Terms & Conditions
Your acceptance of the quotation for services provided by the Consultant, whether written or verbal, creates a contract between the Consultant and you. By acceptance of the quotation from the Consultant, you agree to be bound by these Terms and Conditions as well as any special conditions set out in the quotation.
DEFINITIONS AND INTERPRETATION
In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
Client means you;
Commencement Date means the date on which the Client accepts the quotation provided by the Consultant and instructs the Consultant to undertake the Consultancy Services;
Completion Date means the date by which the Consultancy Services are to be completed as agreed between the Consultant and the Client, or otherwise on the date on which the Consultant completes the Consultancy Services as set out in the quotation;
Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
Consultancy Services means the services to be performed by the Consultant in accordance with the quotation provided to the Client;
Consultant means C Squared Design Pty Ltd (ACN 57 979 357 182);
Consultant’s Personnel means any person(s) that the Consultant designates to perform the Services on the Consultant’s behalf;
Facilities means working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by the Consultant in order to perform the Consultancy Services;
Fee(s) means the amount or rates set out in the quotation provided by the Consultant to the Client;
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
Parties means the Consultant and the Client, and Party shall mean either one of them;
Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth);
Specification means the specific Consultancy Services to be provided by the Consultant under this Agreement as set out in the quotation;
Termination Date means the earlier of:
- the date of termination of this Agreement by the Client or the Consultant; and
- the date of expiry of this Agreement.
In this Agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
- reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
- any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
- any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
- the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
- The Consultant shall provide the Consultancy Services according to the Specification to the Client in consideration for the Client paying the Fee to the Consultant, subject to the provisions of this Agreement.
- The Consultant and the Client shall agree the time and place for the performance of the Consultancy Services subject to the availability of the Consultant’s staff and agents.
- The Consultant shall use reasonable endeavours to complete the Consultancy Services by the Completion Date.
- The Consultancy Services shall be performed by such employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services.
The Consultant shall provide the Consultancy Services in such places and locations as the Consultant considers appropriate to the type and nature of the requirements of the Client.
- In consideration of the provision of the Consultancy Services in accordance with this Agreement, the Client will pay the Consultant the Fee(s).
- Where the Consultant’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
- The Client acknowledges that the Fee(s) shall be exclusive of any GST that may be charged by the Consultant to the Client, and therefore, the Consultant will be entitled to add on GST.
- The Consultant shall provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4, and payment shall be made by the Client to the Consultant within 7 days following receipt of the Consultant’s invoice.
- The Consultant shall be entitled to vary the rates during the term of this Agreement. Before implementing any such new rates, the Consultant shall provide them to the Client.
- The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, photocopying, courier services, postage, etc.
- The Consultant is permitted to charge for costs incurred with third parties on behalf of the Client, such as printing and website development, in which case the Client shall make payment of a 50% deposit of such costs to be incurred on commencement of this Agreement.
- If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Consultant shall be entitled to do any of the following:
- charge interest on the outstanding amount at the rate of 10% per year, accruing daily;
- require the Client to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
- not perform any further Consultancy Services (or any part of the Consultancy Services).
- When making a payment the Client shall quote relevant reference numbers and the invoice number.
- The Client may, at any time, if it has reasonable grounds which have been disclosed and discussed with the Consultant, by notice in writing to the Consultant, require the Consultant to cease to permit a particular person or persons employed by the Consultant or acting as agents of the Consultant to carry out the Consultancy Services.
- If the Client makes the requirement referred to in paragraph 6.1, the Consultant must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of the Client’s business and provide the services of an alternative person or persons as may be reasonably acceptable to the Client.
During the performance of the Consultancy Services the Client will:
- co-operate with the Consultant as the Consultant reasonably requires;
- provide the information and documentation that the Consultant reasonably requires;
- make available to the Consultant such Facilities as the Consultant reasonably requires; and
- ensure that the Client’s staff and agents co-operate with and assist the Consultant.
- The Client will not charge for the Consultant’s use of the Facilities made available by the Client.
- If the Client does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Consultant will be paid by the Client.
NO PARTNERSHIP OR EMPLOYMENT RELATIONSHIP
Nothing in this Agreement constitutes the relationship of employer and employee between the Client and the Consultant or between the Client and the Consultant’s Personnel. It is the express intention of the parties that any such relationships are denied.
USE OF SUBCONTRACTORS
- The Consultant is permitted to use other persons to provide some or all of the Consultancy Services.
- The Consultant shall be responsible for the work of any of the Consultant’s subcontractors.
- Subject to paragraph 9.4, any work undertaken by any of the Consultant’s subcontractors shall be undertaken to the same standard as stated in this Agreement.
