TERMS AND CONDITIONS FOR THE SUPPLY OF ADVISORY SERVICES
These terms and conditions (Supply Terms) shall apply to the provision of advisory services by Future Leadership Pty Ltd (ACN 099 487 573) (Future Leadership) to the applicable client identified in a Proposal (Client). The Client accepts these terms and conditions by accepting the Proposal.
1. Definitions
The following definitions apply in these Supply Terms:
Authorised Persons means in relation to a party:
a) the directors, secretary or any other person appointed to act as an authorised officer of that party;
b) the employees of that party;
c) the legal, financial and other advisers of that party; and
d) the respective officers and employees of those legal, financial and other advisers.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Charge means an expense incurred by Future Leadership in connection with its provision of the Services and/or the Deliverables during the Engagement, including those referred to in clause 4.1(b).
Claim means a claim, action, proceeding, judgment or demand made or brought by or against a party, however arising and whether present, unascertained, future or contingent.
Future Leadership Personnel means an employee, officer, agent, contractor or subcontractor (including employees, officers and contractors of subcontractors) of Future Leadership who is involved in delivering Services and/or the Deliverables to the Client.
Future Leadership Resources means any resources of Future Leadership including any training materials, equipment or persons which are specified in these Supply Terms as being required to be provided by Future Leadership or are otherwise made available to the Client by Future Leadership in connection with the provision of the Services and/or the Deliverables during the Engagement.
Client Resources means any information or documentation of the Client which is reasonably required by Future Leadership to enable it to provide the Services and/or the Deliverables during the Engagement.
Client Site means any premises owned, leased or occupied by the Client which Future Leadership or Future Leadership Personnel access for the purpose of providing the Services and/or the Deliverables during the Engagement.
Commencement Date means the date of the Proposal.
Confidential Information means:
a) these Supply Terms;
b) Information disclosed to the Receiving Party or to the Receiving Party’s Authorised Persons by the Disclosing Party or by the Disclosing Party’s Authorised Persons, before or after the date of these Supply Terms, that is expressly designated at the time of disclosure as confidential by the Disclosing Party; and
c) Information of the Disclosing Party that is not generally available in the public domain, but does not include Information that:
i) the Receiving Party can prove by contemporaneous written documentation was in the lawful possession of the Receiving Party before the Disclosing Party had any dealings with the Receiving Party or was independently generated by the Receiving Party or on its behalf;
ii) is in the public domain otherwise than as a result of a breach of clause 8 or any other obligation of confidentiality owed to the Disclosing Party; or
iii) was legally and properly obtained by the Receiving Party from any other source without restriction on further disclosure.
Control has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
Deliverables means a product to be provided by Future Leadership to the Client in connection with the Engagement as more particularly described in the Proposal, which may include, but is not limited to, any consulting tool that may be described as e-Learning (stand-alone online offerings delivered via technology), assessment or selection tools, or blended or tailored learnings.
Developed Materials means Materials that are created or developed or produced by Future Leadership as part of providing the Services and/or the Deliverables during the Engagement and were not in existence prior to the commencement of the Engagement.
Disclosing Party means a party who discloses its Confidential Information to the Receiving Party.
Engagement means the engagement of Future Leadership by the Client to provide to the Client the Services and/or the Deliverables described in the Proposal.
Fees means the fees payable by the Client to Future Leadership for the provision of the Services and/or the Deliverables during the Engagement, as set out in the Proposal.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Information means information regardless of form relating to or developed in connection with the Disclosing Party or its business including financial affairs, projections, forecasts, accounts, prospects, strategies, business processes and system functionality, business operations, assets, liabilities, customers, personnel, contracts, product and stock and sales information.
Insolvency Event means in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors, or in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or, in relation to a body corporate or an individual, the occurrence of any event that has a substantially similar effect to any of the above events.
