PURPOSE, SCOPE AND OUTPUT OF THE ENGAGEMENT
This Consulting Agreement, is effective from the date of the signed proposal (this "Agreement"), and is made and entered into between you (the "Client") and Clarity Street (the "Consultant").
ENGAGEMENT
1. The Client engages Clarity Street for a project by them signing or otherwise showing their acceptance of an Engagement Letter, setting out:
a. the Services to be provided in connection with that project;
b. the Deliverables (if any);
c. the Milestones (if any);
d. the Deadline for each Milestone and for the project (if any);
e. the Fee for the project or the rate based on which the Fee for the project may be calculated;
f. the instalments of that Fee for each Milestone or payment period (if any);
g. insurance required by the Client, including the per-claim cap and the annual aggregate claim cap; and
h. any other features relevant to the project referred to as the Commercial Terms.
2. Signing or otherwise indicating its acceptance of an Engagement Letter creates a contract between the Client and Clarity Street, under which the client must accept delivery of the project specified in that Engagement Letter.
3. The Client warrants it does not rely upon any representation made by Clarity Street on or in connection with the project, save those set out in writing by the Client before signing the Engagement Letter for that project.
VARYING THE COMMERCIAL TERMS ON THE PROJECT
4. Before the completion of the project, the Client may seek to vary any of the Commercial Terms for that project by providing five (5) Business Days' notice in writing to Clarity Street (Variation Notice), setting out the following:
a. the changes to the Commercial Terms;
b. any deleted Commercial Terms;
c. any additional Commercial Terms; and
d. the Deadlines that the Client wishes to apply to the varied Commercial Terms.
5. A Replacement Engagement Letter applies to the project, and the previous Engagement Letter ceases to apply on the date both parties sign the Replacement Engagement Letter.
6. The Client acknowledges that a Replacement Engagement Letter may include deadlines different from those requested in the Variation Notice, and the Fees or the rates based on which we may calculate the Fees may differ from the original Engagement Letter.
STAFFING REQUIREMENTS
7. Clarity Street warrants that each person on the project is employed by it or an Affiliate of it and that person has the training, qualifications, experience, and skills necessary to perform those services.
8. Clarity Street agrees to provide supervision, as appropriate, of all people engaged in working on the project.
UNDERTAKING PROJECTS
9. The Client must provide any information, documents, and other material Clarity Street requests for the project.
10. Clarity Street must use its best endeavours to complete each Milestone by its deadline (if any).
11. Clarity Street must use its best endeavours to complete the project by its deadline.
12. On completion of the project, Clarity Street must notify the Client in writing to that effect.
USE OF PREMISES
13. The Client must, where necessary, procure or provide access to any premises:
a. required for the project; or
b. where Clarity Street requests that access, the extent of that access being adequate for Clarity Street to undertake that project and perform all the Services required to do so.
14. Clarity Street must use its reasonable endeavours to avoid causing any damage to the following when undertaking the project for the Client:
a. any Premises at which or in connection with which we perform Services;
b. any fixtures and fittings within those premises;
c. any plant and equipment in or around those premises; and
d. any other property or chattels, whether owned by the Client or any other person.
15. Without limiting clause 13, Clarity Street must comply with the following at any Premises at which or in connection with which Services are performed:
a. any policies, guidelines, or directions relevant to the use, access to, or conduct within those Premises published or provided by the Client; and
b. unless inconsistent with the policies, guidelines or directions provided for in clause 15(a), any direction provided by the Client.
16. Clarity Street must not engage in any act or omission in connection with its occupation or use of or presence in the Premises that causes or is likely to cause:
a. an obstruction or hindrance to the Client's use of the Premises or the conduct of the Client's business; or
b. an adverse effect on the Client's business or reputation.
17. Clarity Street is primarily a digital online business and all communication will be primarily via electronic and online means. Should a client request an in-person meeting or in-person training, additional fees may apply.
FEES & PAYMENT OPTIONS
18. The Client must pay the fees stated in the Engagement Letter or fees calculated using the rates specified in this Engagement Letter. The scope of our engagement is the preparation and completion of matters detailed in this agreement. Any agreed fee applies only to services and advice provided within the scope of our engagement. However, if the situation arises during this engagement where we discover additional matters not apparent at the time of preparing this fee proposal we will cease work, contact you and agree to an amended fee for those additional services.
