Innovation Metrics Terms & Conditions of Engagement
- (Agreement) This Contract governs the agreement between Us and You in respect of the Engagement and sets out the terms and conditions which will apply to the Services We propose to supply to You if You agree. Any instructions You provide to Us after receiving this Contract and/or Your acceptance of the Services or any other services We supply constitutes acceptance of this Contract.
- (Engagement) We agree to undertake, and You agree to enter into, the Engagement on the terms and conditions of this Contract.
- (Fees and expenses) You must pay Our fees specified for the Services in the amount or amounts as set out in the Proposal. In addition to Our fees, We will charge You for the out of pocket expenses incurred by Us or paid on Your The total costs of the fees and expenses to provide the Services will vary depending on the extent and complexity of the Services provided. For these reasons, there may be occasions where the total costs of fees and expenses cannot be predicted accurately in advance and therefore any estimate given is not a fixed quote unless expressly so stated. You must pay Our fees and expenses within 14 days from the date of invoice relating to those fees or expenses or the part of those fees or expenses unless We agree otherwise in writing. If Our invoices are not paid within 14 days then until paid in full We may cease to provide any further Services and may charge interest on the account at a rate equal to the applicable OD Rate increased by 15 percentage points and with interest on Your account to accrue daily from that date being 14 days after the date of the invoice. We may in Our sole discretion require You to pay a non-refundable deposit before commencing the Engagement. Should You not pay the whole or any portion of Our fees and expenses invoiced to you, We have the right to refer recovery of those unpaid sums to a mercantile agent and/or a solicitor. You agree that any and all mercantile agent and/or solicitor’s costs incurred in recovery of these unpaid sums shall also be paid by You (on a full indemnity basis).
- (Commencement and completion) We do not have to commence the Engagement until after You have paid any deposit required by clause 3. Once We start the Engagement, We will use Our best endeavours to ensure that the Engagement is completed and the Services delivered to You by the estimated completion dates set out in the Proposal, or if no dates are set out in the Proposal by the dates We agree with You in writing. However, if the Engagement is not completed and/or the Services are not completed by then You agree that to the maximum extent permitted by law We will not be liable for any claims, actions, proceedings, damages, costs, losses or liabilities in respect of such delay.
- (Information and access) You must, upon request, provide us with such information and records which We consider may be relevant to the Engagement, as well as reasonable access to such persons involved in or connected with Your business as We reasonably require for the purposes of the You warrant the completeness and accuracy of any information or records provided to Us by You and must notify Us as soon as possible if You become aware that any information or records You have provided to us are incorrect or require updating or if you become aware of any change that might alter the effectiveness of the Services We provide. You acknowledge that We will not be performing any independent verification of the accuracy or completeness of any records or information You provide to us. You acknowledge and agree that We are not liable to You for any loss, damage, cost or expense whatsoever associated with Our reliance on the records or information provided to Us by You pursuant to this Contract.
- (Reliance on Services and Deliverables) The Services We provide to You under the Engagement are provided on a good faith basis. We provide no guarantees as to any outcomes from the Services or any Deliverables. Whilst We will endeavour to provide You with the Services with reasonable care, to the maximum extent permitted by law, We make no representation or warranty, express or implied, as to the accuracy, reliability or completeness of the information We provide You. It is Your responsibility to ensure that any action You take in reliance on any information provided to You by Us, our Services and/or any Deliverables will comply with all relevant laws and regulatory requirements that apply to Your All reliance on such information, Services and/or Deliverables is at Your own risk. You are responsible for Your own business decisions and must make Your own independent assessment of the risks, benefits and suitability of any act, action, undertaking, venture or transaction contemplated by the Services or Deliverables, and any information or advice provided in connection with the Services or Deliverables. We provide no assurance or warranty in respect of reliability or accuracy of any forecast, model or prediction or the reasonableness of any underlying assumptions in any forecast, model or projection. Since these relate to the future they may be affected by unforeseen events and actual results are likely to differ. To the maximum extent permitted by law, You agree to release indemnify Us and Our officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against Us or them, whether on their own or jointly with You and whether at common law, under tort (including (without limitation) negligence), in equity, pursuant to statute or otherwise, in respect of any loss, damage, cost or expense arising out of or in relation to any information provided by Us to You, the Services and any Deliverables.