Intellectual Property Rights means all present and future copyright, rights to inventions including patents and patent applications, modifications or improvements to the same, registered and unregistered trade marks, registered and unregistered designs, rights to trade secrets and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fie
Materials includes documents, equipment, software (including source code and object code version), goods, information and data stored by any means including all copies and extracts of them.
Personal Information means information or an opinion about an identified or reasonably identifiable natural person (whether true or not), including personal information as defined in the Privacy Act 1988 (Cth).
Privacy Laws means:
a) the Privacy Act 1988 (Cth) and the Australian Privacy Principles in the Privacy Act 1988 (Cth); and
b) any other law or regulation that regulates or applies to the collection, storage, use, disclosure or management of Personal Information.
Proposal means the particulars of services, deliverables, duration, timeframes, fees and invoice frequency as specified in an invoice, quotation, proposal or statement of work document provide by Future Leadership to the Client.
Receiving Party means a party who receives the Confidential Information from or on behalf of the Disclosing Party.
Services means the services to be provided by Future Leadership to the Client during the Engagement, as more particularly described in the Proposal.
Term means the duration as specified in the Proposal.
Timeframes means any timing requirements agreed between Future Leadership and the Client for the provision of the Services and/or the Deliverables (or any part of the Services and/or the Deliverables) as specified in the Proposal or otherwise agreed between the parties in writing during the Engagement.
2. Provision of Services
a) The Client has engaged Future Leadership to provide the Services and/or the Deliverables (Engagement).
b) Future Leadership will provide the Services and/or the Deliverables during the Engagement pursuant to the terms set out in these Supply Terms.
c) The Client accepts these Supply Terms by executing these Supply Terms or by continuing to engage Future Leadership after receiving these Supply Terms.
d) For the avoidance of doubt, the Engagement will end (unless terminated earlier under these Supply Terms) once the Services and/or the Deliverables have been provided to the Client.
e) Future Leadership will have and maintain at all times during the Engagement all Future Leadership Personnel and other resources necessary to provide the Services and/or the Deliverables.
f) The Client will provide or make available to Future Leadership the Client Resources and any other resources or facilities reasonably requested by Future Leadership to enable Future Leadership to provide the Services and/or the Deliverables to the Client and otherwise fulfill the requirements of the Engagement. If the Client fails to provide or make available any Client Resources, the parties may agree on a reasonable extension of time to any Timeframes.
g) The Client expressly authorises and grants to Future Leadership and each member of the Future Leadership Personnel an express, irrevocable licence to enter the Client Site for the purposes of delivering the Services and/or the Deliverables during the Engagement.
h) The Client indemnifies Future Leadership against any loss that may be incurred or sustained by Future Leadership and any Future Leadership Personnel as a result of the entry to the Client Site.
3. Timeframes
a) Subject to clause 3(b), Future Leadership will use reasonable endeavours to supply the Services and/or the Deliverables in accordance with the Timeframes.
b) If the Client becomes aware of anything which will or is likely to impact Future Leadership’s ability to provide the Services and/or the Deliverables within the Timeframes, the Client must give Future Leadership prompt written notice of the delay and the Client’s best estimate of the extent of the delay.
4. Payment of Fees
4.1 Fees and Charges
a) The Client will pay to Future Leadership the Fees specified in the Proposal as consideration for the Services and/or the Deliverables to be provided by Future Leadership to the Client as part of the Engagement.
b) Out of pocket expenses or expenses related to the Engagement such as travel, meals and lodging for Future Leadership Personnel, report preparation, printing, graphics, clerical overtime and express mail postage/couriers are in addition to the Fees and will be invoiced at cost, exclusive of GST, or at Future Leadership’s standard hourly labour rates (as set out in the Proposal or as advised from time to time).
4.2 Invoicing and payment terms
a) Future Leadership will issue tax invoices for the Fees and Charges payable by the Client for the provision of the Services and/or the Deliverables or in connection with the provision of the Services and/or the Deliverables.
b) Fees will be invoiced to the Client on the basis set out in the Proposal.
c) Charges will be invoiced to the Client as they are incurred throughout the course of the Engagement.
d) The Client will pay Future Leadership’s invoices within 14 days of the date of the invoice.