19. We have requested your payment details below to streamline our billing process. We require payment details to be provided prior to beginning the agreed services in our engagement with full payment in advance (options required for on completion and within 7 days of completion) via direct debit, or credit card upon request. We accept Visa & Mastercard if credit card payment is requested and accepted.
DISBURSEMENTS & SUBSCRIPTIONS
20. Clarity Street is responsible for its standard business costs, which include local telephone calls, postage (other than courier costs), stationery costs and the cost of equipment and software that is not project-specific.
21. The Client must reimburse Clarity Street for any Disbursements Clarity Street incurs (and regarding which Clarity Street complies with clause 21) in connection with the project. Disbursements will be charged for the cost of legal expenses, couriers, research data, online costs, search fees, registration fees and any statutory fee incurred on your behalf.
22. The Client's obligation under clause 20 to pay any Disbursement more than $500 is subject to Clarity Street receiving the Client's consent in writing to it incurring that Disbursement.
23. For the avoidance of doubt, all Disbursements must be charged at cost.
24. Disbursements will be included on the invoice provided regarding the project.
25. Where relevant, your software subscriptions will be charged separately and in addition to any other service provided. You will always be the Subscriber for your software services, however in the unlikely event that Clarity Street is required to be the provider, we will always give you full access to your subscription and transfer ownership upon completion of the initial implementation.
GOODS AND SERVICES TAX
26. Subject to the provision of a tax invoice that complies with the law, a party, must reimburse the other party for any GST obligation that the party incurs.
27. A party's obligation under clause 24 applies if the other party is registered for GST and, if requested, provides any document that verifies its registration for GST.
28. The Client must notify Clarity Street in writing immediately it ceases to be registered for GST.
29. The GST Obligation is the GST payable on any taxable supply made in connection with this Agreement, plus any fines, penalties, interest, and other charges incurred because of overdue payment or other default by the GST Recipient under this Agreement.
30. A party that provides a taxable supply in connection with this Agreement must do all things requested for the other party to obtain any input tax credit to which it is entitled to the resulting GST Obligation.
31. If a party is required to pay, reimburse, or indemnify another party for any cost, expense, or other amounts that the other party incurs or will incur in connection with this Agreement, that amount will be reduced by any part thereof for which the other party (or a representative member if this is not the other party) can claim an input tax credit.
SERVICE WARRANTIES AND REQUIREMENTS
32. Clarity Street warrants that Services are provided with all due care and skill that a reasonable person would expect from a business with the experience Clarity Street represents in public, in its advertising or directly to the Client that it possesses.
33. Clarity Street must not engage in any activity in connection with the project likely to adversely affect the Client's reputation or fail to engage in any act, where failing to do so is expected to affect the Client's reputation adversely.
34. Clarity Street must provide all Services in accordance with the law.
TERMINATION
35. This Agreement terminates on the completion of the project by Clarity Street.
36. Either party may terminate this Agreement if the other party is in breach of an obligation set out in this Agreement and fails to remedy that breach within thirty (30) days of the date of any notice to that effect.
37. Either party may terminate this Agreement by notice in writing with immediate effect if the other party experiences an Insolvency Event.
CONSEQUENCES OF TERMINATION
38. On termination of this Agreement, the project, if incomplete at the date of termination, is cancelled:
a. unless and to the extent the Client notifies Clarity Street to the contrary; or
b. if termination is effected because of a breach by Clarity Street; otherwise, the terms and conditions of this Agreement continue to apply to that project until it is completed.
39. Neither party incurs any liability to the other because of the termination of this Agreement if termination is pursuant to the terms of this Agreement.
40. Termination of this Agreement is without prejudice to any accrued rights or liabilities of a party. It does not excuse any party from a breach of this Agreement occurring before termination or expiration or excuse any party from paying any amount which is or becomes due and payable to the other party in respect of the performance by the other party before termination.
41. Upon the expiry or termination of this Agreement, each party must return or destroy (in the disclosing party's discretion, and to the extent lawfully allowable) all materials (including any copies) that in any way includes or refers to the Confidential Information of the other party, and, where applicable, delete any such Confidential Information stored on any computer system of the receiving party.
