1. Agreement
This Agreement sets out the standard terms and conditions on which we will provide human resources management consultancy Services to you. We will treat you as having accepted this Agreement if you continue to instruct us after you receive them
2. Definition and Interpretation
In this Agreement unless inconsistent with the context or subject matter:
Definitions:
Addressee means each person to whom the Letter is addressed and includes, where relevant, any additional parties who may agree to the terms of this Agreement.
Agreement means the Letter and the Terms and Conditions.
Annexure means a document which is annexed or attached to the Letter and identified as an annexure or attachment to it and includes a schedule, appendix or attachment to the Letter.
Confidential Information means and includes:
a. the terms of this Agreement and the details of the Services;
b. any information or material which is proprietary to or deemed to be proprietary to a party;
c. any Intellectual Property and methodologies and technologies that you use in your business, and to which we are exposed in the course of providing the Services or we use to provide the Services;
d. trade secrets;
e. any information designated as confidential by either of us;
f. any Work we provide to you; and
g. any information acquired by either of us solely as a result of the Services,
but excludes any information that:
a. is or becomes publicly available, except by a breach of this Agreement;
b. is disclosed to either of us by a third party provided that the recipient reasonably believes the third party is legally entitled to disclose such information;
c. was known to either of us before we received it from the other;
d. is developed by either of us independently of any disclosures previously made by the other;
e. is disclosed with the other’s prior written consent; or
f. is required to be disclosed by law, order of any court, tribunal, authority or regulatory body, rules of any stock exchange or any professional standard, provided that, to the extent permitted by law, the party disclosing the Confidential Information notifies the other of the requirement to disclose and only discloses the minimum Confidential Information required to comply with the law or requirement.
deliberatepractice means deliberatepractice Pty Ltd (ABN 77 140 532 654) of Level 4. 410 Collins Street, Melbourne VIC 3000 and any other related entity.
Disclosure Law means any legislation, statute or subordinate legislation or guidance in any relevant jurisdiction relating to the disclosure of HR Advice which applies to you or any HR Advice we may give you.
Existing Material means any methodologies, technologies or other proprietary information either in existence at or prior to the date of this Agreement or developed by us independently of the Services, which is used by us or provided to you, in providing the Services.
Fees means the fees for the Services as stated in, or calculated in accordance with, this Agreement. GST has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
HR Advice means any advice, whether written or oral, relating to human resource management, strategy, structuring, and concept implementation provided by us as a result of the Services.
Information means any information, documents, materials, facts, instructions or Confidential Information provided to us.
Intellectual Property means all industrial and intellectual property rights throughout the world and includes rights in respect of copyright, patents, trade marks, designs, trade secrets, know-how, our Confidential information and circuit layouts in our Work.
Letter means the engagement letter between us to which these Terms are attached.
Loss means any direct, indirect or consequential losses, any liabilities, claims, damages, costs or expenses (including interest where applicable), judgment or order however caused or arising as a result of the Services.
Personal information has the meaning given to it in the Privacy Act. Privacy Act means the Privacy Act 1988 (Cth).
Professional Advisers means your lawyers or other professional advisers, such as your accountant, who are assisting you in relation to the Services.
Professional Standards Legislation means a law providing for the limitation of occupational liability by reference to schemes that are formulated and published in accordance with that law and includes the Professional Standards Act 2003 (Vic) and any similar legislation in each state and territory in Australia.
Purpose has the meaning given to it in the Letter or our Work, or where both are silent on this, the purpose for which we provide our Work to you.
Unexpected Delay means any delay in providing the Services that is caused or contributed to by an act or event (including the non-performance of your obligations) that is beyond our control or was not reasonably foreseeable by either of us at the date of this Agreement.
Us means deliberatepractice, or both you and deliberatepractice, as the context requires.
We and Our means deliberatepractice, the contractors hired by deliberatepractice and any of their Representatives.
Work means any advice or materials including any reports, documents, advice, opinions, editions, notes or other deliverables, whether in draft or final form, in writing or provided orally, that we prepare either alone or in conjunction with you or provide to you as it result of this Agreement and includes any Reports, Working Papers and Existing Material.
Working Papers mean any papers created by us as our record of the Services.
Report has the meaning given to it in the Letter or where the Letter does not set out a specific report, means any documents or reports we provide to you as a result of this Agreement including those consisting of advice or opinions.
Representative means any officer, employee, consultant, agent, contractor or subcontractor of either of us, who is involved in the activities to which this Agreement relates and in the case of deliberatepractice, includes a director.
Services means the services described in the Letter.
Terms means these standard terms and conditions.
You and Your means each Addressee and where applicable, each Addressee’s Representatives or advisers.