4.3 Non-payment of Fees and Charges
If the Client fails or refuses to pay any Fees or Charges payable in accordance with clauses 4.1(a) or 4.1(b) and issued in accordance with clause 4.2, then, without prejudice to any other right or remedy available to Future Leadership and to the extent permitted by law:
a) Future Leadership may suspend provision of the Services and/or the Deliverables until any outstanding invoices have been paid;
b) Future Leadership may exercise any right to terminate these Supply Terms in accordance with clause 11;
c) the Client will be liable for all reasonable costs incurred by Future Leadership in relation to recovery of unpaid amounts (including any fees charged by debt collectors engaged by Future Leadership); and
d) the Client acknowledges that Future Leadership reserves the right to charge interest on any unpaid amounts at the rate under section 2 of the Penalty Interest Rate Act 1983 from and including the date payment of the invoice was due until but excluding the date payment is made (with interest being paid in priority to any payment of the outstanding amount).
5. GST
a) The consideration for any supply made under or in connection with these Supply Terms does not include an amount for GST, unless it is expressly stated in these Supply Terms to be inclusive of GST.
b) To the extent that GST is or becomes payable on any supply made under or in connection with these Supply Terms, the party required to provide the consideration for the supply must, in accordance with applicable GST legislation, pay in addition to and at the same time as the consideration to be provided, an amount equal to the amount of GST on the supply.
6. Rescheduling or cancelling Services
a) If the Client reschedules a workshop, assessment, training session or e-Learning to be provided as part of Services and/or Deliverables during an Engagement, Future Leadership may charge the Client any reasonable costs incurred by Future Leadership as a result of the rescheduling of Services and/or Deliverables.
b) Subject to the payment of any Cancellation Fees by the Client (as calculated in accordance with clause 6(c)), the Client or a Client participant may cancel a coaching session, workshop, assessment, training session or e-Learning to be provided as part of Services and/or Deliverables during an Engagement, by providing Future Leadership with prior written notice.
c) If a Client or Client participant cancels a coaching session, workshop, assessment, training session or e-Learning to be provided as part of Services and/or Deliverables during an Engagement, Future Leadership may invoice the Client and the Client must pay to Future Leadership a Cancellation Fee on the following basis:
i) For coaching sessions:
- A) 100% of the Fees is payable by the Client if the Client or Client participant cancels within 24 hours prior to the coaching sessions
ii) For workshops and training sessions:
- A) 50% of the Fees are payable by the Client if the Client or Client participant cancels more than 8 weeks prior to the first workshop, assessment or training session to be provided as part Services;
- B) 75% of the Fees is payable by the Client if the Client or Client participant cancels between 4 and 8 weeks prior to the first workshop, assessment or training session to be provided as part of Services;
- C) 100% of the Fees is payable by the Client if the Client or Client participant cancels within 4 weeks prior to the first workshop, assessment or training session to be provided as part of Services
iii) For assessments:
- A) 25% of the Fees is payable by the Client if the Client or Client participant cancels before the Client or Client participant has been set up by Future Leadership to complete the assessment electronically;
- B) 50% of the Fees is payable by the Client if the Client or Client participant cancels after the Client or Client participant has been set up by Future Leadership to complete the assessment electronically;
iv) For e-Learning:
- A) 50% of the Fees is payable by the Client if the Client cancels before web links are sent to log into the e-Learning platform; and
- B) 100% of the Fees is payable by the Client if the Client cancels after web links are sent to log into the e-Learning platform.