42. The receiving party, if requested by the disclosing party, must state on oath that the receiving party has satisfied its obligations under clause 39.
43. The receiving party must ensure that any person to which Confidential Information is disclosed returns, destroys, or deletes (as the case may be) that Confidential Information in accordance with clause 39, as if the reference in that clause to the receiving party were to that person.
TIME RECORDING AND REPORTING
44. Where the Fee for the project is calculated by reference to a rate, Clarity Street must maintain records of the time spent by Clarity Street on that project, identifying:
a. the activity undertaken, recording all relevant details of that activity; and
b. the person involved, identifying the tasks each person completed.
45. There is a presumption that any time records are maintained by Clarity Street in connection with the project are correct, a presumption that is rebuttable only by probative evidence to the contrary, in respect of which the Client has the burden of proof.
46. Clarity Street agrees to provide to the Client in electronic form any time records maintained by Clarity Street in connection with any outside of scope work should the Client request.
INTELLECTUAL PROPERTY
47. Clarity Street warrants that it owns all Foreground IP Rights and either owns all Background IP Rights in the Deliverables or has a right to use and exploit those Background IP Rights, the latter on terms that include:
a. a term of not less than ten (10) years; and
b. the ability to sub-license the said rights.
48. Clarity Street grants the Client a non-exclusive, irrevocable, and royalty-free licence to use the IP Rights in the Deliverables provided to it in connection with the project to the extent necessary for the Client to achieve the purpose for which the project is commissioned.
49. Clarity Street warrants to the Client that none of the Deliverables nor the use of the Deliverables infringes on any person's IP Rights. Any rights assigned to Clarity Street by operation of clauses 47 or 50 are excluded from the warranty provided by this clause 49.
50. The Client assigns to Clarity Street any Foreground IP Rights in each Deliverable (if any), which Foreground IP Rights vest in the Client, may vest in the Client, which have vested in the Client or that the Client otherwise owns.
51. The Client grants to Clarity Street a non-exclusive, irrevocable, and royalty-free licence to use the Background IP Rights in each Deliverable that it owns or has a right to use (if any), as far as a licence is required for Clarity Street to make use of that Deliverable.
52. The Client must procure from each person who is an Author of any Work constituting a Deliverable or constituting a part of a Deliverable a written unconditional and irrevocable waiver of all Moral Rights that person may have in the Deliverables, authorising Clarity Street and any other person authorised by Clarity Street to exercise all acts comprised in the copyright in the Deliverables.
53. The Client must procure (at its cost) any independent contractor engaged by it that owns any IP Rights in a Deliverable to comply with clauses 47, 48 and 49 as if the reference to the Client were to that contractor.
CONFIDENTIALITY
54. Any Confidential Information of a Party disclosed to or otherwise obtained by the other party (or an Affiliate of that other party) under or in connection with this Agreement must:
a. not be used by the receiving party for any purpose other than exploiting a right or discharging an obligation under this Agreement; and
b. be kept confidential and not disclosed by the receiving party, save to the extent permitted under clause 54.
55. Confidential Information may be disclosed if the disclosure is:
a. required by law (including any rule of a stock exchange); or
b. to an Affiliate of the receiving party.
56. Disclosure under clause 54(a) must not be made until the party required by law to make disclosure gives the other party as much prior notice of the requirement for and contents of the disclosure as is practicable without infringing the legal obligation to disclose that information.
57. Disclosure under clause 54(b) must not be made save for Confidential Information that the Affiliate requires for the purpose of the receiving party discharging its obligations under this Agreement and only after all reasonable and usual steps in the circumstances are taken to protect against the misuse or unauthorised disclosure of the Confidential Information by the Affiliate, which includes:
a. advising the Affiliate of the contents of clauses 54 to 60 (inclusive); and
b. on request, obtaining from the Affiliate an undertaking in writing to the disclosing party to be bound by the terms of clauses 54 to 60 (inclusive).
58. Any failure by a person to which a receiving party discloses Confidential Information to comply with the terms of clauses 54 to 60 (inclusive) (as if any reference to the receiving party were to that person) constitutes a breach of this Agreement by the receiving party.
59. Each party acknowledges that monetary damages are not an adequate remedy for a breach of clauses 54 to 60 (inclusive).
