Terms & Conditions
Services Agreement
This Services Agreement (Agreement) sets out the terms and conditions on which we will provide our services to you. This Agreement is made up of the below Contract Details and the attached Service Terms.
Special Conditions:
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You acknowledge and agree that:
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1 Provision of Services
Subject to you paying the Fees as required under this Agreement, we will provide the Services and Deliverables to you during the Term.
2 Term
This Agreement commences on the Commencement Date and continues until terminated in accordance with this Agreement or at law (Term).
3 Responsibilities
3.1 You must:
(a) cooperate with us in the provision of the Services and provide us with all information and assistance which we may require in order for us to be able to provide the Services;
(b) keep us regularly informed of all matters relevant to the Services;
(c) promptly respond to any questions which we may have in respect of the Services;
(d) act efficiently and honestly at all times in your dealings with us;
(e) provide any approvals or input related to the Services promptly following us requesting such approvals or inputs;
(f) provide us with all other assistance reasonably requested by us from time to time.
3.2 Where any instructions, materials or information in whatever form are required to be provided by you to us before we can proceed with or complete the supply of all or part of any Deliverable or provision of the Services:
(a) such instructions, materials or information must be supplied in writing by you to us within a reasonable time so as to enable us to deliver the Deliverable or Services;
(b) you agree that we are not responsible for, or required to, verify, update, or otherwise check such instructions, materials or information.
4 Our provision of the services
4.1 Assumptions and Exclusions:
- These services may include the use of professional coaching tools or platforms, and may incur an additional cost if agreed to.
- You are responsible for making your own notes and action list. Although you may be provided with supplementary detail if deemed relevant.
- Unless otherwise specified in the Service description, it is excluded.
(a) The key assumptions underpinning the scope of the Services and on which the Fees have been calculated are as set out at 4.1.
(b) You must notify us immediately if an Assumption is incorrect or becomes incorrect or if you believe that we have misunderstood any instructions, information or data provided by you.
(c) You acknowledge and agree that if an Assumption is or becomes incorrect the Fees may be increased to reflect the correct Assumption.
(d) You acknowledge that the scope of the Services does not include any matters outside of the explicit inclusions. If we provide any services or assistance outside of matters listed, this will be an Additional Service for which Additional Fees may apply.
(e) Nothing in this Agreement prevents us from providing services which are the same or similar to the Services to any other persons.
(f) We will use reasonable endeavours to provide the Services to you in accordance with any Timeframes, however, you agree that the Timeframes are an estimate only.
(g) You acknowledge and agree that:
(i) without limiting clause 13, the Services and the Deliverables are for your internal use only and must not be shared or distributed to any third party without our prior written consent;
(ii) any documents that we prepare for you are to be used solely for the specific purposes for which the document was prepared; and
(iii) we are not responsible for the use or implementation of the Deliverables or any other output of the Services.
(h) We will provide the Deliverables to you in such format as we reasonably consider appropriate from time to time.
(i) We may retain a copy of any Deliverables provided to you or destroy any Deliverables, in accordance with our document retention and destruction policies from time to time
5 Third Party Products or Services
5.1 In the course of performing the Services, we may recommend that you purchase, use or engage products or services provided by a third party (Third Party Product). Any decision by you to purchase any Third Party Products is made at your sole discretion and any cost and any agreement for the Third Party Products will be between you and the relevant third party, unless specified otherwise. We will not be responsible for the quality, suitability or provision of any such Third Party Products.
6 Additional Services
6.1 Subject to clause 1.1, the scope of the Services that we are required to provide under this Agreement will be limited to the specific services set out in the Service Details.
6.2 Where you request, and we agree, we may also provide Additional Services. Unless otherwise agreed by the parties in writing, any Additional Services will be provided on the terms and conditions of this Agreement, provided that the Additional Fees payable by you to us for such Additional Services will be the fees we notify you of (which notice we will provide promptly after you request those Additional Services and, where practicable before providing those Additional Services).
7 Fees and payment
7.1 You agree to pay the Fees to us for the Services. If we provide any Additional Services, you also agree to pay the Additional Fees for those Additional Services.
7.2 We may invoice you for the Fees and Additional Fees at the time set out at the checkout page, if no time is set out, fortnightly in arrears following provision of the relevant Services or Additional Services to which the Fees or Additional Fees relate (Invoice).