- (Restricted use of Deliverables) Any Deliverables We prepare and provide to You in connection with the Services are provided to You on a good faith basis for use only in connection with the purposes specified in the relevant Deliverables. Such Deliverables are for Your use and information only. They may not be relied on by others. You agree that You will not disclose any such Deliverables to any third party (except Your professional advisers to the extent that they need to know for the purposes of providing services to You and except as required by law, regulation, judicial or administrative process) or summarise or refer to such Deliverables without Our written consent.
- (No financial services or licence) You acknowledge that We do not hold an Australian financial services licence and are not exempted from the requirement to hold such a licence. You acknowledge that We do not carry on a financial services business and that the Services to be provided by us under the Engagement are not financial services and that any Services provided to You by Us under this Contract are for guidance only and should not be relied upon as financial product advice or any other financial service. To the extent that any part of the Services are characterised as financial services then We cannot and are not obliged to provide them. You agree that if You require financial services to be provided to You in connection with the Services, You will at Your cost and expense engage a holder of an Australian financial services license to provide the relevant financial services to You and will indemnify us against any and all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against Us, under tort (including (without limitation) negligence), in equity, pursuant to statute or otherwise, in respect of any claim that the Services provided to You under this Contract amount to a financial service. In this clause 8 of the Contract, the terms Australian financial services licence, financial product advice, financial services business and financial services have the same meanings as are given to those terms in Chapter 7 of the Corporations Act 2001 (Cth).
- (Confidentiality and Information) We will not disclose any information You give to Us regarding Your business that is confidential to any person, other than Our officers, employees or contractors for the purposes of providing the Services, or unless You consent to the disclosure, that information comes into the public domain or We are required to disclose it by law. However, We may use internet email access as a further means of communication and We cannot guarantee the total security of this form of communication due to the internet being a public unregulated network. Further, any loss or damage incurred to Your computer system by using material sent to You via the internet is not, to the maximum extent permitted by law, Our responsibility. In any event, Our entire liability will be limited to resupplying the material and no warranty is made that any material sent to you is correct or free from any computer virus or defect.
- (Access to Premises) You must allow Us access to Your Premises at the times We reasonably require so that We can undertake the Engagement and provide the Services. If You fail to do so, We will not be liable for any consequent failure or delay to perform the You must ensure that the Premises is safe and suitable for access by Us in order to provide the Services.
- (Variations to Engagement or Services) You agree that any revisions or additions You request in relation to the Engagement or Services must be agreed in writing by Us. You agree that We may charge You for such revisions or additions at the costs We notify to You. If We determine that any additional services are required as part of the Engagement or Services due to unforeseen circumstances or complexities arising after We have commenced the Engagement, We will let You know as soon as possible. You agree that We may charge You for any such additional services at the reasonable costs We notify to You.
- (Limitation of liability) To the maximum extent permitted by law, Our liability to You for any breach of any condition or warranty (express or implied) in relation to the supply of the Services is limited (at Our option) to: (i) the supply of the Services again, or (ii) the payment of the cost of having the Services provided You acknowledge and agree that We offer no guarantee or warranty in respect of the Services We supply to You, and all representations, conditions and warranties of any nature made in relation to the Services are expressly excluded from this Contract and shall not bind Us.
- (Exclusion of liability) To the maximum extent permitted by law We exclude all liability for any claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits) made, suffered or incurred by You or any third party (either directly or indirectly) in connection with the Engagement, the Services or the Deliverables.
- (Release and Indemnity) You agree, to the maximum extent permitted by law, to irrevocably release, indemnify and hold harmless, Us and Our respective officers, employees and contractors (Indemnified Party), against all claims, actions, proceeding, damages, costs, losses, liabilities or expenses (including legal costs of a full indemnity basis) of whatever nature and in whatever jurisdiction, howsoever caused (including without limitation negligence, error, misstatement, omission, misrepresentation) and which refer or relate to or arise from, directly or indirectly, whether foreseeable or known at the date of this Contract, the Engagement or the Services provided under this Contract, or any breach of this Contract by You, of any rights of a third party, or of any applicable law. You acknowledge and agree that the release and indemnity contemplated under this clause 14 applies to Us in Our personal capacity and to Us in our capacity as trustee for the other Indemnified Parties that are not a party to this Contract and We accept the full benefit of this clause on behalf of those Indemnified Parties.
