Terms and Conditions
In this Agreement:
Client IP means any materials provided by the Client to One Fell Swoop to provide the Services;
Commencement Date means the date that the Client signs the Letter acknowledging their acceptance of these terms;
Confidential Information includes the terms of this Agreement and all matters arising out of or referred to in the Agreement or disclosed to one party by the other when negotiating this Agreement or during the term of this Agreement in connection with the supply of the Services including details of prospective residents and resident lists but does not include information that is otherwise available in the public domain;
Fees means fees payable for the Services set out in the Letter, or as otherwise agreed between the parties;
GST has the meaning given in section 195.1 of the A New Tax System (Goods and Services Tax) Act 1999;
Indemnified Taxes means all group tax (under Division 2, Part IV of the Income Tax Assessment Act 1936), fringe benefits tax and other taxes (except taxes on the Client’s corporate income and gains and GST), excise duties, customs duties, fees, penalties and other charges imposed by any government or government authority;
Insolvency Event means the occurrence of any one or more of the following events regarding any party to this Agreement:
(a) a meeting has been convened, resolution proposed, petition presented or order made for the winding up of that party;
(b) a receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the Court, or other person of similar function has been appointed regarding all or any material asset of the party;
(c) a security holder, mortgagee or chargee has taken attempted or indicated an intention to exercise its rights under any security of which the party is the security provider, mortgagor or chargor; or
(d) an event has taken place with respect to the party which would make, or deem it to be, insolvent under any law applicable to it;
Intellectual Property Rights means the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions;
Letter means a letter, proposal or estimate of fees of engagement either provided to you with these Engagement Terms and Conditions or access to them
One Fell Swoop means The One Fell Swoop Partnership Pty Ltd ABN 87 611 502 339;
Personnel means a party’s employees, contractors or agents;
Services means the services described in the Letter plus all other incidental services;
Superannuation Payments means the superannuation guarantee charge and all other contributions required by law to be made in respect of superannuation; and
Tax means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition.
2 Terms and conditions
These terms and conditions are to be read with the Letter and apply to the Services. Together, the Letter and these terms and conditions are the Agreement. If the two documents are inconsistent, the terms in the Letter apply to the extent of the inconsistency.
This Agreement commences on the Commencement date and ends on the date when the Services are delivered.
One Fell Swoop agrees to provide the Services on the terms of this Agreement in consideration for the Fees. The Services may be amended by mutual agreement between the parties. The Client must give notice as soon as practicable of any change which it requires in the scope or timing of the Services.
4.2 Performance of Services
One Fell Swoop must ensure that its Personnel in supplying the Services, at all times act in good faith and supply the Services with due skill and care.
One Fell Swoop may subcontract all or any part of the Services.
5.1 Obligations in relation to Personnel
One Fell Swoop will ensure that all of its Personnel involved in the provision of the Services have the skill and expertise necessary to supply the Services in accordance with the requirements of this Agreement.
One Fell Swoop warrants that all of the personnel engaged in the performance of the Services will be its employees or contractors and that it is responsible for all Indemnified Taxes and Superannuation Payments in connection with the supply of the Services to the Client. One Fell Swoop indemnifies the Client against any liability for all such Indemnified Taxes and Superannuation Payments.
The Client agrees that it will not, during the term of this Agreement, or for a period of six months after expiry or termination of this Agreement in accordance with clause 11, attempt to induce, encourage, employ, contract with or solicit any of the One Fell Swoop’s Personnel.
One Fell Swoop will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control. Any timeframes imposed on One Fell Swoop in relation to the provision of the Services, will be automatically extended in relation to any delay caused by:
(a) an act or omission by the Client or its Personnel or other service providers;
(b) the Client failing to comply with its obligations under this Agreement; or
(c) any act or omission of a third party beyond the reasonable control of One Fell Swoop.
In exchange for One Fell Swoop providing the Services, the Client must pay the Fees.