60. A party may seek specific performance or an injunction as a remedy for such a breach or where such a breach is anticipated, in addition to any other remedies available at law or in equity.
Insurance
61. Clarity Street must, at its own cost, obtain and for the term of the project maintain professional indemnity insurance, permitting claims of not less than $1 million, in the aggregate over a year of no less than $1 million.
62. The Client must at its cost obtain and for the term of the project maintain each insurance policy specified in the Engagement Letter, each policy permitting claims of not less than the sum specified in that Engagement Letter (or directed by the Client), in the aggregate over a year and per claim.
63. Each party must provide to the other a Certificate of Currency for the insurance required by clauses 61 and 62 immediately on renewing that insurance and otherwise on demand.
INDEMNITIES AND LIABILITY CAP
64. The Client indemnifies and holds Clarity Street and its officers, directors, employees, agents, and representatives harmless from and against any Losses arising out of any Claim resulting from:
a. any negligent or intentionally wrongful act or omission of the Client or its employees or other representatives; and
b. Clarity Street's actions or omissions as far as those acts or omissions are consistent with the Client's written instructions to Clarity Street.
65. Clarity Street must use reasonable endeavours to mitigate any losses regarding which it seeks indemnification under clause 61, the amount the Client must pay to Clarity Street under clause 61 being reduced by an amount equal to the Losses incurred because of Clarity Street failing to comply with this clause 63.
66. For the purposes of clause 64, Clarity Street enters this Agreement on its own behalf and as agent or, and trustee of, its officers, directors, employees, agents, and representatives.
67. To the extent permitted by law, Clarity Street's total liability to the Client for any Claim and, if permitted by law, all other Claims arising in the previous twelve (12) months (Claim Period) is the lesser of:
a. either of:
(i) resupplying to the Client the Services provided for the project the subject of each Claim; or
(ii) paying the Client the cost of having those services provided by another service provider; and
b. the amount equal to the Fees payable by the Client to Clarity Street in the Claim Period.
68. Save for the limitation of liability provided for in clause 67, the Client waives all rights it has or may have against Clarity Street under or in connection with this Agreement and otherwise regarding the project, including any claim for negligence or any other tort.
PRIVACY
69. Clarity Street may collect, use, and disclose personal information about the Client (or if the Client is a corporate entity, about its officer, employees, or representatives). Clarity Street collects this personal information directly from Client and may also collect personal information passively through its website.
70. Clarity Street collects the Client's personal information to affect its internal business purposes, for marketing and promotional purposes, to provide the Services to the Client and comply with legal and regulatory requirements. If the personal information the Client provides is incomplete or inaccurate, any obligation on Clarity Street to provide Services is suspended where Services cannot be provided without complete or accurate information.
71. Clarity Street may disclose personal information about the Client to any service provider that assists Clarity Street in operating its business in connection with the provision of Services to the Client.
72. Any personal information (including sensitive information) collected by Clarity Street will be treated in accordance with Clarity Street's Privacy Policy, which can be found on Clarity Street's website (www.claritystreet.com.au/privacypolicy). Clarity Street's Privacy Policy details how Clarity Street uses, stores, and discloses personal information. The Privacy Policy also sets out how the Client can access and ask for correction of the Client's personal information, whether personal information will be sent overseas and how to complain about privacy-related matters.
73. The Client agrees to Clarity Street collecting the Client's personal information in accordance with the terms of Clarity Street's Privacy Policy.
74. The Client must notify all its employees, contractors and/or agents who provide Clarity Street with their personal information of Clarity Street's practices and policies relating to the collection, use, disclosure, and storage of personal information.
75. The Client agrees that files, emails, and correspondence that contain sensitive information relating to their clients (TFNs, ABNs, and similar) will not be emailed to Clarity Street, but uploaded to a secure, password-protected cloud-storage folder provided by Clarity Street.
76. The Client unconditionally indemnifies Clarity Street for the Client's non-compliance with clauses 69 to 75 (inclusive).
77. If you have questions regarding Clarity Street's collection, use or disclosure of personal information or Clarity Street's Privacy Policy, please contact Amy Holdsworth at Level 8, Unit 805, 220 Collins Street, Melbourne VIC 3000, [email protected] or +61 437 101 152.