- To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this Agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
DISCLOSURE AND OWNERSHIP OF INTELLECTUAL PROPERTY
- Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
- The Client:
- acknowledges that copyright in the Specifications and Consultancy Services, or any part of the Specifications and Consultancy Services is and remains the property of the Consultant, and that the Specifications and Consultancy Services may only be used or dealt with by the Client as provided in this Agreement;
- acknowledges that the Consultant owns all Intellectual Property Rights in the Specifications and Consultancy Services, or any part of the Specifications and Consultancy Services;
- will not directly or indirectly do anything that would or might invalidate or put in dispute the Consultant’s title in the Intellectual Property;
- must comply with the Consultant’s reasonable usage guidelines and directions with respect to the Intellectual Property as notified to the Client from time to time;
- must ensure that the Specifications and Consultancy Services are not subjected to any treatment which is prejudicial to the honour or reputation of the Consultant, and do not infringe the moral rights of the author, or where the Consultant is a corporation, of the author of the Specifications and/or Consultancy Services
- In consideration of the payment of the Fee in accordance with clause 5, the Consultant grants to the Client a perpetual, non-exclusive, non-transferable, worldwide, royalty-free, limited licence in respect of the whole of the Specifications and/or Consultancy Services.
- In the event that the Client wishes to purchase the Intellectual Property Rights subsisting in, and associated with, the Specifications and/or Consultancy Services, namely the Consultant’s working files, then such purchase shall be by way of separate agreement.
- The Consultant must keep the Client’s, and any Related Body Corporate of the Client’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
- The Client and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this Agreement shall also be regarded as Confidential Information and the Consultant agrees that the Consultant’s obligations in paragraph 11.2 extend to this category of information.
- The Consultant’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
- the Client, in the case of Confidential Information pertaining to the Client’s business; and
- the Client’s client, in the case of Confidential Information pertaining to the business of any of the Client’s clients.
- At the Termination Date, or when earlier directed by the Client:
- all Confidential Information must be returned to the Client, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Consultant makes and any software that the Consultant creates based on the Confidential Information; and
- the Consultant will must erase and destroy any copies of any software containing or comprising the Confidential Information in the Consultant’s possession or under the Consultant’s control or that may have been loaded onto a computer possessed or controlled by the Consultant.
- The Confidential Information does not include information which:
- is generally available in the public domain otherwise than as a result of a breach of paragraph 11.1 by the Consultant; or
- was known by the Consultant prior to the Client disclosing the information to the Consultant.
- The Consultant agrees that the Client may require any of the Consultant’s Personnel to sign a confidentiality agreement in a form that the Client approves, as a condition of the Client’s acceptance of any of the Consultant’s Personnel.
- The obligations accepted by the Consultant under this clause 10 survive termination or expiry of this Agreement.
Warranties, liability and indemnities
- The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services to the standard generally accepted within the industry, sector or profession in which the Consultant operates for the type of Consultancy Services provided by the Consultant.
- If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this Agreement, then, if requested by the Client, the Consultant will re-perform the relevant part of the Consultancy Services, subject to paragraphs 12.8 and 12.9 below.
- The Client’s request referred to in paragraph 12.2 must be communicated to the Consultant prior to acceptance of the Consultancy Services and the sign-off by the Client of the works produced in accordance with the Consultancy Services.
- The Consultant shall effect all insurance required to be effected by law including worker’s compensation insurance as prescribed by law for the Consultant’s Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.
- The Consultant covenants that the Consultant shall be solely responsible for the payment to the Consultant’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Consultant’s employees or agents and to otherwise comply with legislation applicable to the Consultant’s employees and agents.
- Throughout the continuance of this Agreement the Consultant shall comply at the Consultant’s own cost and expense with all Acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority so far as the same may affect or apply to the Consultant or to the Consultancy Services, and the Consultant shall indemnify the Client from and against all actions, costs, charges, claims and demands in respect thereof.
- The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by the Completion Date or any other date, whether stated in this Agreement or the Specification or elsewhere.
- Except in the case of death or personal injury caused by the Consultant’s negligence, the liability of the Consultant under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the Client to the Consultant under this Agreement. The provisions of this paragraph 12.8 shall not apply to paragraphs 12.6 and 12.10.
- Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this paragraph 12.9 shall not apply to paragraphs 12.6 and 12.10.
- The Client shall indemnify and hold harmless the Consultant from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by the Consultant, its employees or consultants, or supplied to the Consultant by the Client within or without the scope of this Agreement.
- Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
- The Consultant warrants that the Consultant has no authority to engage the services of any person as an employee or agent of the Client.
- The obligations accepted by the Consultant and the Client under this clause 12 survive termination or expiry of this Agreement.
- Either Party may terminate this Agreement by notice in writing to the other if the Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 days notice of the breach being given in writing by the notifying Party to the other Party.
- Either Party may terminate this Agreement upon the happening of any of the following events:
- the giving of at least seven (7) days written notice by one Party to the other Party of the intention to terminate this Agreement;
- if the Client enters into a deed of arrangement or an order is made for it to be wound up;
- if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
- if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
- The Client may, at its discretion, pay to the Consultant the equivalent amount of the fees payable by the Client to the Consultant during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph 13.1.
- Upon termination of this Agreement any fees, expenses or reimbursements payable by the Client to the Consultant in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
- Subject to paragraph (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
- A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
- This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
- The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
- No failure or delay by the Consultant in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
Agency, partnership etc
- This Agreement shall 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 Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
- Subject to paragraph (b), no Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.
- No Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.
Law and jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.
Csquared Design Pty Ltd
ABN 56 113 226 207
ACN 113 226 207