 Neither party may make statements that would reasonably harm the reputation of the other party.
16.2 Each party must take reasonable steps to prevent its representatives from doing so.
17. Default
17.1 Clauses 17.2–17.5 apply if payment is overdue.
17.2 We may charge interest at 10% per annum.
17.3 We may suspend Services.
17.4 We may require pre-payment.
17.5 We may enforce our general lien.
18. General Lien
18.1 We have a general lien over documents and materials until payment is made in full.
18.2 This clause constitutes a security interest.
19. Indemnity
19.1 You indemnify us for loss arising from your breach.
19.2 Liability is reduced proportionally where we contributed to the loss.
19.3 This obligation survives termination.
20. Limitation of Liability
20.1 No party is liable for Consequential Loss.
20.2 We are not liable for delay in meeting estimated timeframes.
20.3 Where permitted by law, liability is limited to re-supply of Services or payment of equivalent cost.
21. Termination
21.1 A party may terminate immediately for material breach, insolvency, or failure to pay.
22. Agent Capacity
22.1 If acting as agent, you warrant authority and financial capacity.
23. Trustees
23.1 Trustees warrant authority and personal capacity when entering the contract.
24. Change of Control
24.1 Twenty-one (21) days’ written notice must be provided prior to a Change of Control.
25. Nature of Relationship
25.1 We act as an independent contractor.
26. Variation
26.1 We may amend these Terms in writing for future Supply Requests.
26.2 Any contract may be amended by written agreement.
27. Assignment
27.1 Assignment requires written consent.
27.2 We may assign if transferring our business as a going concern.
28. Severance
28.1 Invalid provisions will be severed without affecting remaining provisions.
29. Governing Law and Jurisdiction
29.1 These Terms are governed by the laws of New South Wales.
29.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
30. Definitions
30.1 In these Terms, defined terms include ASIC Act, Approval, Australian Consumer Law, Change of Control, Claim, Confidential Information, Consequential Loss, Consumer Contract, Credit Facility, Client Material, Data, Engagement Letter, Intellectual Property Rights, Supply Request, Personal Information, PPS Act, Privacy Laws, Services, Small Business Contract, Supplier, and Working Documents.
31. Interpretation
31.1 Schedules and annexures form part of these Terms.
31.2 References to currency are AUD.
31.3 Words such as “including” are without limitation.