DATA PRIVACY
78. The analysis requires us to extract your data which may include your personal information (or that of another person, such as your clients or employees which you enter or upload into our products or services). Privacy is important to Clarity Street. And we know it's important to you. By accepting this proposal, you consent to us collecting and using your data. We collect and use your data so we can:
a. provide you with the products, services and support you've asked for;
b. respond to your enquiries or feedback;
c. customise and improve your experience; and
d. improve our products and services.
OWNERSHIP OF DOCUMENTS
79. We will prepare various working papers and notes consistent with our internal quality control system during our engagement. These working papers remain the property of our company and will be retained by us to support any future queries on work completed.
80. Original source records provided by you to us to assist in the completion of your work will be returned to you after each engagement.
81. Where appropriate, we may take copies to retain on your client file. The company has a policy of exploring a legal right of lien over any client documents in our possession in case of a dispute.
STORAGE OF DOCUMENTS
82. We use Cloud-Based Data Storage with servers located in Australia and overseas to house your documents and to facilitate the transfer of data files and other information from clients.
83. The providers of this storage have privacy policies that are consistent with the Australian Privacy Principles.
84. Accepting our services as part of this engagement agreement indicates your acceptance of the outsourced services, cloud-hosted software and outsourced data storage under the conditions outlined above.
85. You can find a copy of our complete Privacy Policy and any other information concerning the security of your personal information and data here: https://www.claritystreet.com.au/privacy-policy.html
OUTSOURCED SERVICES
86. From time to time, we may outsource Cloud Advisory and Other Services to various service providers, including Australian companies that have staff located overseas. These Service Providers are required to comply with Australian Privacy Principles in disclosing your personal information to any overseas recipients, including taking all reasonable steps to ensure that:
a. The overseas recipient does not breach the Australian Privacy Principles; or
b. The overseas recipient is subject to a law, or binding scheme, which has the effect of protecting the information in a way that, overall, is at least substantially like the way the Australian Privacy Principles protect the information.
87. Acceptance of our services in conjunction with this engagement document indicates your acceptance of the use of outsourced services as described.
88. No work will be outsourced overseas without your express consent or without first discussing this with you.
USE OF CLOUD COMPUTING SERVICES
89. We use Cloud Computing Software to manage, process and function our client's work and business operations.
90. All data is stored on servers hosted by third parties. The servers are in the United States but may be replicated in other locations. The parties that host these servers do not control and are not permitted to access your Personal Information except for the limited purpose of storing the information.
91. The suppliers of this software have privacy policies that are consistent with the Australian Privacy Principles.
PROJECT ROLLOUT
92. By signing this agreement, the Client agrees that they have conducted their Due Diligence concerning any software changes, and associated impact, to their practice this project will affect.
93. Clarity Street will implement our standard "best practice" configuration for each software application detailed in this proposal. Post-implementation Clarity Street will train your appointed team members on application settings and any required customisations. Should any settings be changed, or customisations made without consultation with Clarity Street, Clarity Street holds no responsibility for the correct functioning software, nor the data contained therein.
94. Clarity Street will work to ensure agreed rollout deadlines are met for the duration of the engagement and all attempts will be made to clearly communicate these deadlines and manage expectations. We will contact you as soon as possible if deadlines need to be moved due to unforeseen circumstances.
95. Clarity Street will notify you four weeks before the engagement completion date that four weeks are remaining of the project. Where Clarity Street is not at fault and the project completion is likely to pass its due date and you need to extend the project beyond the agreed due date, you will need to apply for a project extension. Approval for the extension is based on Clarity Street's availability and capacity to continue working on the project beyond the initial project end date. This application must be made at least ten business days before the end of the initial project end date.
If your extension application is approved, you will be granted an additional 30 days to complete the project with no additional fees. However, if the project extends beyond this grace period, the monthly consulting fees as per the engagement agreement will apply for each subsequent month. You will be charged a Monthly Extension Fee (MEF)+GST every month until completion and the sign-off has occurred, chargeable in complete months on the first day of each month. This MEF is calculated: Total Engagement Cost / Number of Months of Engagement. For example: $30,000 Total Engagement / 6-month engagement = $5,000 MEF
96. During your engagement with Clarity Street, we will require access to all relevant software. Where additional software licences are required for us to complete our agreed services, the cost of these additional licences will be covered by you.
