TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES (LAST MODIFIED 1 JULY 2021)
THIS AGREEMENT is executed at the time and date that the Client either (a) clicks “I agree” or a button with equivalent meaning when purchasing Services offered for sale by the Supplier and advertised online at www.advisorycollective.com.au or (b) accepts a Proposal from the Supplier referring to these Terms of Business.
BUSINESS HEALTH ADVISORY COLLECTIVE PTY LIMITED
(“THE ADVISORY COLLECTIVE”)
ABN 66 650 927 861
Level 3, 44 Sydney Avenue
FORREST ACT 2603
and THE CLIENT purchasing the Services.
IT IS AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise:
“Agreement” means this agreement.
“Business Day” means any day other than a Saturday, Sunday or public holiday at the place where the activity in question occurred or is to occur.
“Background Intellectual Property” means Intellectual Property owned or controlled by a Party, including Intellectual Property developed prior to or independently of this Agreement, which that Party determines, in its sole discretion, to make available for the carrying out of the Services.
“Confidential Information” includes all unpatented inventions, ideas, know-how, concepts, trade secrets, processes, techniques, software, products and any and all other unregistered or unpatented intellectual property, financial and business information and all other commercially valuable information of the Disclosing Party which the Disclosing Party regards as confidential to it or which is evident by its nature to be confidential and all copies, notes and records and all related information generated by the Receiving Party based on or arising out of any such disclosure but not including information, which is, or becomes:
(a) available to the public at or after the date of its disclosure to the Receiving Party otherwise than through the default of the Receiving Party;
(b) properly in the possession of the Receiving Party otherwise than by prior confidential disclosure from the Disclosing Party;
(c) demonstrated by the Receiving Party to be independently developed by an employee or agent of the Receiving Party having no knowledge of such information which is the subject of the disclosure.
“Collective Consultant” means an independent contractor engaged by the Supplier that provides Services to a Client and includes contractors that may be described as Collective Members, Collective Associates or in some other way that identifies them by reference to the Advisory Collective.
“Deliverables” means (where applicable) Business Health Checks, Strategic Plans, reports and other materials embodying data, results, findings, recommendations and other information produced by the Supplier in relation to the Services.
“Disclosing Party” means the Party that is disclosing Confidential Information, and may include a Collective Consultant which makes applicable disclosures.
“Improvement” means any improvement, advancement, modification, adaptation or the like arising from a Party’s use of Background Intellectual Property
“Intellectual Property” means all rights resulting from intellectual activity whether capable of protection by statute, common law or in equity and including copyright, discoveries, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and plant varieties and all rights and interests of a like nature including but not limited to methods and techniques, together with any documentation relating to such rights and interests.
“Notice” means any notice, demand, consent or other communication whatsoever given or made under this Agreement and must be in writing by e-mail.
“Parties” means the parties to this Agreement and their respective successors and permitted assigns, and Party means any one of them. For the avoidance of doubt, Collective Consultants are not contractual, statutory, common law or equitable agents, partners or legal representatives of the Supplier and their actions or omissions will in no way bind the Supplier for the purposes of amending, enforcing or complying with this Agreement.
“Proposal” means a written proposal of Services to be delivered by the Supplier (or by a Collective Consultant contracted by the Supplier) to the Client which may be delivered in any form and may include prices described variously as fixed fees, quotes, estimates or any other terms that describe how the price charged by the Supplier to the Client will be calculated.
“Receiving Party” means the Party that is receiving Confidential Information, and may include a Collective Consultant that receives applicable disclosures.
“Start Date” means either (a) the date on which the Client purchased the Services when transacting with the Supplier online or (b) such other date as may be specified in a Proposal referring to these Terms of Business.
“Services” means either (a) the services offered by sale by the Supplier and advertised online at www.advisorycollective.com.au that were the subject of an online sale transaction initiated by the Client, including any subsequent services that are associated with that initial transaction, and / or (b) a Proposal submitted by the Supplier that refers to these Terms of Business.
“Term” means the term (if any) specified in the Services and ending no later than the final provision of the Services to the Client by the Supplier.
