TERMS OF BUSINESS
GENERAL TERMS OF BUSINESS
These General Terms of Business apply to the delivery of services by DisruptiveCo to a client pursuant to a letter enclosing these General Terms of Business and recording the engagement (“the Engagement Letter”).
The meanings of the following words and phrases which are widely used in these General Terms of Business shall be as set out below:
Services — the services to be delivered by us under the Engagement Letter.
Katy Cooper or we (or derivatives) — Hereto referred to as KC or the contracting party as identified by the Engagement Letter.
You (and derivatives) — the addressee (or addressees) of the Engagement Letter.
Services Contract — these General Terms of Business and the Engagement Letter, together with any documents or other terms applicable to the Services (“Additional Terms”) to which specific contractual reference is made in the Engagement Letter.
DisruptiveCo — Katy Cooper or DisruptiveCo the contracting party, each and all of our directors and employees, as the case may be.
These definitions shall apply wherever these words and phrases are used in the Services Contract.
OUR SERVICES & RESPONSIBILITIES
1. The Engagement Letter shall set out the Services to be delivered by us and associated matters. These General Terms of Business shall be subject to variation if required in the Engagement Letter.
2. The Services shall be delivered with reasonable skill and care.
3. We may acquire sensitive information concerning your business or affairs in the course of delivering the Services (“Confidential Information”). In relation to Confidential Information we shall comply with the confidentiality standards as set out in any Confidentiality Agreement we sign and we shall adhere to the confidentiality restrictions imposed on us by any other authority within Australia with whose requirements we are bound to comply, as well as any obligations imposed on us by Australian law. We shall be entitled to comply with any requirement of Australian law, of any authority in Australia with whose requirements we are bound to comply to disclose Confidential Information.
This clause shall not apply where Confidential Information properly enters the public domain. This clause shall not prohibit our disclosure of Confidential Information where we wish to disclose it to our professional indemnity insurers or advisers, in which event we may do so in confidence only.
For the purposes of marketing or publicising or selling our services we may wish to disclose that we have performed work (including the Services) for you, in which event we may identify you by your name and we may indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain.
4. We may supply written advice or confirm oral advice in writing as part of the Services. During the provision of the Services we may supply oral, draft or interim advice but in such circumstances our written advice shall take precedence. No reliance shall be placed by you on any draft or interim advice. Where you wish to rely on oral advice made during provision of the Services, you shall inform us and we shall supply documentary confirmation of the advice concerned.
5. Any product of the Services released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and information only and that, save as may be required by law or by a competent regulatory authority (in which case you shall, unless prohibited by law, inform us in advance), it shall not be copied, referred to or disclosed, in whole (save for your own internal purposes) or in part, without our prior written consent. The Services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the Services to your legal and other professional advisers for the purposes of your seeking advice in relation to the Services, provided that when doing so you inform them that
disclosure by them (save for their own internal purposes) is not permitted without our prior written consent, and
to the fullest extent permitted by law we accept no responsibility or liability to them in connection with the Services.
6. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the Services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
7. We shall retain ownership of the copyright and all other intellectual property rights in the product of the Services, whether oral or tangible, and ownership of our working papers. You shall acquire ownership of any product of the Services in its tangible form only after payment of our Charges for any such product. For the purposes of delivering services to you or other clients, we shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services.
8. We shall render invoices in respect of the Services comprising fees, outlays and GST thereon (where appropriate), plus any overseas taxes that might be payable thereon or deductible therefrom (“our Charges”). Details of our Charges and any special payment terms shall be set out in the Engagement Letter.
9. In return for the delivery of the Services by us, you shall pay our Charges (without any right of set-off), on presentation of our invoice or at such other time as may be specified in the Engagement Letter.
9.1 We may charge interest on any outstanding balances at the statutory rate from time to time in force (this rate applying after as well as before any court award or judgement in our favour in respect of outstanding balances).
9.2 If the Services Contract is terminated or suspended, you have no entitlement to a refund (be that in part or in full) on the Services or time period not rendered.
9.3 Where there is more than one addressee of the Engagement Letter, unless provision is made in the Engagement Letter for payment of our Charges by one of you or by a third party, all of you shall each be fully liable separately to pay our Charges as well as being so liable together as a group and we shall be entitled to call upon any of you and all of you for payment in full.
10. Notwithstanding our duties and responsibilities in relation to the Services, you shall retain responsibility and accountability for:
10.1 the management, conduct and operation of your business and your affairs
10.2 deciding on your use of, choosing to what extent you wish to rely on, or implementing advice or recommendations or other product of the Services supplied by us
10.3 making any decision affecting the Services, any product of the Services, your interests or your affairs
10.4 the delivery, achievement or realisation of any benefits directly or indirectly related to the Services which require implementation by you.
11. Where you require us or the nature of the Services is such that it is likely to be more efficient for us to perform work at your premises, you shall ensure that all arrangements are made for travel and accommodation as required at your cost.
12. To enable us to perform the Services, you shall supply promptly all information and assistance and all access to documentation in your possession, custody or under your control and to personnel under your control where required by us. You shall use your best endeavours to procure these supplies where not in your possession or custody or under your control. You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services.