7.3 Subject to clause 7.4, unless otherwise agreed in writing between you and us the due date for payment by you to us of the Fees or Additional Fees (Due Date) is:
(a) the due date set out checkout page; or
(b) if no due date is set out at checkout, 14 days after the date of the invoice.
7.4 If:
(a) you have previously failed to make any payment to us by the due date for that payment (whether under this Agreement or otherwise); or
(b) your creditworthiness is, in our sole opinion, unsatisfactory,
we may require payment of all or some of the Fees or Additional Fees in full prior to us providing the relevant Services or Additional Services.
7.5 If you fail to make any payment by the Due Date, breach any term of this Agreement or are the subject of an Insolvency Event, then, without limiting our other rights, we may, elect to do any one or more of the following:
(a) suspend our provision of any or all Services or Deliverables (until such time as you pay the outstanding amount to us in full (together with any interest));
(b) terminate this Agreement by providing written notice of termination to you; and
(c) if you don’t make a payment by the Due Date, we may charge you interest on the unpaid amount at the interest rate which is fixed from time to time under rule 39.06 of the Federal Court Rules 2011 (Cth), which interest will accrue and be chargeable from the first day on which such amount becomes overdue until we receive payment of all such amounts (including all interest) by way of cleared funds.
8 GST and taxes
8.1 Subject to clause 8.2, unless otherwise expressly specified in this Agreement, all prices stated are stated exclusive of any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding (Tax) and you are solely responsible for the payment of all Taxes levied or payable in respect of the Services and must immediately upon request by us provide us with evidence of payment of any Taxes.
8.2 In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act. Unless otherwise expressly stated in writing in this Agreement, all amounts payable by you in connection with this Agreement do not include an amount for GST. If GST is payable on any supply made by us under this Agreement, you must pay to us, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where you are required by this Agreement to reimburse or indemnify us for any loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that we will be entitled to claim for the loss or amount incurred and increased by the amount of any GST payable by us in respect of the reimbursement or payment.
9 Intellectual Property
9.1 You acknowledge and agree that:
(a) any Developed IP will be owned by us from the date it is created, generated, developed, written or brought into existence; and
(b) you will not have any ownership of the Developed IP or other right, title or interest in the Developed IP other than as provided in this Agreement.
9.2 You hereby assign, and will ensure that any of your personnel promptly assigns, to us all right, title and interest in all Intellectual Property in any Developed IP that you or any of your may have or acquire.
9.3 You must execute such further documents and take all steps necessary, and must procure that any of your personnel executes such documents and takes such steps necessary, to give effect to the assignments contemplated in clause 9.2.
9.4 We grant to you a nonexclusive, personal right to use the Developed IP and any Pre-Existing IP that is included or incorporated in Developed IP or any Deliverable delivered to you by us, in each case solely for the purpose of you receiving and using the Services and Deliverables for your personal purposes and internal business purposes.
9.5 We are entitled, on reasonable notice to you, to require you to cease using all or any part of the Developed IP or Pre-Existing IP where the continued use of that Developed IP or Pre Existing IP by you would put us in breach of our obligations under any agreement with any third party or result in us or you infringing any third party Intellectual Property.
9.6 You:
(a) grant to us a non-exclusive, royalty free licence to use, reproduce, modify, adapt and further develop all Intellectual Property in the Provided Materials for the purpose of us providing the Services and Deliverables; and
(b) warrant that the Provided Materials will not breach the Intellectual Property or other rights of any third party.
10 Provided Information
10.1 We acknowledge and agree that you own all Intellectual Property in the Provided Information and unless expressed otherwise in this Agreement, nothing in this Agreement grants us any ownership of the Intellectual Property in the Provided Information.
10.2 In addition to the rights granted under clause 11, you grant us a non-exclusive and royalty free right and licence to use, reproduce and otherwise exploit the Provided Information during the Term for the purposes of providing the Services and Deliverables to you or as required for us to perform our obligations under this Agreement or as required by applicable law.
11 Use of de-identified Provided Information
You acknowledge and agree that we may use, reproduce and otherwise exploit Provided Information for any of our business, operational or commercial purposes, including us providing services to our other clients, provided always that the Provided Information must de-identified by us such that the Provided Information does not identify you or any of your employees. You grant us a non-exclusive, perpetual, irrevocable and royalty free right and licence to use, reproduce and otherwise exploit the Provided Information (or any part of it) in de-identified form both during and after the Term for the purposes outlined in this clause 11.