7. Intellectual property
a) The parties agree that Future Leadership owns, and will retain ownership of all Materials used, referenced or developed by Future Leadership in the course of providing the Services and/or the Deliverables (Future Leadership Materials), including all Intellectual Property Rights in Future Leadership Materials.
b) Subject to clause 7(c), the Client must not use, publish, sell, exploit, lease or otherwise provide to a third party any Future Leadership Materials without the prior written consent of Future Leadership.
c) Subject to the payment by the Client of all Fees as and when they are due, Future Leadership grants to the Client a non-transferable, nonexclusive, non-sub licensable, royalty-free and revocable Australia wide licence during the Engagement to copy any Future Leadership Materials solely for the Client’s own internal business or personal
d) Upon termination or expiry of the Engagement, the Client must immediately return to Future Leadership all Future Leadership Materials in its possession or control, unless otherwise agreed with Future Leadership.
e) Where the Client is an entity, the Client grants Future Leadership a perpetual, irrevocable, royalty free and non-exclusive licence to use the Client’s trademarks (whether registered or unregistered) and any other Intellectual Property Rights of the Client in connection with any Developed Material for the duration of the Engagement.
f) Except as provided in clause 7(e), Future Leadership must not use the Client’s trademarks or any other Intellectual Property Rights of the Client without the prior written consent of the Client.
g) The Client hereby grants to Future Leadership an nonexclusive, non-transferable, royalty-free and revocable licence during the Engagement to use the Developed Materials for the duration of the Engagement.
8. Confidentiality
a) In respect of Confidential Information, each Receiving Party must:
i) maintain the confidential nature of the Confidential Information; and
ii) not disclose or otherwise provide the Confidential Information to anyone, except under clause 8(b) or with the prior written consent of the Disclosing Party.
b) A Receiving Party may disclose Confidential Information to an Authorised Person, provided that:
i) the Authorised Person has a need to know and then only to the extent that the Authorised Person has a need to know; and
ii) before disclosure, the Receiving Party has made the Authorised Person fully aware of the confidential nature of the Confidential Information and the terms of this clause 8.
c) Despite clause 8(a), a Receiving Party may use or disclose Confidential Information:
i) to the extent necessary to comply with any law, binding directive of a regulator or a court order; or
ii) to obtain professional advice in relation to matters arising under or in connection with these Supply Terms,
provided that the Receiving Party must give the Disclosing Party reasonable prior notice of any proposed disclosure of Confidential Information including the form and content of the disclosure to be made.
d) If the Receiving Party discloses Confidential Information to any person, including an Authorised Person, the Receiving Party must ensure that the person receiving the Confidential Information:
i) maintains its confidential nature and complies with the terms of this clause 8 as if that person were the Receiving Party; and
ii) does not do or omit to do anything that, if done by the Receiving Party, would constitute a breach of its obligations of confidence under this clause 8.
8. Privacy
a) Future Leadership complies with the Privacy Laws.
b) Future Leadership’s privacy policy, which can be found on Future Leadership’s website, details how Future Leadership collects, stores, discloses and uses personal information in the provision of the Services and/or the Deliverables.
c) If the Client does not consent to Future Leadership’s collection, storage, use or disclosure of Personal Information, the Client should contact its Future Leadership contact person, or Future Leadership’s privacy officer at [email protected]. A failure by the Client to provide certain Personal Information to Future Leadership may affect Future Leadership’s ability to provide the Services and/or the Deliverables.
d) The Client warrants that where the Client discloses to Future Leadership Personal Information about the Client’s employees or other individuals, the disclosure is for a purpose related to Future Leadership’s provision of the Services and/or the Deliverables in accordance with these Supply Terms, and the Client has obtained any and all necessary consents for such disclosure and use, in accordance with the Privacy Act, including consents for the Personal Information to be disclosed to and used by Future Leadership.
e) Without limiting the foregoing, the Client indemnifies and holds Future Leadership harmless in relation to any loss or damage suffered or sustained by Future Leadership as a result of a Claim being made against Future Leadership that it has interfered with the privacy of any individual in circumstances where the Client was responsible for obtaining all necessary consents from the relevant individual for disclosure to and use by Future Leadership of the individual’s Personal Information.
