Engagement Terms
TERMS AND CONDITIONS OF SERVICE
DEFINITONS
In this agreement the following terms have the corresponding meanings unless repugnant to the context:
You (and your) means the recipient organisation of the Engagement Letter;
Us (and our and we) means Intellix Pty Ltd ACN 600 186 169;
Services means the work performed pursuant to the Scope of Services in the Engagement Letter along with any additional services provided that are not included in the Scope of Services.
AGREEMENT
(1) These Terms and Conditions of Service and the accompanying Engagement Letter along with any appendices (together the ‘Agreement’) must be read together as they form your agreement with us.
(2) This Agreement contains the entire agreement between the Parties and supersedes all previous proposals, negotiations or agreements in relation to the Services. No terms are to be implied into this contract other than those implied under statute.
(3) To the extent that there is any inconsistency between a previously provided proposal and this Agreement (as modified by the parties in accordance with this Agreement from time to time), the terms of this Agreement shall take precedence; and to the extent of any inconsistency, the terms of the Engagement Letter shall take precedence over these Terms and Conditions of Service.
(4) These Terms and Conditions of Service Agreement apply to:
a. the Services provided under this engagement (for clarity this includes any additional services provided); and
b. all Services performed at any time (including before the date of this Agreement and all future work we perform for you and future engagements that are not otherwise covered by earlier or later engagement terms).
(5) Upon your acceptance of this Agreement pursuant to clause (6), this Agreement will continue until we deliver all of the deliverables contemplated in the Scope of Services, or until terminated earlier in accordance with these Terms and Conditions of Service.
(6) This engagement including the Engagement Letter and may be accepted by signing and returning a copy of this Engagement Letter and Terms and Conditions of Service; however the following will also constitute acceptance for the purpose of this Agreement:
a. by you confirming our engagement via phone or email;
b. by you providing (or by you directing another party to provide) documentation to us or consulting with us;
c. by you advising us to commence work for you;
d. by not advising us to discontinue work which you know we are undertaking on your behalf; or
e. by paying any invoice rendered pursuant to the engagement.
OUR COMMITMENT
(7) Our work will be based on your initial instructions and instructions given by you from time to time during the engagement.
(8) Our work will be reliant on the accuracy, completeness and timeliness of information you provide to us. We will rely on the information you make available to us and unless we expressly agree otherwise we will have no responsibility to evaluate or verify it.
(9) We will perform our work with due care and diligence.
(10) We will advise you if we become aware of any conflict of interest.
(11) Subject to the law, we will not disclose any information relating to your affairs to a third party without your consent, however you acknowledge that we may cite the performance of the services for you to our clients and prospective clients as an indication of our experience.
(12) We will act in your best interests, but we must and will comply with the law even when that may be contrary to your interests.
YOUR COMMITMENT
(13) You agree to pay for the services we provide in accordance with the payment terms set out in this Agreement.
(14) You are responsible for all management decisions relating to Intellix’s services, the use or implementation of the output of the services, and for determining whether the services are appropriate for your purposes.
(15) You agree to disclose all information relevant to the work being undertaken in a timely manner and with reasonable care, and acknowledge that we will not verify this information or material unless you request or advise us to do so as part of our services.
(16) You agree to disclose to us any information pertaining to anything that arises subsequently, including advising us of any change to your business or circumstances, which is relevant to the Services.
(17) You must be contactable, or arrange for a representative to be contactable by us, provide us with access to your management and staff as necessary during business hours for the performance of our services to you.
(18) You agree that any documentation provided to you by us is for you internal purposes only, is confidential and may not be shared with, disclosed to, or relied on by a third party without our prior consent in writing.
(19) You must not instruct us to conduct any investigation, analysis or activity that is contrary to law or for an illegal purpose.
(20) It is your responsibility to keep proper records of all financial, accounting, taxation and business related matters.
(21) If you believe there is any material or information relevant to any decision you wish to take that has not been provided by us and is within the scope of this engagement, you must advise us without delay, and in any event with 7 days, and give us the opportunity to rectify any such advice or opinion. If you fail to do so we disclaim all responsibility for our advice or opinion failing to conform to the scope of work set out in the Engagement Letter.