Interpretation:
a. Headings are for convenience only and do not affect how this Agreement is interpreted;
b. The singular includes the plural and vice versa; if a word is defined its other grammatical forms have a corresponding meaning]
c. The use of words such as includes or including to introduce a list does not limit what may be included in that list;
d. The word person includes an entity, a firm, a body corporate, an unincorporated association or an authority;
e. A reference to this Agreement or an act or instrument is to this Agreement, or that act or instrument as amended, varied, novated or replaced from time to time;
f. A reference to dollars or $ means Australian dollars;
g. A reference to an Annexure or clause or subclause is to an Annexure to, or clause or subclause in this Agreement; an Annexure forms part of this Agreement; and
h. If there is any conflict between these Terms and any other part of this Agreement, the following order of priority will apply:
i. the Letter;
ii. the Annexure; and
iii. the Terms ;
3. Duration Services
This Agreement starts on the date you sign and return the Letter to us or when we first start work on the Services for you, whichever is first. Unless terminated in accordance with this Agreement, termination occurs when we have completed providing the Services to you and you have paid us our Fees in full.
4. deliberatepractice Services
We will provide the Services to you with the degree of skill and expertise expected of an HR professional advisor and we will use all reasonable efforts to complete the Services within any agreed time frame.
5. deliberatepractice Representatives
We will use reasonable endeavours to ensure that our Representatives named in the Letter are available to provide the Services. Provided that, we may replace or reassign any Representative at any time on reasonable notice. Each of us agrees that, during the duration of this Agreement and for a period of twelve (12) months after it ends, we will not directly or indirectly solicit for employment an employee or Representative of the other. However, both of us may advertise or recruit generally in the media.
a. In the event that a Client places a deliberatepractice employee or Representative in a role with the Client or any other person or body to whom the Client has introduced the employee or Representative, the Client will be charged a fee based on deliberatepractice’s Terms of Business_ Talent Acquisition
6. deliberatepractice Contractors
01. deliberatepractice is a human resources management consulting service business. We may use contractors to help us provide the Services to you. Where this happens, we will be responsible for any work undertaken by our contractor(s) and you agree that:
a. None of the contractor(s), apart from us, will be responsible to you;
b. You will not bring any claim or proceedings in connection with the Services or this Agreement against any of the other Contractor(s) that we may use to provide the Services to you; and
c. You acknowledge and agree that any consultant, contractor or subcontractors we use are under our direct supervision and control.
02. Any contractor we use to provide the Services to you will rely on this clause, and is, to the extent permitted by the law of any relevant jurisdiction, an intended third-party beneficiary of, and entitled to enforce, this Agreement in its own right.
7. Confidentiality
01. Each of us agrees to protect and keep confidential any Confidential Information that is given to us by the other.
02. Except as set out below, we will only use or disclose your Confidential information to provide the Services to you. Where relevant, we may also disclose your Confidential Information to others who will only use and disclose it to provide the Services to you. We will not disclose your Confidential Information to anyone else (other than our own professional advisers and insurers on a confidential basis) unless you agree first or we are required by law or professional obligations to do to. Except as required by law or where we agree otherwise, you will keep confidential our Work, any methodologies and technology used by us to provide the Services and any Confidential Information we give to you in providing the Services. You may disclose our Confidential Information to your Professional Advisers and insurers on a confidential basis.
03. We will return your information to you at any time at your request. We may also destroy it if you ask us to. However, we are entitled to retain one copy of any Information you provide to us or which forms part of our Working Papers, provided that we will continue to keep this Information confidential in accordance with this Agreement.
8. Personal Information and Privacy
We may collect Personal Information about your business when we provide the Services to you. If we do, you agree to work with us to ensure that we both meet any obligations we may each have under the Privacy Act including, where relevant, notifying the individual to whom the Personal Information relates of who we are and how we propose to use their information. Where you provide us with any Personal Information, you confirm that you have collected this Personal Information in accordance with the Privacy Act, that you are entitled to provide this Personal Information to us and that we may use and disclose this Personal Information for the Purpose. We will handle Personal Information in accordance with the Privacy Act.
9. Intellectual Property
Unless otherwise agreed, we will retain ownership of the Intellectual Property in our Work. You agree we can use your logos and marks on our Work, unless you tell us otherwise.
10. deliberatepractice’s Work
Our Work is for your benefit and use only and for that Purpose only.
01. Unless we give our prior written consent:
a. Our Work must not be used or disclosed for any other purpose, referred to in any document or made available to any other person, except your Professional Advisers, on the terms of this Clause; and
b. Our Work and the Services may not be relied on by anyone other than you;
02. You may provide a copy of our Report to:
a. Your Professional Advisers, provided that you ensure that each Professional Adviser treats our Report as confidential and does not use or disclose our Report in a manner that is not expressly permitted by this Agreement; and
b. Any other person who is acceptable to us, with our prior written consent.