10. Occupational health and safety
The Client must (without limiting the Client’s other obligations under these Supply Terms):
a) comply with all applicable work health and safety legislation and regulatory requirements which apply to any work to be performed by Future Leadership Personnel at the Client Site pursuant to these Supply Terms;
b) ensure that it consults, cooperates and coordinates with Future Leadership and Future Leadership Personnel such that the provision of the Services and/or the Deliverables and work to be performed at the Client Site under these Supply Terms is executed and performed in a safe manner;
c) if requested by FL, provide Future Leadership copies of its work health and safety management plans and processes, any other applicable policies and records of any training regarding workplace health and safety, incident notification and bullying, and such other details of the arrangements it has in place to meet the requirements set out in this clause;
d) immediately notify Future Leadership of any and all work health and safety incidents which relate to the provision of the Services and/or the Deliverables, including any incidents which involve any Future Leadership Personnel; and
e) fully cooperate with any investigation conducted by Future Leadership into any incident which relates to the provision of the Services and/or the Deliverables and which is required to be notified to any authority under work health and safety legislation.
11. Termination
11.1 Termination for convenience
a) Future Leadership may terminate these Supply Terms with the Client at any time and without cause by giving not less than 30 days’ prior written notice to the Client.
11.2 Immediate termination
a) Without limiting the other termination rights of Future Leadership under these Supply Terms or at law, Future Leadership may terminate these Supply Terms with the Client immediately by notice to the Client if:
i) the Client commits a material breach of these Supply Terms which is not remediable;
ii) the Client commits a material breach of these Supply Terms which is capable of remedy and is not remedied by the Client within 7 days after being required by notice to do so;
iii) the Client materially breaches these Supply Terms two or more times, regardless of whether such breaches are remedied;
iv) there is a change in Control of the Client; or
v) the Client is subject to an Insolvency Event.
11.3 Consequences of termination
a) Subject to this clause 11.3 , clause 12 and clause 13 and as otherwise provided in these Supply Terms, following the termination of these Supply Terms with the Client and in addition to any other rights or remedies provided by law:
i) each party is released from its obligations to further perform these Supply Terms;
ii) each party retains any rights, obligations, entitlements or remedies before termination or expiry;
iii) each party retains the rights it had against the other party in respect of any past breach, in addition to any other rights provided by law and any rights at law or otherwise consequential upon termination of these Supply Terms are in no way limited or derogated from by this clause 11.3;
iv) the Client must immediately return all Confidential Information of FL, Future Leadership Materials and Future Leadership Resources in the possession, custody or control of the Client; and
v) subject to the prior payment by the Client of all Fees as and when due, Future Leadership will provide copies of the Deliverables or work in progress in respect of the Deliverables in such format as the Client reasonably requests (including in an editable format).
12. Payments following termination
a) Future Leadership retains all Fees and Charges paid by the Client in relation to the Engagement where these Supply Terms are terminated, unless otherwise agreed in writing between the parties.
b) The Client must pay the Fees payable under these Supply Terms for the Services and/or the Deliverables provided during the Engagement up to the date of termination, including work in progress. To the extent the provision of work in progress or provisional results causes Future Leadership to incur additional costs, Future Leadership will invoice the Client for these additional costs and its provision of the work in progress or provisional results will be subject to receipt of payment for those costs from the Client.
c) Future Leadership may invoice the Client a reasonable sum for work performed in connection with the Engagement where:
i) work has been performed in connection with the Engagement following provision of the most recent invoice; or
ii) work has been performed outside of or in addition to the scope of the Engagement and no Fees have previously been charged for that work.
d) Except as expressly provided for in this clause 12, Future Leadership will not be liable for, or in connection with, any Claim (and the Client will not be entitled to make any Claim) arising out of or in connection with termination of these Supply Terms and the Client agrees to:
i) release and forever discharge Future Leadership from and against all Claims which the Client may have had, may now have or may have had at any future time against FL; and
ii) waives all rights that the Client has, or may have had, to bring a Claim against Future Leadership.