All reasonable out-of-pocket expenses incurred by One Fell Swoop in the course of performing the Services, including travel, meals and accommodation, are payable by the Client.
7.3 Invoice and payment
One Fell Swoop will periodically issue an invoice to the Client for the Fees. This will generally occur on the last day of each month, but depending on the type of Fees being invoiced, may be at other times.
The Client must pay each of the invoices issued in accordance with this clause within 14 days of the date of the invoice unless otherwise agreed.
One Fell Swoop are entitled to cease performing the Services for the duration of any period during which the Client is in arrears of the Fees.
7.5 Payment after termination
If this Agreement is terminated, the Client must, within 14 days of the date of termination, pay all outstanding Fees due and payable under this Agreement.
The Fees are exclusive of any applicable GST. In addition to the Fees and provided our invoices rendered in accordance with clause 7 constitute Tax Invoices, you will pay, by the same time payment of each invoice is due, all GST payable by One Fell Swoop in respect of the Services to which the invoice relates.
8 Client obligations
The Client must:
(a) to the extent necessary to allow One Fell Swoop to provide the Services:
(i) provide One Fell Swoop with all information or documents as may be requested by One Fell Swoop including information or documents owned by other service providers, such as architects or interior designers, in the format requested by One Fell Swoop; and
(ii) provide One Fell Swoop and its Personnel with access to the Client’s Personnel and premises under the control of the Client; and
(b) ensure timely approval of all deliverables that form part of the Services, including concepts, artwork, copy, programming and reports.
The Client must dedicate its Personnel and resources as required for the Client to perform its obligations under this Agreement.
9 Intellectual property (‘IP’) – Consulting
9.1 IP created during performance of the Services
One Fell Swoop retains all copyright and other Intellectual Property Rights in all material brought into existence as part of, or for the purpose of the Services including documents, equipment, information and data stored by any means (Contract Material), and all such Intellectual Property Rights vest on their creation in One Fell Swoop, unless otherwise agreed.
One Fell Swoop grants the Client a licence to use the Contract Material. Failure to pay the Fees will be cause the cancelation of the licence.
9.2 Client IP
The Client irrevocably licences One Fell Swoop to use the Client IP as required to deliver the Services. The Client warrants to One Fell Swoop that use of the Client IP will not infringe the Intellectual Property Rights of any third party.
The Client indemnifies One Fell Swoop against any loss, cost, expense or damage suffered or incurred by One Fell Swoop as a result of any legal proceedings instituted by a third party against One Fell Swoop, which arises directly or indirectly from the Client IP infringing the Intellectual Property Rights of the third party.
10 Intellectual property ‘IP’ – Marketing
10.1 Pre-existing IP
One Fell Swoop retains ownership of all Intellectual Property Rights which One Fell Swoop created prior to the Commencement Date.
10.2 IP created during performance of the Services
Subject to the below, all Intellectual Property Rights in all material brought into existence as part of, or for the purpose of the Services including documents, equipment, information and data stored by any means, vest on their creation in One Fell Swoop.
On payment of the Fees in respect of a material created by One Fell Swoop as part of the provision of the Services to which Intellectual Property Rights attach:
(a) One Fell Swoop irrevocably assigns to the Client the Intellectual Property Rights in that particular material; and
(b) the Client immediately and irrevocably grants to One Fell Swoop, a royalty free, perpetual, irrevocable, worldwide, non-exclusive licence for One Fell Swoop to make any use whatsoever of those Intellectual Property Rights including, without limitation, the right to include part or all of those Intellectual Property Rights in any future works which One Fell Swoop produces for itself.
10.3 Client IP
The Client irrevocably licences One Fell Swoop to use the Client IP as required to deliver the Services.
The Client warrants to One Fell Swoop that use of the Client IP will not infringe the Intellectual Property Rights of any third party. The Client indemnifies One Fell Swoop against any loss, cost, expense or damage suffered or incurred by One Fell Swoop as a result of any legal proceedings instituted by a third party against One Fell Swoop, which arises directly or indirectly from the Client IP infringing the Intellectual Property Rights of the third party.
