These Terms apply to services carried out by the Company and should be read in conjunction with the Proposal. Unless agreed in writing by the Company, these Terms will apply to the exclusion of any inconsistent terms and conditions which may appear on any order form or other document issued by the Client. In the case of inconsistencies between these Terms and our Proposal, the Proposal will take precedence. These Terms will apply to any variations to the scope of the Services which maybe agreed (verbally or in writing) by the Parties or ordered (verbally or in writing) by the Client and to any supplementary services which may be agreed (verbally or in writing) by the Parties.
The Client will be deemed to have accepted these Terms when the Client signs the Proposal (where indicated) or when the Company commences the Services at the request (written or otherwise) of the Client.
In these Terms:
“Claim” means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, demand, action, proceeding or judgement made against the person, however arising, whether in contract, tort (including but not limited to negligence), equity, product liability, under any warranty or indemnity, by operation of statute or otherwise, and whether present or future, fixed or unascertained and actual or contingent;
“Client” means the client to which the Company will provide the Services as set out in the Proposal;
“Company” means Assess Control Assure or the Assess Control Assure subsidiary providing the Services as set out in the Proposal;
“Confidential Information” means any information obtained by one party concerning the other party or its business activities and that:
a. by its nature is confidential;
b. is designated by the disclosing party as confidential; or
c. the recipient knows or ought to know is confidential; and
d. includes details of the Proposal, including the Fee, but excludes information that:
i. is publicly available, except as a result of a breach of these Terms; or
ii. was disclosed to the recipient by a third party who was not under a duty of confidentiality in relation to that disclosure;
“Consequential Loss” includes loss of profit, loss of revenue, loss of production, loss of use of any plant or facility, business interruption, loss of business opportunity or business contract (in each case whether direct or indirect) or any indirect, consequential, special, contingent or penal damage or loss;
“Fee” means the fee(s) payable by the Client to the Company for the Services as set out in the Proposal;
“Force Majeure Event” includes earthquake, flood, landslide, fire, explosion, war, invasion, act of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power, martial law or confiscation by order or any government or other authority, change in Law, strikes, lockouts, labour difficulties, rationing or unavailability of essential equipment, labour or supplies and disruption or unavailability of utilities and services which are beyond a party’s control.
“Assess Control Assure” means Assess Control Assure Pty Ltd (ACN 612 020 649);
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended, superseded or replaced from time to time;
“Intellectual Property” means all intellectual property rights including, without limitation:
a. patents, copyright, registered designs, rights in circuit layouts, trademarks, inventions, secret processes, discoveries and improvement and modifications of any kind;
b. the right to have Confidential Information kept confidential; and
c. any application or right to apply for registration of any of the rights defined in this clause;
“Law” includes all legislation, statutes, enactments, regulations, standards, by-laws, treaties, ordinances, equity and other such unwritten laws applicable to any act, omission, conduct, matter or thing for any reason;
“Parties” means the Company and the Client;
“Proposal” means the proposal to which these Terms are attached which sets out the Services and the Fee;
“Services” means the services to be provided by the Company as set out in the Proposal as varied in accordance with these Terms; and
“Tax Invoice” means the invoice issued by the Company in accordance with these Terms and has the respective meaning ascribed to it in the GST Act.
“in Writing” means in written form on a document bearing the authors letterhead or branding, including email but excluding SMS, social media and other electronic formats except where agreed by both parties in writing.
2. Parties to the Agreement
2.1. This agreement is made between The Company, ABN 76 612 554 926, the Client as detailed in the Proposal.
3. Appointment to Provide the Consulting Services
3.1. The appointment of The Company to provide consulting services shall be deemed an acceptance of these Terms of Engagement by both The Company and the Client.
3.2. The Company will provide the Services in a competent and professional manner and in accordance with these terms.
3.3. The Client agrees to provide the Company with accurate information and access facilities and documentation as required to deliver the Services in accordance with the Proposal, in a timely manner upon request by the Company.
3.4. Where the Company is engaged to provide the Services at the Client’s site(s), the Client agrees to provide a workplace which is free from risks to the health and safety of the Company’s employees or contractors, so far as is reasonability practical.