12 Subcontracting
12.1 We may subcontract any of our obligations under this Agreement, however we remain responsible to you for the provision of the Services notwithstanding any such subcontracting.
13 Confidentiality
13.1 The Receiving Party must:
(a) maintain the confidential nature of the Confidential Information; and
(b) only disclose Confidential Information:
(i) to an Authorised Person where the Authorised Person has a need to know and after the Receiving Party has made the Authorised Person fully aware of the confidential nature of the Confidential Information;
(ii) with the prior written consent of the Disclosing Party; or
(iii) as required by law, provided that the Receiving Party must give the Disclosing Party reasonable prior notice of the proposed disclosure.
13.2 The Receiving Party must:
(a) take all reasonable proper and effective precautions to maintain the confidential nature of the Confidential Information; and
(b) immediately notify the Disclosing Party of any potential, suspected or actual unauthorised access, disclosure, copying or use or breach of this clause 13.
13.3 If requested to do so by the Disclosing Party, the Receiving Party must immediately cease all use of the Confidential Information and must, at its own expense return to the Disclosing Party or destroy, as the Disclosing Party directs, all documentation containing Confidential Information, whether prepared by the Receiving Party or for the Receiving Party as is in the possession, power or control of the Receiving Party or the Receiving Party’s Authorised Persons.
13.4 Return or destruction of documentation containing Confidential Information does not release the Receiving Party from its obligations of confidence under this clause 13.
13.5 Notwithstanding this clause 13, you agree that we may publicise that you are a client of ours and that we have provided services to you.
13.6 Nothing in this clause 13 applies to or limits our rights to use de-identified Provided Information as contemplated in clause 11.
14 Liability
14.1 If you are a consumer (as defined in section 3 of the Australian Consumer Law) (Consumer) and we supply PDH Goods or Services to you, we acknowledge that you may have certain rights under the Australian Consumer Law in respect of the guarantees provided under Division 1 of Part 3 2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by us and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of those rights.
14.2 If you are a Consumer and any goods or services supplied by us to you are non PDH Goods or Services, our liability to you in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at our discretion) to:
(a) in the case of goods: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and
(b) in the case of services: (i) the supplying the services again; or (ii) the payment of the cost of having the services supplied again.
14.3 Subject to clause 14.4, if you make a claim against us which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law our aggregate liability to you in respect of all such claims will not exceed 3x the Fees received by us from you under this Agreement.
14.4 Subject to clauses 14.1 and 14.2, we will not be liable to you for any Consequential Loss that may be suffered or incurred by you arising out of or in connection with this Agreement.
15 Termination or suspension
15.1 This Agreement will terminate on the completion of the Services.
15.2 Without limiting its other rights under this Agreement, either party may terminate this Agreement with immediate effect by written notice to the other party if:
(a) the other party is the subject of an Insolvency Event;
(b) the other party has breached any material term of this Agreement which is not capable of remedy; or
(c) the other party has breached any term of this Agreement which is capable of remedy and has not remedied the breach within 14 days or receiving notice requiring the breach to be remedied.
15.3 On termination of this Agreement:
(a) we shall be entitled to all Fees and Additional Fees in respect of any Services or Additional Services provided up to the date of termination;
(b) all monies owed by you to us shall become immediately due and payable (including any monies owed under clause 15.2(a)); and
(c) each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
16 Indemnity
You indemnify us and hold us harmless from and against all losses (including all legal costs, and any other associated fees and costs) for which we incur as a direct or indirect result of:
(a) recovering any amounts you owe to us (including any fees paid to a debt collector, mercantile agent or similar);
(b) any breach of this Agreement by you; or
(c) any negligent or wilful act or omission by you, your employees, agents, servants, contractors or others for whom you are legally responsible.
17 Force Majeure
If a party is prevented, hindered or delayed from performing its obligations under this Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end. If the delay or failure to perform continues for more than 30 days, either party may terminate this Agreement by providing written notice of termination to the other party. This clause 17 does not relieve or suspend a party’s obligation to pay money to the other party.
18 Special Conditions
18.1 The parties agree that the terms set out in the Contract Details (if any) (Special Conditions) form part of this Agreement.
18.2 If there is an inconsistency between any Special Condition and any other term of this Agreement, the Special Condition will prevail to the extent of the inconsistency.