97. Upon termination and completion of the project, Clarity Street will request the complete removal of all Clarity Street user access from all software. Should you fail to action this request, Clarity Street will not be held responsible in the event of a data breach, loss of data or business expense incurred.
98. Clarity Street will make every effort to record all online training sessions specific to your business and provide access to these recordings post each session. During your project, if one of your employees leave, you gain new employees, or employees change roles within your team, the training of the relevant software along with processes and procedures is your responsibility, not that of Clarity Street. Clarity Street can be engaged for additional training as required under a separate engagement or amendment to this engagement.
99. By signing this agreement, the Client agrees that any Client requested amendments to this agreement, including software substitutions, are entirely at the discretion of Clarity Street and Clarity Street reserve the right to decline any amendment requests.
99A. When Clarity Street is engaged to fix errors of any kind in any software (for example software set up, client data, missing or incorrect client data), Clarity Street will perform this action once only. Should any staff member, current or past, make any changes that override fixes that Clarity Street has completed or create client data that require fixes, additional or repeat fixes are not part of this engagement and will be charged separately.
99B. All project clients will be required to maintain a Clarity Campus subscription for the duration of their project, as all primary training on applications is provided via Campus. This subscription is ongoing after the completion of the project. It can be terminated anytime after the project end date with 30 days notice. Please click on this link for the most current Terms. https://campus.claritystreet.com.au/terms
COMMUNICATION
100. Clarity Street is primarily an online business, so our primary means of communication and training will be online. The client is expected to use a communication tool like Microsoft Teams, Zoom or similar for online meetings and training.
101. Clarity Street will primarily communicate via email; however, additional methods of secure online forms, checklists, and similar will be used as part of the project.
ELECTRONIC COMMUNICATIONS
102. We will communicate with you electronically, including sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003).
103. You consent to us sending Electronic Communications to you along with agreeing to be included in our e-newsletter subscription and important topical broadcasts as they arise from time to time.
104. If you wish to unsubscribe from Clarity Street e-Newsletters, please follow the unsubscribe process by selecting 'unsubscribe' at the bottom of the email content.
105. Electronically transmitted information cannot be guaranteed to be secure or virus or error-free, and consequently, such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use.
106. We will not be liable to you for any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you.
NOTICES
107. Any notice provided under this Agreement must be sent by certified or registered mail, email or facsimile or delivered by hand to the receiving party at the address set out in the Contract Details or the most recent Engagement Letter.
108. All notices provided under this Agreement is deemed to have been duly given or made:
a. five (5) Business Days after being deposited in the mail with postage prepaid;
b. if delivered by facsimile when the activity report confirms successful transmission;
c. if delivered by email, at the time the email is sent, evidenced by an electronic receipt; or
d. on delivery, if delivered by hand, evidenced by an affidavit of service.
CONTRACT DOCUMENTATION
109. If any document constituting part of the Agreement between the parties is inconsistent with any other document constituting part of that Agreement, the document that precedes the other in the following list prevails to the extent of that inconsistency:
a. the General Terms and the Contract Details;
b. the Engagement Letter; and
c. any other attachments, schedules, and Annexures.
GENERAL PROVISIONS
110. Clarity Street is not an agent of the Client and must not purport to act in that capacity unless the Client provides a written direction to Clarity Street to that effect.
111. Save where stated to the contrary, nothing in this Agreement is intended or will be construed as constituting an employment relationship, a partnership, agency, or joint venture relationship between the parties.
112. The parties are independent contractors.
113. Clarity Street has a right of set-off in respect of any amounts payable by it to the Client.
114. Each party must do everything necessary or desirable to enable the other party to observe and perform its covenants and obligations under this Agreement.
115. Each party agrees to act in good faith towards the other party in respect of this Agreement.
116. This Agreement supersedes and terminates all prior negotiations, representations, correspondence, and agreements between the Client and Clarity Street.
117. This Agreement cannot be amended, modified, or supplemented, except in writing duly signed by the parties.
118. This Agreement cannot be assigned by either the Client or Clarity Street without the prior written consent of the other, which consent must not be unreasonably withheld or its provision unreasonably delayed.