11.1 Termination for cause
This Agreement may be terminated at any time by either party (Terminating Party) if:
(a) a party materially breaches this Agreement (Defaulting Party) and the breach is not capable of remedy or is capable of being remedied and the Defaulting Party fails to remedy the breach within 30 days of receipt of written notice of the breach from the Terminating Party; or
(b) a party is the subject of an Insolvency Event.
11.2 Termination for convenience
Either party may terminate this Agreement by providing 90 days written notice to the other party.
11.3 Consequences of termination
If this Agreement expires or is terminated for any reason:
(a) the Client must pay One Fell Swoop any amounts due and payable in respect of the period before the termination or expiry;
(b) each party must return or destroy (as directed by the other party) any Confidential Information in their possession which has been supplied in connection with this Agreement;
(c) each party maintain any other rights available to them under this Agreement and any other legal and equitable remedies available to them.
Each party must:
(a) Not use, appropriate, copy, memorise or in any other manner reproduce the Confidential Information for any purpose other than for the benefit of the Services;
(b) keep the Confidential Information of the other party strictly confidential;
(c) disclose the Confidential Information of the other party only to those of its personnel that have a need to know that information in relation to the provision of the Services; and
(d) immediately notify the other party if it becomes aware of any unauthorised access to, or use or disclosure of, any Confidential Information belonging to the other party.
13 Limitation of liability
The Client acknowledges that the Agent has not made and will not make any express or implied warranties in relation to the delivery of the Services, other than those warranties expressly contained in this Agreement. Subject to this clause14, any term that would be implied into this Agreement, including without limitation any condition or warranty, is excluded.
Subject to the Client’s rights arising under the Competition and Consumer Act 2010 (Cth) or other similar consumer legislation, the Client agrees that One Fell Swoop will not be liable in respect of any claim by the Client (whether contractual, tortuous, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the delivery of Services, whether as a result of any breach or default by the Agent or through any negligence of the Agent.
The maximum liability of One Fell Swoop under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement will not exceed the amount of Fees paid by the Client under this Agreement at the time of the breach or negligent act or omission.
If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of the One Fell Swoop is limited, at the option of the One Fell Swoop, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services the supplying of the services again or the payment of the cost of having the services supplied again.
Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of One Fell Swoop will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
14 Dispute resolution
If a dispute arises in connection with this Agreement, one party may give the other party a notice specifying the dispute.
Within five business days after the notice is given, the parties (each represented by a person authorised by the disputant to bind it in connection with the dispute) must confer to resolve the dispute or to decide the method of resolving the dispute.
Unless the parties otherwise agree, the dispute must be referred to mediation if not resolved within fifteen business days after the notice is given.
The disputants must appoint a mediator within twenty business days after the notice is given. If they fail to agree, the mediator must be nominated by the then current President of the Law Society of the Victoria or nominee. The mediation must be conducted in the Victoria.
The mediation ends if the dispute is not resolved within 20 business days after the mediator’s appointment.
Neither disputant may commence court proceedings in respect of the dispute until the mediation ends. This does not affect a disputant’s right to seek injunctive or urgent declaratory relief.
Each disputant must pay its own costs in respect of the dispute resolution process. The disputants must pay in equal shares the mediator’s costs and the costs of third party reports and enquiries requested by the mediator.
No waiver: A party’s failure to exercise or delay in exercising a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right.
Governing law: This Agreement is governed by the laws of the Victoria and the parties submit to the jurisdiction of the courts of Victoria.
Survival: Provisions of this Agreement which, on a reasonable interpretation, can continue to have effect following expiry or termination of this Agreement, continue to have effect notwithstanding any such expiry or termination.
Relationship: Nothing in this Agreement will give rise to a relationship of employee, agent, partner or joint venturer between the parties.
Amendment: This Agreement may only be varied or replaced by an agreement executed by the parties.