ADVICE
(22) During the supply of our services we may provide oral, draft, or interim commercial advice, reports or presentations to you. You must not rely on any oral, draft or interim advice or on any draft report or draft document. Where you wish to rely on any oral, draft or interim advice you must inform us and we may provide you with the documentary confirmation of the advice.
(23) Commercial advice provided to you will be our opinion based on your particular circumstances at the date the service is being provided, and if you intend to rely on our advice at a later time it is your responsibility to seek updated advice.
(24) We shall not be under any obligation, regardless of the circumstances, to update any advice or report, oral or written, for events occurring after the advice or report has been issued in final form.
(25) No actions taken by us and/or statements made in the course of our engagement shall be taken as a promise or guarantee to you about the outcome of any matter.
(26) Our services do not include anything that is not expressly included in these Terms and Conditions of Service or the accompanying Engagement Letter, and further our services expressly exclude:
a. legal advice or tax advice or financial services or investment advice;
b. participation in the management or decision making process of your business or any part of your business;
c. detection of fraud or detection of other illegal acts and errors;
d. opinions relating to valuations; and
e. verification of any facts or circumstances.
(27) No advice we provide to you is intended to constitute legal advice, tax advice, or financial services or investment advice, nor constitute participation in the management or decision making process of your business, and it should not be relied upon by you as such.
HEALTH & SAFETY
(28) In the event that Intellix staff are required to visit your premises, it is on the basis that you comply with all occupational health and safety standards, and during such times you will be responsible for providing a safe place of work and ensuring our staff are appropriately instructed to ensure their personal safety.
FEES
(29) Our Charge Out Rates may vary from time to time, and where these vary materially from the charge out rates included in the Engagement Letter we will advise you in writing.
(30) Any work we perform will be charged on a ‘time spent’ basis, although we may provide you with an estimate of fees prior to any significant tasks being performed, or on occasion we may provide you with a quote for a fixed maximum sum.
(31) If an estimate of costs is given by us at a particular time it is not a quote for a fixed maximum sum unless it is specified as a fixed maximum sum on the quote or estimate provided, and costs actually invoiced may be lower or higher than the amount estimated for the engagement.
(32) Additional services are those that have not been described in the Engagement Letter, which if provided will be billed separately in accordance with our Charge Out Rates as varied from time to time.
(33) Our Fees include all expenses associated with the provision of our services and you agree that:
a. upon an invoice being rendered in relation to same, you will reimburse us for expenses we incur on your behalf or as expressly agreed by you from time to time; and
b. that we may incur any incidental or third party expenses up to a value of $200 ex GST without specific approval from you.
(34) Intellix shall periodically render a tax invoice which may (at our election) be sent to you by post, email or by making it available on our website for you to download.
(35) Upon termination all fees incurred up to and including the day of termination that have not been previously billed shall be invoiced and shall be immediately due and payable.
(36) You hereby charge, in our favour, all your assets, real and personal property, rights and undertakings, whether acquired before or after the commencement of the engagement work, as security for payment of our fees and costs.
(37) Our fees are quoted exclusive of GST or other applicable taxes and levies unless expressly stated otherwise.
(38) To the extent that we consider that the supply we make is subject to GST, then GST will be charged at the prevailing rate and is payable in addition to the fees invoiced.
TERMS OF PAYMENT
(39) Where the core deliverable of this engagement is a report, our fees are due and payable upon delivery of the draft report, and our terms for payment for all other services are Due Upon Receipt of our invoice, unless otherwise stated on the invoice.
(40) Payment is not contingent on the outcome of the matter.
(41) Where instructions during the course of our engagement are received from persons or entities other than those to whom this proposal is addressed, we may recover payment of our fee invoices from any persons or entities from whom instructions are received on the basis that such instructing persons or entities are jointly and severally liable for the payment of our fees.
(42) If you fail to pay any invoice by the due date, then without prejudice to our other rights or remedies, until we have been paid in full for the outstanding amount (including any accrued interest), we reserve the right to
a. charge you interest on the overdue amount at an annual rate of 15%, accruing daily and compounding weekly from the due date of the relevant invoice;
b. immediately suspend any or all services; and
c. hold a lien over, and to retain all equipment, materials, data and work in progress belonging to you.
(43) If you reasonably believe that an invoice contains an error, and you wish to dispute an invoice, you must:
a. notify us before the due date of the invoice;
b. pay all undisputed fees on the invoice; and
c. provide us with detailed information about any disputed fees.