03. We are not responsible to anyone (apart from you) who is provided with or obtains a copy of our Work without our written agreement.
04. If we give you our Work in draft form or orally, we do so only on the basis that you may not rely on it in that form. Accordingly, we will not be held responsible for reliance on draft Work or oral comments or advice.
05. You acknowledge that the signed and dated copy of our Report is the definitive version.
06. Sometimes, circumstances may change after we have provided our final Work to you; unless we agree with you otherwise, we will not update any final Work we have provided to you.
07. You acknowledge that any use of or reliance on our Work that is contrary to this Agreement may expose us to a claim from someone with whom we have no relationship or whose interests we have not considered in providing the Services.
08. Accordingly, you agree to indemnify us against any Loss we may suffer or incur in respect of any claim proceeding hearing suit or action by a third party that arises as a result of:
a. any use or distribution of; or reliance on, our Work that is contrary to the terms of this Agreement; or
b. any access to, or use of our Work, by any of your Professional Advisers.
09. This indemnity does not apply to any Loss incurred in defending a claim or action by a third party:
a. results from any wilful misconduct or fraudulent act or omission by us;
b. where that third party has signed an agreement with us that provides that they can rely on our Work; or
c. where we have agreed in writing that our Work may be included in publicly available documents.
11. Our Fees
01. The Fees and the basis on which they are calculated are set out in this Agreement. We may review the Fees where:
a. an Unexpected Delay occurs;
b. there is a change in the scope of the Services we agreed to provide to you; or
c. you do not accept this Agreement within three (3) months of the date of the Letter.
02. You agree to pay us the Fees for the Services in accordance with this Agreement.
03. Unless otherwise stated, our Fees exclude GST. You agree to pay any GST imposed on us, now or in the future, in relation to this Agreement. Where GST is payable on any taxable supply made under this Agreement, you agree that the Fee payable for this supply will be increased by an amount equivalent to the GST payable by us in respect of that supply.
04. We will charge you at cost for any expenses we incur in providing the Services to you. For example, any costs for travel associated with the Services or goods or services we buy on your behalf. We will tell you what these expenses are before we incur them if they are anything other than incidental.
05. Unless we agree with you otherwise, we will use economy for travel within Australia.
06. We will invoice you monthly in arrears for the Fees (unless we agree with you otherwise) and you agree to pay our invoice within fourteen (14) days of receiving it. You agree to pay any undisputed portions of an invoice even if there is a dispute between us about that invoice or another invoice. Where amounts remain due and unpaid we may charge you interest at an annual rate of 2% over the Reserve Bank of Australia base rate ruling on the date payment is due.
07. Without limiting any other rights we may have, we are entitled to suspend or terminate the Services, in whole or part, or to retain or withhold any information we may hold in relation to the Services or any Work we have done for you if you do not pay our invoices on time.
12. What You Agree To Do
01. You agree to co-operate with us and provide us with all reasonable and necessary assistance so that we can provide the Services to you. This includes providing us with timely and reasonable access as appropriate, to your premises, facilities, Information and Representatives.
02. In addition to any responsibilities you may have that are set out in the Letter, you are responsible for:
a. the performance of your Representatives;
b. making timely decisions in connection with the Services;
c. designating a competent employee to oversee the Services;
d. evaluating the adequacy of the Services, as they have been described in the Letter, for your particular purposes and needs;
e. providing us with accurate and complete Information. Where any Information that we require in order to provide the Services is to be provided by someone else, you are responsible for ensuring that Information is provided to us. You will need to give us all Information that is relevant to the Services, even if the same Information has been given to us previously during another engagement; and
f. updating any Information where there has been a material change to that Information, including telling us if any of your circumstances change during the course of the Services.
03. You acknowledge that:
a. while the Services may include advice and recommendations, you are responsible for making any decisions in relation to our advice or recommendations and for their implementation, including any results or consequences;
b. unless you engage us specifically to do so, you are responsible for managing all aspects of your business, making all decisions and operating all accounting, internal control or management information systems;
c. our ability to provide the Services depends on you meeting your responsibilities under this Agreement and instructing us or responding to our requests in a timely and effective manner; and
d. we are entitled to and will rely on your Information, the decisions you make and any approvals you give.
13. deliberatepractice’s Responsibility To You
01. Unless otherwise required at law our liability to you for any Loss or causes of action arising in relation to this Agreement, including for negligence, is limited as set out below:
a. where a scheme approved under Professional Standards Legislation applies, in the manner provided by that scheme; or
b. where a scheme or the Professional Standards Legislation does not apply, to the amount that is the lesser of ten (10) times our Fees and $1 million.