119. This Agreement is binding upon, and inures to the benefit of, the parties, their successors and permitted assigns.
120. If a provision of this Agreement is invalid or unenforceable in a jurisdiction:
a. it is to be read down or (if reading it down sufficiently is not possible) severed in that jurisdiction
to the extent of the invalidity or unenforceability; and
b. it does not affect the validity or enforceability of:
(i) that provision in another jurisdiction; or
(ii) the remaining provisions of this Agreement.
121. The parties agree to execute, acknowledge, and deliver such further instruments and take all such other incidental acts (including executing all documents and giving all notices) as may be reasonably necessary or appropriate to carry out the purpose and intent of this Agreement.
122. A waiver of a provision or of a right arising under this Agreement can only be given or granted by a party in writing and will otherwise operate only if in writing.
123. A waiver is effective only in the specific instance, and for the specific purpose it is given.
124. A single or partial exercise of a right by a party does not preclude another or further exercise or attempted exercise of that right or the exercise of another right.
125. Failure by a party to exercise or delay exercising a right does not prevent its exercise or operate as a waiver.
126. Any Affected Obligation is suspended to the extent the event of Force Majeure prevents, restricts, or inhibits the performance or observance of that obligation.
127. Where an Event of Force Majeure continues for an uninterrupted period of six (6) months or more, the party, other than the Affected Party, may terminate this Agreement by thirty (30) days' notice in writing, and such termination will be without prejudice to any other rights of the parties.
128. This Agreement is governed by the laws of Victoria.
129. The Courts of Victoria have exclusive jurisdiction to determine any matter, issue or dispute that arises out of, or that is otherwise connected with, this Agreement.
130. For the purposes of clause 128, each party irrevocably and unconditionally submits to the jurisdiction of the Courts of Victoria.
131. All clauses that purport to have the effect or could have effect after the expiration or termination of this Agreement apply after this Agreement terminates or expires.
132. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
GLOSSARY
Unless the context requires otherwise:
133. Affected Obligation means an obligation under this Agreement (other than the obligation to pay money), the performance or observance of which is prevented or materially restricted or materially inhibited by or as a result of an Event of Force Majeure;
134. Affiliate means the same as related body corporate under the Corporations Act 2001 (Cth);
135. Author has the same meaning as in the Copyright Act 1968 (Cth);
136. Background IP Rights means any IP Rights (other than Foreground IP Rights) subsisting in, or otherwise associated with, or required for the use of, a Deliverable;
137. BusinessDay means a day that is not a Saturday, Sunday or a public holiday or bank holiday in Melbourne, Victoria;
138. Claim means any claim, allegation, suit, action, demand, cause of action or proceeding (including any prosecution by any statutory authority, in which an authority seeks a pecuniary penalty), irrespective of:
a. when it arises;
b. whether it is actual or contingent; or
c. whether it is at law (including under contract or tort), in equity or under statute;
139. Commercial Terms has the meaning ascribed to that term in clause 1;
140. Confidential Information means:
a. the terms of this Agreement;
b. the Commercial Terms of the project;
c. the details of any discussions Clarity Street and the Client have or correspondence in which Clarity Street and the Client engage concerning the Fees;
d. the Deliverables;
e. Clarity Street's methodology;
f. the Client's commercial plans and strategies; and
g. any other information that, by its nature or the circumstances surrounding its disclosure or discovery, is or could be expected to be regarded as confidential to the Disclosing Party,
any of its Affiliates or any third party with whose consent or approval the disclosing Party or any of its Affiliates uses that information,
but does not include:
h. any information that is in or enters the public domain, other than because of a breach of this Agreement;
i. information that the Receiving Party can prove by written documentation was already known to it at the time of disclosure;
j. information that the Receiving Party acquires from a third party entitled to disclose it on a non-confidential basis; and
k. information independently developed by the Receiving Party or its Affiliates without reference to the Disclosing Party's Confidential Information, as evidenced by its written records;
141. Contract Details means the information set out in the document headed Contract Details;
142. Deadline means the date by which a Milestone or the project must be completed, as set out in an Engagement Letter;
143. Deliverable means any document or material created for the purposes of the project or that is otherwise used for that project or provided to the Client in connection with that project;
144. Disbursement means any cost or expense that:
a. Clarity Street incurs expressly in connection with the project, and
b. is not and cannot reasonably be characterised as a business expense of a business such as Clarity Street;
145. Disclosing Party means the party that discloses Confidential Information or whose Confidential Information is otherwise obtained by the Receiving Party;