(44) Our records are prima facie evidence in relation to calculating fees.
INTELLECTUAL PROPERTY
(45) All documents, reports, models, data, designs and other creations (‘Materials’) created and/or produced by us in the course of our engagement are the property of Intellix, and Intellix retains all intellectual property rights in Materials created by it, but not any client information reflected in them. Any correspondence or documents we provide to you during the course of the engagement belong to you unless we specify otherwise.
(46) All Materials produced by you the client and any client content are the property of you the client, and you retain all intellectual property rights in your Materials.
(47) Where you provide us with content or Materials, or ask us to make changes to any content or Materials, you warrant that
a. you own the Materials or have the authority to make the request; and
b. your instructions will not cause us to infringe the organisation’s or any third party intellectual property rights.
(48) Upon payment for Intellix services, you may use the Materials as permitted by this agreement, however any draft document issued to you for review is not final and may not be relied on by you, or any other party.
(49) Any report issued pursuant to this Agreement is for your use only, and no third party may rely on anything contained in a report from Intellix without our prior written permission.
INDEMNITY AND LIMITATION OF LIABILITY
(50) Each party shall indemnify, defend and hold harmless the other party and its directors, officers, employees agents, and sub-contractors against any and all losses, costs, expenses and damages, including but not limited to reasonable legal fees, resulting from its own negligence or malpractice, or reckless or intentional misconduct, or failure to perform its obligations and responsibilities under this Agreement.
(51) You agree to indemnify and release Intellix and its directors, officers, employees, agents and sub-contractors from any and all claims arising from any misstatement or omission in any material, information or representation supplied or approved by you.
(52) To the fullest extent permitted by applicable law you agree to indemnify Intellix and its directors, officers, employees, agents and sub-contractors from any and all claims by third parties (including your affiliates) incurred by us which is related to, arises out of, or is in any way associated with the disclosure of, or any third parties use or reliance on, information or documents prepared by Intellix, except to the extent that we have specifically authorised in writing the third parties reliance on such information or documentation.
(53) Subject to clauses (56), (57) and (58), any liability of Intellix for any loss or damage, however caused (including, without limitation, by the negligence of Intellix), suffered by you in connection with this Agreement is limited to the amount of the fees that Intellix has actually received from you during the twelve month period immediately preceding the event that gave rise to the claim.
(54) The limitation set out in clause (53) is an aggregate limit for all claims, whenever made.
(55) For clarity, and without limiting clause (53), the parties agree that clause (53) is to apply in connection with a breach of this Agreement, anticipated breach of this Agreement or other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
(56) Subject to clauses (57) and (58), Intellix will not be liable (including without limitation by the negligence of Intellix or any of its officers) for any loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, suffered or incurred by you in connection with this Agreement.
(57) Except as contemplated by clause (58), nothing in this agreement is intended to limit any of your rights under the Competition and Consumer Act 2010 (Cth).
(58) If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by us in connection with this Agreement, and Intellix’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses (53), (55) and (56) do not apply to that liability and instead Intellix’s liability for such failure is limited to (at Intellix’s election):
a. in the case of a supply of goods, Intellix replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
b. in the case of a supply of services, supplying the services again or paying the cost of having the services supplied again
(59) It is agreed that you will not bring any claim arising out of this Agreement against any of our past, present or future directors and employees personally. This restriction will not operate to limit or exclude the liability of Intellix for the acts or omissions of any director or employee.
(60) Nothing in these Terms and Conditions of Service shall restrict, modify or exclude any statutory condition, warranty, guarantee, right, remedy or other benefit to you.
SUSPENSION AND TERMINATION
(61) Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement caused by circumstances beyond its reasonable control however nothing in this clause excuses payment of any money due.
(62) We may suspend the services for the duration of any force majeure event and either party may, by written notice, immediately terminate any Agreement affected by a force majeure event if the event continues for 21 days or more.