13. Subcontracting
a) Future Leadership may subcontract any of its rights or obligations under these Supply Terms.
b) To the extent that Future Leadership subcontracts any of its obligations under these Supply Terms to a third party, Future Leadership will remain liable to the Client for each act and omission of that third party (including its personnel) in connection with the performance of such obligations as if it were an act or omission of Future Leadership.
14. Survival of clauses
The parties rights and obligations under clauses 6, 8, 9, 11, 12, 13 and 15 of these Supply Terms will continue notwithstanding the termination of these Supply Terms.
15. Exclusion and limit of liability
a) To the maximum extent permitted by law, Future Leadership gives no warranty or guarantee and makes no representation of any kind, whether express or implied, and excludes all express or implied warranties, guarantees, terms and conditions under statute, general law or in trade usage.
b) Where any warranty, guarantee, term or condition is implied into these Supply Terms by any statutory provision and that statutory provision prevents or prohibits the exclusion or modification of the warranty, guarantee, term or condition, Future Leadership’s liability to the Client in respect of any non-excludable warranty, guarantee, term or condition is limited at Future Leadership’s option to the maximum extent possible to:
i) the re-supply of the Services and/or the Deliverables; or
ii) payment of the Client’s costs associated with having the Services and/or the Deliverables supplied again.
c) Future Leadership’s total liability to the Client under these Supply Terms is limited to an amount equal to the total Fees and Charges paid by the Client in connection with the Engagement in the 6-month period to the date of any Claim by the Client.
d) Neither party shall be liable to the other party for any consequential, incidental, indirect or punitive or special damages under any circumstances arising out of or in connection with the Engagement or these Supply Terms.
16. Claims
The Client must immediately inform Future Leadership if it becomes aware of any Claim against the Client or Future Leadership in connection with the provision of the Services and/or the Deliverables during the Engagement.
17. General
a) These Supply Terms are the entire agreement between the parties about their subject matter and supersede all previous communications, representations or agreements between the parties on the subject matter.
b) If any provision of these Supply Terms is void, voidable by a party, invalid, unenforceable or illegal it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from these Supply Terms without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of these Supply Terms.
c) The Client may not assign, novate or create any interest in its rights under these Supply Terms without the prior written consent of Future Leadership. The Client acknowledges and agrees that Future Leadership may assign any right or novate any obligation under these Supply Terms to any related body corporate of Future Leadership without the prior written consent of the Client but will not assign any right under these Supply Terms to any third party without the Client’s prior written consent (which will not be unreasonably withheld or delayed).
d) These Supply Terms may only be altered or varied in writing signed by each party.
e) Each party must sign, execute and deliver any document and perform any other act that is necessary or desirable to give full effect to these Supply Terms.
f) No failure to exercise or delay in exercising any right or to require performance of any obligation given by or under these Supply Terms to a party constitutes a waiver of that party’s right to claim damages for breach of that obligation and the party may still exercise that right in the future. No single or partial exercise of any right precludes any other or further exercise of that or any other right. Any waiver of any provision of these Supply Terms or a right created under them must be in writing signed by the party giving the waiver and is only effective to the extent set out in that written waiver.
g) These Supply Terms are governed by the law in force in the State of Victoria and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of courts of the State of Victoria and the Commonwealth of Australia including the Federal Court and any courts that may hear appeals from those courts about any proceedings in connection with these Supply Terms.
h) Each party will pay its own legal and other costs and expenses in connection with the preparation, negotiation and execution of these Supply Terms.
i) These Supply Terms may be executed in any number of counterparts (electronic or otherwise). All counterparts, taken together, constitute one instrument, which is binding on the parties on the exchange of executed counterparts.
j) A copy of an original executed counterpart received by email must be treated as an original counterpart, is sufficient evidence of the execution of the original and may be produced in evidence for all purposes in place of the original.