19 General provisions
19.1 In this Agreement:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(e) headings are inserted for convenience and do not affect the interpretation of this Agreement;
(f) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement; and
(g) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
19.2 You must not assign or otherwise deal with any of your rights or obligations under this Agreement without our prior written consent. Without limiting any other provision of this Agreement, we may, to the extent permitted by law, assign, or deal with any of our rights or obligations under this Agreement (including any right to be paid or chose in action) at any time in circumstances where, in our opinion acting reasonably, the assignment will not adversely affect your rights.
19.3 This Agreement may only be amended or varied by a document in writing signed by each party.
19.4 A failure to exercise or delay in exercising any right under this Agreement does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under this Agreement must be in writing and is only effective to the extent set out in that written waiver.
19.5 If any provision of this Agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions.
19.6 This Agreement is governed by the laws in force in Queensland, and you and us submit to the non-exclusive jurisdiction of the courts of Queensland.
19.7 The termination or expiry of this Agreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 1, 5.1, 7.5, 1, 8, 9, 10, 13, 14, 15.3, 16, 17 and 19.
19.8 Each party must:
(a) do all acts necessary or desirable to give full effect to this Agreement; and
(b) refrain from doing anything which might prevent full effect being given to this Agreement.
19.9 The relationship between the parties is and will remain that of independent contractors, and nothing in this Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
19.10 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party specified at checkout or as otherwise notified by the relevant party to the other party.
19.11 The parties consent to this Agreement being signed by or on behalf of a party by Electronic Signature.
19.12 This Agreement may be signed (including electronically) in any number of counterparts which together will constitute one document. Each party consents to the exchange of counterparts of this Agreement by delivery by email to the party or its legal representative or other electronic means of exchange as the parties may agree.
20 Definitions
In these service terms (Terms), unless the context otherwise requires, the words below have the following meanings:
Additional Services means any services which we agree to provide to you in accordance with clause 6 from time to time.
Additional Fees means fees and charges payable by you to us for any Additional Services.
Agreement means these Terms and the details at the Check-out page.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Authorised Person means in relation to a party:
(a) the directors, secretary and any other person appointed to act as an authorised officer of that party;
(b) the employees of that party;
(c) the legal, financial and other advisers of that party; and
(d) the respective officers and employees of those legal, financial and other advisers.
Commencement Date means the date the Service was purchased.
Confidential Information means all information designated as confidential by the Disclosing Party or which by its nature is confidential and which is disclosed to or acquired by the Receiving Party or the Receiving Party’s Authorised Persons before or after the date of this Agreement, whether orally, in writing or in electronic or machine readable form but does not include information that:
(a) the Receiving Party can prove by contemporaneous written documentation was in the lawful possession of the Receiving Party before the Disclosing Party had any dealings with the Receiving Party or was independently generated by the Receiving Party or on its behalf;
(b) is in the public domain otherwise than as a result of a breach of clause 13 of this Agreement or any other obligation of confidentiality owed to the Disclosing Party; or
(c) was legally and properly obtained by the Receiving Party from any other source without restriction on further disclosure.
Consequential Loss means:
(a) any form of indirect, special or consequential loss;
(b) any loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(c) any loss beyond the normal measure of damages.
Deliverables means any document, report or other item delivered or required to be delivered to you by us under this Agreement as part of the Services.
Developed IP means any Intellectual Property which is created, generated, developed, written or brought into existence by or on behalf of us in providing the Services or meeting our other obligations under this Agreement but does not include any Intellectual Property in any Pre-Existing Materials.
Disclosing Party means a party who discloses its Confidential Information to the Receiving Party.
Electronic Signature means a digital signature or other visual representation of a person’s handwritten signature or mark placed or typed on a copy of this Agreement by electronic or mechanical means (including by using DocuSign or other electronic signing platform agreed between the parties) and electronically signed has a corresponding meaning.
Fees means the fees and charges for the provision of the Services as set out at checkout.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those ort like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Pre-Existing IP means the Intellectual Property in all things, materials, documents, information and items developed by us independently of this Agreement.
Provided Information means the information and data provided by or on behalf of you to us for or in connection with the provision of the Services.
Provided Materials means all material, documents and information provided by or on behalf of you to us for the purposes of this Agreement and includes the Provided Information.
Receiving Party means a party who receives the Confidential Information from or on behalf of the Disclosing Party.
Services means:
(a) the services as set out at checkout; and
(b) any Additional Services,
but does not include anything set out in 4.1 of these terms.
Term has the meaning given to it in clause 1.
Timeframes means any timeframes for the provision of the Services set out in this Agreement or otherwise notified to you by us from time to time.