(63) Either party may terminate this Agreement, or any particular services, without cause upon 14 day’s prior written notice to the other, unless a shorter period is required for matters of urgency if:
a. the other party fails to remedy a material breach despite receiving 60 days written notice of its default;
b. the other party is wound up or placed under official management, or stops trading, or commits an act of bankruptcy;
c. the other party commits fraud;
d. acting responsibly, one party deems the other party to be acting in a grossly negligent manner; or
e. judgement is entered against the other party for more than $20,000.00, which remains unsatisfied or unappealed for more than 21 days;
(64) We may immediately suspend our services or end this agreement at any time without prior notice if:
a. you do not make any payment when due, or any payment is dishonoured or subject to chargeback;
b.you fail to accept our reasonable recommendations;
c. you fail to respond or provide instructions in a timely manner;
d. you give us information or instructions that are false and misleading;
e. we have reason to suspect illegal or unethical activity is taking place within the organisation; or
f. we believe we have a conflict of interest.
(65 )If this Agreement is terminated then in addition to any other rights we may have:
a. all Fees for the balance of the Agreement (calculated using the Fees applicable as at the date of termination), excluding any costs and expenses that we can reasonably mitigate, become immediately due and payable; and
b. we may issue an invoice for any work undertaken but not previously invoiced, whether for our Services or any Additional Services or other charges contemplated by this Agreement.
(66) On completion of our work or on termination of this engagement we will:
a. return to you any documents to which you are entitled except that we will exercise our right to retain documents to which you are entitled relating to this engagement until all of our outstanding fees and disbursements are paid in full;
b. store our file including documents you leave with us for a period of 7 years from the date of our final invoice, and you authorise us to destroy our file after the expiration of that period.
(67) We accept no liability for any losses you suffer if our file, including any documents or other material you leave with us, is damaged or destroyed for any reason.
GENERAL
(68) The parties may only assign or novate this Agreement in whole or in part with the prior written consent of the other party. Upon assignment or novation, the parties’ obligations and benefits under this Agreement are binding on and shall benefit their respective representatives, successors and assigns.
(69) Unless otherwise stated, all monetary amounts are expressed in Australian dollars exclusive of GST.
(70) You are responsible for all duties, charges and legal fees (on a solicitor own client basis) incurred in enforcing this Agreement.
(71) The parties agree that they may communicate and send documents by email, and neither will be responsible nor liable to other party or to any person for any loss or damage, including special or consequential loss or damage, whether arising in contract or in negligence which may arise from or in relation to the use of email.
(72)Nothing in this Agreement constitutes a partnership or contract of employment, and it is the express intention of the parties to deny any such relationship.
(73)Any variation or amendment to this Agreement must be in writing signed by all parties.
(74) If any provision of this Agreement is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.
(75) Any delay or failure to enforce any rights by one party in relation to a breach by the other party will not be construed as a waiver of those rights.
(76)The parties’ obligations under clauses (35) to (38) FEES, (41) to (44) TERMS OF PAYMENT, (45) to (49) INTELLECTUAL PROPERTY, (50) to (60) INDEMNITY AND LIMITATION OF LIABILITY, (65) to (67) SUSPENSION AND TERMINATION, and (74) to (77) GENERAL shall survive the termination of this Agreement for whatever reason.
(77) The laws of the State of Queensland, Australia apply to this agreement and the parties submit exclusively to the courts of that jurisdiction.
Appendix 1 Privacy Collection Notice Disclosure
During this engagement we may collect personal information about you and others from you. We may also collect personal information from other sources, such as representatives of you or your company, your employer (if they are our client), publicly available sources, or other intermediaries. We may be required to collect some personal information by law, for example under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
We collect this personal information to enable us to provide and improve our services, communicate with our clients, market our and other companies’ products and services, and comply with the law (including managing our conflict of interest and independence obligations. If you decide not to provide us with the personal information we ask for, or if you provide us with personal information that is inaccurate or incomplete, we may not be able to respond adequately to your inquiries or provide you with the services you require.
We may provide personal information to our professional advisors and specialist consultants, brokers and agents who refer your business to us, any person acting on your behalf (such as your tax advisor, solicitor, or administrator) insurers, vendors, and other parties who provide services to us, investors, advisors and others where required by law. These entities may be located outside of Australia.
Before you disclose personal information to us about someone else, you should make sure that you are entitled to disclose that information. You should also refer the other person to our privacy policy and this privacy notice.
If you become aware of any breach or alleged breach of privacy laws concerning the information that you have disclosed to us, you must notify us immediately.
If you would like more information about how we handle personal information, including how you may request to access and correct your personal information or lodge a complaint if you believe we have not complied with the Australian Privacy Principles, please see our privacy policy on our website: www.intellix.com.au