Standard Terms & Conditions of Business
These standard terms and conditions are to be read subject to our engagement letter to you and any subsequent electronic communications between us. These standard terms and conditions apply to all services that we perform for you that are described in the engagement letter or subsequently agreed (called “the Services”). Together, the engagement letter, all electronic communications and these terms are called “this agreement”. If there is inconsistency, the terms in the engagement letter and the electronic communications override these standard terms and conditions.
TPS must use all reasonable commercial efforts to complete the Services within the set time. We will perform the Services with due care, competence and diligence; however the quality of the Services will depend on input from you.
We rely and act on the information provided to us by you. If you provide us with any inaccurate or incorrect information we are not liable
for any direct, indirect or consequential loss that you may incur as a result of us acting on such information.
You must instruct us fully and, in a timely fashion, give TPS each of the following (as they are ordinarily reasonably required to perform the Services):
information - TPS is entitled to rely on the accuracy of that information without independently verifying it. That is so whether the information is provided by you, your representatives, or your advisers;
access - to files, records and information technology systems, to premises and to people (whether management or staff) with relevant skills and experiences;
resources - you must provide (and designate to the assignment) all resources that are reasonably necessary to ensure timely approval, development and sign-off of all project plans, specifications, accounts and deliverables.
You must, when we are required to attend your business premises, provide us with a working environment which is secure and is compliant with
the occupational health and safety laws and which is without risk to health and safety.
Any period or completion date for provision of the Services is an estimate only. If we cannot complete the Services by any estimated date, we will complete the Services within a reasonable time.
TPS will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control -
including the untimely performance by you of your obligations. In such case, TPS is entitled to review its fees and, if the delay is
substantial, terminate this agreement.
FEES & EXPENSES
We will issue our invoices for fees and any expenses relating to the Services to you or as we may otherwise agree. In the event that you direct us to issue an invoice to another party, you will remain responsible for payment until our invoice is paid in full.
In addition to the fees, you agree to pay:
all reasonable expenses including (but not limited to) travel, meals and accommodation; and
any tax or other charge imposed on us, other than income tax (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, this agreement including (but not limited to) a goods and services tax (“GST”). Note: any fees chargeable under this agreement may be varied to reflect the net financial impact of any change in law affecting the cost to TPS of providing the Services including, without limitation, the introduction or change in the rate of GST in relation to the Services provided by us under this agreement.
TPS is entitled to review fees quoted, if you do not proceed with the engagement within 60 days of the engagement letter, also if we are still performing the Services -including any related services - more than 12 months from commencement.
You must pay our fees and expenses within 15 days of the date of our invoice. We reserve the right to perform no further work for you until all outstanding invoices are paid in full.
If you default in payment by the due date of any invoice, then such outstanding money becomes immediately due and payable and we may, without prejudice to any of our other rights:
charge interest on the outstanding money at the rate pursuant to the Penalty Interest Rates Act 1986 (Vic) plus 4% for the period from the due date until we receive payment in full;.
cease or suspend supply of any further Services to you; or
by written notice to you, terminate any uncompleted agreement with you.
Both TPS and you agree to take reasonable steps to maintain (within our respective organisations) the confidentiality of any proprietary or confidential information of the other. If you wish to provide a third party with copies of TPS reports, letters, information or advice, you must obtain prior written consent from us. TPS reserves the right to:
set the terms on which those copies are given or used; or
require the third party to enter into a direct relationship with us.
INTELLECTUAL PROPERTY RIGHTS
TPS retains all copyright (and other intellectual property rights) in everything it develops (or is involved in developing) either before or during the course of an engagement - including systems, methodologies, software and know-how. We also retain all copyright (and other intellectual property rights) in all reports, written advice or other deliverables we provide to you - although you will have the full right to use these materials within your own organisation. If you wish to use these materials outside your own organisation, you must first get our written permission. You consent to us inserting your logos and other similar intellectual property on our deliverables where appropriate unless you notify us to the contrary. We acknowledge that such use will not amount to any transfer of ownership to us.
INDEMNITY FOR LIABILITY
You agree to indemnify TPS against all loss, liabilities, claims, costs and expenses (including without limitation all legal costs and expenses) collectively referred to as “Loss” (including any GST payable by TPS on amounts paid by you under this indemnity) incurred by TPS:
in respect of any claim by a third party which is related to, arises out of, or is in any way associated with the Services or this engagement;
directly or indirectly as a result of you defaulting in your obligations under this agreement.
However, the indemnity does not apply to any Loss in respect of any matters which are determined at law, to have resulted from TPS’s negligent, wrongful or wilful acts or omissions.
EXCLUSIONS AND LIMITATIONS OF LIABILITY
Except as specifically stated here, the agreement does not include by implication any other term, condition or warranty in respect of the quality, fitness for purpose or description of the Services or any contractual remedy for their failure
If you are a consumer under the Australian Consumer Law ("ACL") then nothing in these terms and conditions restricts, limits or modifies your rights or remedies against us for failure of a statutory guarantee under the ACL. If you are not a consumer under the ACL, then other than as stated in the agreement, we are not liable to you or anyone else in any way arising under or in connection with the provision of the Services other than as provided for by a scheme approved under application Professional Services legislation.
GOVERNING LAW & JURISDICTION
All aspects of the Services and the engagement letter are governed by, and construed in accordance with, the laws of the State of Victoria and territory of Australia. Both you and TPS irrevocably submit to the exclusive jurisdiction of the Courts of that state or territory.
VARIATION & SURVIVAL
This agreement may be varied by written agreement of the parties. Provisions of this agreement that are capable of having effect will survive its termination.
We will provide the Services as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship. No party has the right, power or authority to oblige or bind the other in any manner.
If there is a dispute relating to the Services or this agreement, the parties will submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute will be given for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree, by the Australian Commercial Disputes Centre (ACDC). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provisions of this clause. If the dispute is not resolved within 60 days after notice of the dispute, the mediation will terminate unless the parties otherwise agree.