13. We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorised by you to communicate with us for such purposes. We may communicate with you by electronic mail where any such person wishes us to do so, on the basis that in consenting to this method of communication you accept the inherent risks (including the security risks of interception of or unauthorised access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices), that to the extent permitted by law we may intercept such communications in order to monitor them for internal compliance or other statutory purposes, and that you shall perform virus checks.
THE SERVICE CONTRACT
14. This Service Contract sets out the entire agreement and understanding between us in connection with the Services and supersedes any prior agreements, understandings, arrangements, statements or representations (unless made fraudulently) relating to the Services. Any modifications or variations to the Service Contract must be in writing and signed by an authorised representative of each of us. In the event of any inconsistency between the Engagement Letter and any other elements of the Service Contract, the Engagement Letter shall prevail.
THIRD PARTY RIGHTS
15. The Service Contract shall not create or give rise to, nor shall it be intended to create or give rise to, any third party rights. No third party shall have any right to enforce or rely on any provision of the Service Contract which does or may confer any right or benefit on any third party, directly or indirectly, expressly or impliedly. The application of any legislation giving to or conferring on third parties contractual or other rights in connection with the Contract shall be excluded.
CIRCUMSTANCES BEYOND YOUR OR OUR CONTROL
16. Neither of us shall be in breach of our contractual obligations nor shall either of us incur any liability to the other if we or you are unable to comply with the Service Contract as a result of any cause beyond our or your reasonable control. In the event of any such occurrence affecting one of us, that one shall be obliged as soon as reasonably practicable to notify the other, who shall have the option of suspending or terminating the operation of the Service Contract on notice taking effect immediately on delivery.
WAIVER & ASSIGNMENT
17. Failure by any one of us to exercise or enforce any rights available to us shall not amount to a waiver of any rights available to either of us.
18. Neither of us shall have the right to assign the benefit (or transfer the burden) of the Service Contract to another party without the written consent of the other of us.
LIMITATIONS ON OUR LIABILITY
19. Our liability in connection with the Services shall be limited to the amount specified in the Engagement Letter.
20. Where there is more than one beneficiary of the Services (“Beneficiary”) the limitation on our liability agreed under clause 31 to each Beneficiary shall be apportioned by them amongst them. No Beneficiary shall dispute or challenge the validity, enforceability or operation of clause 31 on the ground that no such apportionment has been so agreed or on the ground that the agreed share of the limitation amount apportioned to any Beneficiary is unreasonably low. In this clause, “Beneficiary” shall include you and Other Beneficiaries.
21. If you breach any of your obligations under the Services Contract and there is any claim made or threatened against us by a third party, you shall compensate us and reimburse us for and protect us against any loss, damage, expense or liability incurred by us which results from or arises from or is connected with any such breach and any such claim. If any payment is made by you under this clause you shall not seek recovery of that payment from us at any time. In this clause “us” shall include all Persons and “you” shall include Other Beneficiaries.
22. Each of us can terminate the Services Contract or suspend its operation by giving 30 days’ prior notice in writing to the other at any time. Termination or suspension under this clause shall not affect any rights that may have accrued for either of us before termination or suspension and all outstanding sums due to us shall become payable in full when termination or suspension takes effect.
DATA PROTECTION AND PRIVACY
23. The definitions and interpretations in the Privacy Act 1998 (and any subsequent amendment or re-enactment that does not substantively change the original enactment) (“the Act”) shall apply to this clause.
NONDISCLOSURE AND CONFIDENTIALITY
24. Confidential and Proprietary Information. In the course of performing the Services, DisruptiveCo and its employees will be exposed to confidential and proprietary information of Client. “Confidential Information” shall mean any data or information that is sensitive material and not generally known to the public, which the Client considers confidential. DisruptiveCo acknowledges and agrees that the Confidential Information is valuable property of Client, developed over a long period of time at substantial expense and that it is worthy of protection.
In the course of performing the Services, the Client may also be exposed to confidential and proprietary information of DisruptiveCo. “Confidential Information” shall mean proprietary material not generally known to the public which DisruptiveCo considers confidential. The Client acknowledges and agrees that the Confidential Information is valuable property of DisruptiveCo, developed over a long period of time at substantial expense and that it is worthy of protection.
24.1 Confidentiality Obligations. Except as otherwise expressly permitted in this Agreement, DisruptiveCo shall not disclose or use in any manner, directly or indirectly, any Confidential Information either during the term of this Agreement or at any time thereafter, except as required to perform the Services or with Client’s prior written consent.
24.2 Rights in Confidential Information. All Confidential Information disclosed to DisruptiveCo by the Client is and shall remain the sole and exclusive property of Client.
Except as expressly provided herein, these terms do not confer any right, license, ownership or other interest in or title to the Confidential Information to DisruptiveCo.
25. Each clause or term of the Services Contract constitutes a separate and independent provision. If any of the provisions of the Services Contract are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
26. You agree to and accept the provisions of the Services Contract on your own behalf and as agent for Other Beneficiaries. You shall procure in such circumstances that any Other Beneficiaries shall act on the basis that they are a party to the Services Contract, as if they had each signed a copy of the Engagement Letter and agreed to be bound by it. However, you alone shall be responsible for payment of our Charges.
LAW & JURISDICTION
27. The Services Contract shall be subject to and governed by Australian law and all disputes arising from or under the Services Contract shall be subject to the exclusive jurisdiction of the Australian courts.