02. In either case, we will only be liable to you for that proportion of the total Loss that we have caused or to which we have contributed
03. will not be liable for any Loss, or failure to provide the Services, which is caused by an Unexpected Delay or which arises as a result of us relying on any false, misleading or incomplete Information
14. Unexpected Delay
We shall not be held responsible for failure in providing the Services caused by Unexpected Delay. We shall advise you if delay will affect the Services and the cause of that delay. You acknowledge that this Agreement will be varied to include any change to the scope of the Services, the Fees or the timeframes for completion of the Services if any delay requires it. If we are required to perform additional services because of an Unexpected Delay, then this Agreement will also be varied to include those additional services and any additional Fees that apply.
15. Conflict of Interest
We may from time to time identify potential conflict of interest. If this happens, we will apply appropriate safeguards to manage it. For example, we may ask for your consent to continue to provide you with the Services. You acknowledge that we may need to terminate this Agreement if we are unable to resolve or manage a conflict of interest satisfactorily.
16. Insurance
We shall maintain insurance in relation to the Services, including professional indemnity insurance in an amount of not less than $10 million during the duration of this Agreement and for a period of seven (7) years after it ends.
17. Termination
01. Either of us may terminate this Agreement:
a. at any time by giving the other thirty (30) days written notice; or
b. immediately if the other becomes insolvent or otherwise ceases to carry on business or commits any material breach of this Agreement that is either incapable of being remedied or is not remedied within fourteen (14) days of receipt of a notice requiring the breach to be remedied.
02. We may terminate this Agreement if:
a. you fail to meet your obligations under this Agreement including to pay our Fees within the time specified or to provide us with adequate Information or instructions; or
b. there is a change of circumstances beyond our reasonable control (such as regulatory related developments) that prevents us from providing the Services to you.
03. If this Agreement is terminated:
a. you agree to pay us the Fees for any work we have done and any expenses we have incurred up to the date of termination;
b. where relevant, each of us will return to the other any documents or property of the other, except that we may retain one copy of all Information for our record keeping requirements; and
c. this does not affect any accrued rights of either of us or any provision of this Agreement that continues to apply.
04. Each provision of this Agreement capable of having effect after termination of this Agreement shall survive the termination of this Agreement and the performance of all obligations under this Agreement shall not merge on termination.
18. Dispute Resolution
Each of us agrees to use reasonable endeavours to resolve any dispute that arises in connection with this Agreement by mediation before bringing a legal claim or starting legal proceedings against the other, and comply with the Australian Commercial Disputes Centre Guidelines in relation to any mediation that may occur.
19. Disclosure of HR Advice.
01. Where we provide you with HR Advice, nothing in this Agreement prevents you from disclosing that HR Advice, either in whole or part, under an applicable Disclosure Law. If you disclose any HR Advice under this clause you must ensure that any person to whom our HR Advice is disclosed is aware that our HR Advice is only for your information and use, may not be relied on by anyone other than you, and that we are not responsible to anyone apart from you.
02. You acknowledge and agree that:
a. we have not placed any limits on your disclosure of the HR Advice which you may be required to disclose under an applicable Disclosure Law;
b. all HR Advice is for your exclusive use and must be used only by you and only for the Purpose and may not be relied on by any one other than you;
c. we are not responsible to anyone (apart from you) who is provided with the HR Advice; and
d. none of your other advisers have imposed or will impose any conditions of confidentiality on any HR Advice.
20. Relationship
We are engaged as an independent consultant. Neither of us is an agent or representative of or has the authority to bind the other. Neither of us will act or represent ourselves, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other. This Agreement is not intended and will not be taken to constitute a partnership, agency, employment, joint venture or fiduciary relationship between us.
21. Entire Agreement
This Agreement is the entire agreement between us. It supersedes all prior communications, negotiations, arrangements and agreements, either oral or written direct or implied between us in relation to its subject matter. Any changes to this Agreement must be agreed to in writing by both of us.
22. Assignment
Neither of us may transfer, assign or novate this Agreement without the prior written consent of the other.
23. Electronic Communication
Each of us agrees that we may communicate with each other electronically. Neither of us is responsible to the other for any loss suffered in connection with the use of e-mail as a form of communication between us.
24. Severability
If any of the terms of this Agreement are not legally enforceable then that term or the relevant part of it will be ignored, but in all other respects this Agreement will have full effect.
25. Governing Law
This Agreement is governed by the laws of Victoria and each party irrevocably submits to the jurisdiction of the courts of that State.
26. General
01. A waiver by one of us of a breach by the other party of any term of this Agreement does not operate as a waiver of another term or a continuing breach by the other of the same or any other term of this Agreement.
02. To the extent permitted by law, we disclaim all warranties, either express or implied, in relation to the Services and the Work other than any written warranty made in the Terms.
03. The rights and remedies in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