- (Intellectual Property Rights) We grant You a non-exclusive, non-assignable, royalty-free, limited licence to use such of Our Intellectual Property Rights in and to the Services and any Deliverables for the sole purpose of enabling You to enjoy the benefits of the Services and Deliverables as intended under this Contract. We may revoke this licence at any time if Our fees and expenses remain overdue for a period of 14 days or if there is a dispute between You and Us. You agree that property in all Intellectual Property Rights in and to the Services, Deliverables and any reports, advice and other information We provide to You, whether before or after the date of this Contract, remain with Us and that other than the limited licence described above You do not have any rights or licence to use any or part of such intellectual property, nor to copy, reproduce or provide to any third party any documents evidencing such intellectual property without Our prior written consent. For the avoidance of doubt, We may provide services, advice, reports, presentations, systems, training packages, media plans, content, or other information or materials similar to the Services or Deliverables for any purpose as We see fit.
- (Publicity and Marketing) Without limiting clause 15, You agree that We may make and/or release promotional or marketing material that refers or relates to the Services and Deliverables and that those Services and Deliverables were provided by Us to You.
- (Pre-Engagement services and information) Any information, materials or services We provide to You before the date of this Contract are subject to the terms and conditions of this Contract.
- (Term and termination) This Contract is ongoing until it is validly terminated in accordance with this Contract or until we reasonably determine that the Services have been provided in accordance with the Proposal. Either You or Us may terminate this Contract with or without cause by providing one month’s written notice to the other party, or We may terminate this Contract if Our fees and expenses remain overdue for a period of 14 days by providing written notice to You, without liability or continuing obligation but You remain liable for, and must pay, any and all of Our fees or expenses up to the date when We cease to provide Services to You. If We cease to provide Services to You, You agree to release Us from any and all liability as a result and We retain the right to keep all documents that You have provided to Us under this Contract.
- (Relationship) You agree that We are a contractor independent of Your control and that the Engagement will not give rise to any fiduciary, agency, trust, employment or other relationship recognised at law or in equity as giving rise to forms of specific rights and obligations.
- (Inconsistency with Proposal) If there is any inconsistency between these terms and conditions and the Proposal, the provisions of these terms and conditions will prevail to the extent of the inconsistency.
- (GST) Any fees and expenses specified for the Services in the Proposal are quoted exclusive of any applicable GST unless they provide otherwise. If GST is applicable to any supply (including the supply of any goods, services, other rights, benefits or other things) made under or in connection with this Contract, We may, in addition to any amount or consideration payable or to be provided under this Contract, recover from You an additional amount on account of GST, such amount to be calculated by multiplying the value of the consideration payable or to be provided by You for the relevant supply by the prevailing GST rate. You will be provided with a tax invoice.
- (Exclusion of implied terms) Subject to any law to the contrary, and except as expressly provided in this Contract, all terms or conditions that would otherwise be implied by law regarding the services to be supplied under this Contract are excluded.
- (Severability) If and to the extent any provision or part of a provision is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
- (Governing Law) This Contract shall be governed by the laws of South Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of South Australia.
- (Entire Agreement) This Contract sets out the entire agreement between the parties.
The terms set out below have the following meanings when used throughout this Contract:
Contract means these terms and conditions and the Proposal, and includes any other documents annexed to or accompanying these terms and conditions;
Deliverables means any advice, reports, presentations, systems, training packages, content, or other information or materials We provide to You as part of or in connection with the Services;
Engagement means the engagement between Us and You for the supply of the Services;
GST means goods and services taxes and other similar taxes;
Intellectual Property Rights means any and all:
- copyrights and other rights associated with works of authorship, including without limitation all moral rights;
- trademarks, trade names, logos and service marks and all associated goodwill;
- trade secrets processes, methodologies and know-how;
- inventions (patentable and unpatentable), patents, designs, drawings, plans or specifications;
- rights to apply for registration, renewal or extension under any law in respect of the above rights;
OD Rate means the interest rate published from time to time by the Commonwealth Bank of Australia as its corporate overdraft reference rate;
Premises means Your address where We agree to deliver the Services or carry out the Engagement as specified in the Proposal or agreed with You in writing;
Proposal means the proposal attached to these terms and conditions;
Services means the services to be supplied as part of the Engagement as described in the Proposal;
We, Us, Our means Innovation Metrics Pty Ltd ACN 647 007 574 of, 217/219 Flinders St, Adelaide SA 5000
You, Your means the person named in and to whom, the Proposal is addressed.