3.5. The Services are provided solely for the use of the Client and for the purpose set out in the Proposal. The Company accepts no liability or responsibility to any third party in connection with the Services. The Client agrees to indemnify us against any claims or liabilities arising through action brought by the third party against us for matters arising in connection with our services.
3.6. Except for damage resulting directly from fraud or intentional misconduct of The Company, The Company shall not be liable for any direct, incidental, special, consequential, exemplary or punitive damages (including loss of anticipated revenues, lost business opportunities or lost sales or profit).
3.7. The Company’s liability for all damages, costs and expenses, whether based in contract or in tort (including negligence), shall be limited to the amounts paid by the Client to The Company for the services.
3.8. The Company will provide a written report to the Client where included in the scope of the Proposal. The Client is entitled to rely only upon the complete and final report. The Client is not entitled to rely on any oral reports, expressions of opinion, warranties, promises, drafts or excerpts of the report.
3.9. The Client may request the Company to provide information in writing for its reliance which has been presented to the Client outside of a finalised and complete report.
3.10. During the Term, The Company will maintain adequate professional indemnity and public liability insurance. Certificates of insurance will be provided on request.
4. Changes, Termination and Disputes
4.1. Either party may request a change to the services. A change will not be effective unless we have both agreed to it in writing.
4.2. The Client and The Company may terminate this Agreement prior to the end of the Term by giving 30 days’ notice in writing to the other party.
4.3. An attempt must be made to resolve any disputes between the parties in relation to any matter connected with the provision of the services at a meeting between persons authorised to represent the respective parties.
5.1. The Client agrees that it will not, without prior written consent of The Company, employ or engage the services of The Company’s employees or agents during the Term, or during the twelve (12) months following termination of this Agreement.
6. Copyright and Confidential Information
6.1. All Client information and intellectual property and nominated materials developed specifically for and vested in the Client will only be used in the provision of the services to the Client. That information will be held confidentially by The Company and its subcontractors, unless otherwise authorised by the Client.
6.2. The Company retains intellectual property rights (including copyright) in respect of:
a. Software developed by or licensed to The Company and used in connection with the provision of the consulting services;
b. Standard materials or derivatives thereof;
c. The format and generic content of letters, reports and presentations; and
d. The Company’s generalised practices, techniques, methods, strategies, business processes and know-how.
6.3. The Company shall upon request, return to the Client all copies of any confidential information, belonging to the Client, in its possession.
6.4. The obligations in respect of intellectual property rights and confidentiality will continue after the termination of this Agreement.
6.5. All material remains the property of The Company. The Company retains the right to reproduce any contents with other organisations, but will not disclose Client specific material or data, including its confidential information. Nor will The Company disclose any content of the Client’s confidential information provided to us for the purpose of completing this assignment.
7. Remuneration and Payments
7.1. Payment terms are 14 days upon receipt of the invoice. Unless otherwise stated in the proposal, all fees are exclusive of travel, and subsistence costs, and any disbursements relating the to the services. All disbursements will be charged at cost.
7.2. The Company reserves the right to charge interest of 10% on payments not received within 21 days of invoice date.
7.3. Fees are exclusive of any taxes which may be applicable from time to time, such as GST.
7.4. The Company will provide a tax invoice clearly indicating the fee structure and the GST component.
7.5. Any fee for additional services is to be agreed between the parties prior to the provision of the additional services.
7.6. Should the Client decide to cancel or postpone any phase of work that has already commenced, we will invoice only for the time spent up to the date of cancellation and recharge at cost any costs The Company may have incurred in preparation, including any travel or accommodation costs incurred and which are not able to rescheduled.
8. Force Majeure
8.1. A party will not be liable for its inability to perform its obligations under these Terms as a result of a Force Majeure Event. If a Force Majeure Event occurs, the party suffering it will notify the other party of the occurrence and expected duration of that event. The party suffering the Force Majeure Event must use all reasonable endeavours to prevent the force majeure occurrence.
8.2. If a Force Majeure Event renders performance of these Terms impossible for a continuous period of at least thirty (30) days, either party may, by notice to the other, terminate these Terms.