1.2 The following rules apply unless the context requires otherwise:
(a) the singular includes the plural and conversely;
(b) a gender includes all genders;
(c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) a reference to a person, corporation, trust, Sponsorship, unincorporated body or other entity includes any of them;
(e) a reference to a clause or schedule is a reference to a clause of, or a schedule to, this Agreement;
(f) a reference to A$, $A, dollar or $ is to Australian currency;
(g) a reference to time is to Australian Eastern Standard or Summer Time, as may apply at the relevant date in the state of New South Wales;
(h) a reference to an agreement or document is to the Agreement;
(i) a reference to legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(j) a reference to “GST”, “input tax credit”, “supply”, “tax invoice” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
(k) Headings are for convenience only and do not affect interpretation.
This Agreement will begin on the Start Date and will continue for the Term.
3.1 The Supplier and / or a Collective Consultant managed by the Supplier will perform the Services and provide the Deliverables on and / or by the date(s) (where specified) in relation to the Services.
3.2 The Services must be performed in accordance with the terms of this Agreement, subject to any specific variations that may be included in a Proposal submitted by the Supplier that have been accepted by the Client.
3.3 The Supplier is not required to supply the Services if it determines, in its sole discretion, that a Client is not acting in good faith when procuring or receiving the benefit of the Services. Example of a Client not acting in good faith include (but are not limited to) instances where a Client (or its associate) may be a past, present or future competitor of the Supplier and it wishes to inspect, copy, adapt, reverse engineer or otherwise benefit from the Supplier’s Intellectual Property for the development, marketing, advertising or delivery of its own services. The Supplier is not required to explain the reasons for a determination to a Client and it may terminate the supply of affected Services without notice. provided that it also refunds any payments made by the Client in advance of Services being provided within a reasonable period.
4.1 The Client shall make payments to the Supplier for the Services in accordance with either (a) the price advertised online for the Services by the Supplier at www.advisorycollective.com.au or (b) the price calculated in accordance with a Proposal submitted by the Supplier referring to these Terms of Business. Payments must be made before the delivery of the Services, unless otherwise proposed.
4.2 The Supplier may, at its sole discretion, advertise and supply Services from time to time without requiring monetary payment. Where such Services are provided and the Supplier receives non-monetary consideration, including (but not limited to) the ability to send promotional material to or make promotional contact with the Client in the future, these Terms of Business will apply in so far as they applicable.
5.1 When receiving Confidential Information, the Receiving Party must:
(a) keep all Confidential Information of the Disclosing Party confidential, unless strictly required otherwise by law;
(b) limit access to those of its personnel (including its contractors) reasonably requiring the Confidential Information on a strictly need to know basis;
(c) not use any Confidential Information in any way other than for the Services or as otherwise contemplated by this Agreement without the prior written permission of the Disclosing Party; and
(d) ensure that all personnel to whom Confidential Information is disclosed are legally bound under the terms and conditions of their employment or contracting agreements or otherwise, to keep the Confidential Information confidential and not to use the Confidential Information except in relation to the subject matter of this Agreement.
5.2 At the termination or expiration of this Agreement and upon the written request of the Disclosing Party, the Receiving Party must return to the Disclosing Party any documents originating from the Disclosing Party which embody Confidential Information and must not keep any copies in any form. The Disclosing Party may at its sole discretion vary this requirement in favour of the secure destruction of the documents by the Receiving Party.
6 INTELLECTUAL PROPERTY
6.1 Each Party:
(a) agrees that it will not have any claim, ownership or interest in or duplicate or reverse engineer the other Party’s Background Intellectual Property or Improvements in such Background Intellectual Property; and
(b) grants the other Party a non-exclusive, irrevocable and royalty-free licence for the use of any Background Intellectual Property made available by the granting Party for the purpose of carrying out the Services.
6.2 Subject to clause 6.1(a) the rights to all Deliverables, including the Intellectual Property created, discovered or coming into existence as a direct result of or arising out of the Deliverables shall be the property of and vested in the Client. The Client also grants a non-exclusive, irrevocable and royalty-free license to the Supplier to make use of the Intellectual Property arising out of the Deliverables for its current and future research and development purposes, subject to Confidentiality.
6.3 Where Services managed by the Supplier are provided to a Client by a Collective Consultant, the Supplier will contract with that Collective Consultant to ensure that these Intellectual Property rights and obligations will also apply to all dealings between that Collective Consultant and the Client.
7.1 The Supplier agrees that it will obtain the Client’s prior approval before submitting any manuscript or article relating exclusively to this Agreement for publication, which will not be unreasonably withheld.
7.2 The Client agrees that the Supplier may publish articles from time to time that makes reference to statistical data that has been derived in part from the Services, provided that such articles do not identify the Client in any way and are subject to Confidentiality.
8 RISK, LIABILITY AND DISCLAIMER OF RESPONSIBILITY
8.1 The Supplier warrants that it (or a Collective Consultant that provides Services managed by the Supplier to the Client) will perform the Services in accordance with those standards that may be mandated by regulators and/or recognised professional bodies with jurisdiction in the State of New South Wales, in so far as those standards are expressly relevant to the Services and specified in a Proposal. For the avoidance of doubt, the Supplier does not provide taxation, valuation, financial products, investment or legal advice that requires licensing by government or a professional body or regulator.
8.2 Except for the warranty in clause 8.1, the Supplier(or a Collective Consultant that provides Services managed by the Supplier to the Client) does not make any warranties regarding the Services or the Deliverables. All other warranties, including without limitation those of merchantability, fitness for a particular purpose, or that the use of the Deliverables or any other materials created pursuant to this Agreement will not infringe any intellectual property rights of a third party, are excluded.
8.3 The Client accepts that the Deliverables will be prepared by the Supplier (or a Collective Consultant that provides Services managed by the Supplier to the Client) based primarily on information provided by the Client. The Supplier (and any Collective Consultant that provides Services managed by the Supplier to the Client) disclaims responsibility for losses incurred because of factual errors or omissions in that information or because of any failures to successfully implement any advice or recommendations provided to the Client. The Deliverables should not be relied on for any purpose other than that advertised online or specified in a Proposal by the Supplier or by any persons other than the named Client, which uses the Deliverables at its own risk.
8.4 To the extent permitted by law, the Supplier (and any Collective Consultant that provides Services managed by the Supplier to the Client) has no liability under this Agreement other than as set out in this clause 8. Where liability cannot be excluded it is limited, at the Supplier’s option, to re-performing the Services or paying the Client the cost of having the Services re- performed. For the avoidance of doubt, the cost to the Supplier under this clause 8 shall not exceed the total payments already received to date by the Supplier under this Agreement.
8.5 For the avoidance of doubt, neither Party will be liable for indirect or consequential losses incurred by the other Party for whatever reason, and the Supplier disclaims all responsibility for whatever reason in relation to any dealings between the Supplier and a Collective Consultant that do not entirely relate to Services managed by the Supplier and / or where the Supplier is not a direct party to those dealings.
9 TERMINATION, POSTPONEMENT & CANCELLATION
9.1 This Agreement may be terminated at any time with the consent of both Parties, or by either Party where a Force Majeure event (including but not limited to acts of war, terrorism, civil unrest, outbreaks of disease, natural disasters, industrial action, loss of key staff or production equipment or supplies and actions of governments or regulators adversely affecting that Party’s operations) prevents that Party from fulfilling its obligations.
9.2 Either the Client or the Supplier may terminate this Agreement if the other Party is (a) in default of the terms and conditions of this Agreement and fails to remedy the default within twenty (20) Business Days after receiving Notice requiring the remedy of the default; or (b) becomes insolvent or subject to receivership, administration or other corporate reconstruction proceedings.
9.3 Termination of this Agreement for whatever cause shall be without prejudice to any rights or obligations that have accrued or were owed prior to such termination, including but not limited to payments of money.
9.4 The Supplier will not be required to refund any part of the payments already made by the Client in connection with the Services if the Client terminates the Agreement before the completion of the Services or, through its own acts or omissions, practically prevents the Supplier from providing the Services.
9.5 The Client and the Supplier may postpone or cancel meetings, workshops, calls, conferences, exchanges of information or other interactions required for the Supplier to provide the Services by prior e-mail notice. In such cases, the Client and the Supplier will work in good faith to reschedule those interactions to ensure that the Services can still be provided as agreed, and any payments already made or payable by the Client relating to those interactions will be applied by the Supplier to the rescheduled interactions. Where interactions are postponed or cancelled by the Client and cannot be practically rescheduled, the Supplier is entitled to charge the Client for that portion of the Services and retain any payments already made without having to provide the part of the Services that related to the affected interactions. The Supplier will charge the Client for any out of pocket travel and other costs incurred as a direct result of the Client’s postponement or cancellation of any interactions, to the extent that the Supplier is unable to recoup those costs.
10.1 For the purposes of this clause 10, the value of taxable supply made by either Party under this Agreement is as follows:
(a) unless expressly stated to the contrary, the consideration to be provided for any taxable supply made by one party to the other under this Agreement has been calculated without regard to, and is exclusive of GST;
(b) the consideration referred to in paragraph (a) shall be increased by the amount of any GST;
(c) the Party receiving any payment for a taxable supply under this Agreement shall provide to the Party making a payment for a taxable supply a tax invoice in respect of that payment; and
(d) the Party receiving any payment under this Agreement for a taxable supply shall do all things necessary that is within its reasonable control (including, without limitation, registering with any required Government authority) to enable the party making a payment for a taxable supply to claim any credits or other benefits under the relevant law relating to GST.
11 DISPUTE RESOLUTION
11.1 A Party claiming that a dispute has arisen under this Agreement (“Dispute”), including any Dispute relating to a Collective Consultant that provides Services to a Client managed by the Supplier, must notify the other Party giving written details of the Dispute. The Parties agree to negotiate in good faith on a commercially realistic basis to resolve the Dispute and will refer resolution of the Dispute to officers within each Party who are authorised at the time that the Dispute is notified to hear the Dispute before commencing any legal proceedings in relation to the Dispute.
11.2 The Parties may also agree during the negotiations provided for in clause 11.1 to refer the Dispute to conciliation, mediation, arbitration or other informal dispute resolution proceedings before either Party commences legal proceedings.
12.1 Entire Agreement: This Agreement constitutes the entire agreement of the Parties with respect to its subject matter and supersedes all prior oral or written representations and agreements, subject only to any specific variations included in an Advisory Services Proposal referring to these Terms of Business.
12.2 Amendment: This Agreement may only be amended in writing by the Parties.
12.3 Assignment: A Party may not assign its rights or obligations arising under this Agreement without the prior written consent of the other Party with the exception of assignments to controlled entities or entities that are commonly controlled (in which case the Parties will continue to guarantee the performance of any obligations that are not satisfied by an assignee). If an assignment is made in accordance with this clause it must be notified in writing to the other Party.
12.4 Waiver: A waiver by either Party of a breach of any provision of this Agreement does not constitute a waiver of any succeeding breach of the same or any other provision.
12.5 Severance: If any provision or part provision of this Agreement is invalid or unenforceable, such provision shall be deemed deleted but only to the extent necessary and the remaining provisions of this Agreement shall remain in full force and effect.
12.6 Relationship: The Parties are independent contracting parties, and nothing in this Agreement shall make any Party the agent, partner or legal representative of the other Party for any purpose whatsoever, nor does it grant either Party any authority to assume or create any obligation on behalf of or in the name of the other Party on any account whatsoever.
12.7 Governing Law: This Agreement is governed by the laws of the Australian Capital Territory, Australia. The Parties submit to the jurisdiction of the courts of that Territory and any courts which may hear appeals from those courts.
12.8 Notices: All Notices must be communicated by the Supplier to the Client using the e-mail address advised by the Client when purchasing the Services, and by the Client to the Supplier using the Contact details advertised at www.advisorycollective.com.au. Notices will only be communicated electronically. Notices will be determined to have been received at 6pm if sent electronically prior to that time on that Business Day.