146. Engagement Letter means a document complying with clause 1, a term that includes any Replacement Engagement Letter.
147. Event of Force Majeure means any event or circumstances beyond a party's reasonable control, including, but not limited to, an act of God, any industrial dispute (including a lockout, labour disturbance or stoppage), and an administrative or executive order, regulation or act of any government or government instrumentality;
148. Fee means the sum or sums set out in an Engagement Letter or the sum calculated by reference to the formula and the rates set out in an Engagement Letter;
149. Foreground IP Rights means IP Rights subsisting in or otherwise associated with any Services created solely for the project;
150. GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
151. GST Obligation has the meaning ascribed to that term in clause 119;
152. GST Recipient means the party that receives a taxable supply, as that term is understood in the GST Act;
153. IP Rights means any rights subsisting in or otherwise associated with Intellectual Property, which term includes Foreground IP Rights and Background IP Rights;
154. Insolvency Event means, in respect of a party, the happening of one or more of the following events:
a. except for the purpose of a solvent reconstruction or amalgamation that has the prior written consent of the other party:
(i) an order is made that it be wound up or that a Controller (as defined in the Corporations Act 2001 (Cth)) be appointed to it, or any of its assets; or(ii) a resolution that it be wound up is passed;
b. a trustee in bankruptcy, liquidator, provisional liquidator, Controller (as defined in the Corporations Act 2001 (Cth)) or any similar official is appointed to, or takes possession or control of,
all or any of its assets or undertaking;
c. an administrator is appointed to it;(b) a trustee in bankruptcy, liquidator, provisional liquidator, Controller (as defined in the Corporations Act 2001 (Cth)) or any similar official is appointed to or takes possession or control of, all or any of its assets or undertaking; ( c ) an administrator is appointed to it;
d. it enters or resolves to enter, an arrangement, compromise, or composition with any of, or any class of, its creditors or shareholders, or an assignment for the benefit of any of, or any class of, its creditors, or process is filed in a court seeking approval of any such arrangement, compromise, or composition;
e. a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors is proposed or effected;
f. it is unable to pay its debts as and when they fall due, or it is presumed to be insolvent under any applicable law;
g. because of the operation of section 459F(1) of the Corporations Act 2001 (Cth), it is taken to have failed to comply with a statutory demand;
h. it stops, suspends, or threatens to stop or suspend:
(i) the payment of all or a class of its debts; or
(ii) the conduct of all or a substantial part of its business; or
i. anything having a similar effect to any of the events specified in paragraphs (a) to
h. happens to it under the law of any jurisdiction;
155. Intellectual Property means any patent, copyright, database, registered design or other design rights, utility model, trademark (whether registered or not and including any rights in get-up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right, and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions;
156. Loss means any damage, debt, loss, foregone profit, penalty, fine, expense, liability, or costs (whether incurred or contingent);
157. Project means an undertaking the parameters of which are the Commercial Terms set out in the Engagement Letter and a reference to the term "Project" (as in the context of Clarity Street being obliged to complete and provide the project) includes the Services required to complete that project;
158. Premises means any building or facility owned or used by the Client;
159. Quarter means a three-month period ending on 31 March, 30 June, 30 September, or 31 December;
160. Receiving Party means the party that receives or otherwise obtains the Confidential Information of the Disclosing Party;
161. Replacement Engagement Letter means an Engagement Letter for the project issued by Clarity Street after the Client provides a Variation Notice in respect of that project;
162. Services mean the services specified in an Engagement Letter and all other associated services, in addition to any other services to which the Parties agree in writing;
163. Variation Notice has the meaning ascribed to that term in clause 4; and
164. Work has the same meaning as in the Copyright Act 1968 (Cth).
INTERPRETATION
165. In this Agreement, unless the context requires another meaning, a reference:
a. to the singular includes the plural and vice versa;
b. to a gender includes all genders;
c. to a document (including this Agreement) is a reference to that document (including any Schedules and Annexures), as amended, consolidated, supplemented, novated, or replaced;
d. to an agreement includes any undertaking, representation, deed, agreement, or legally enforceable arrangement or understanding, whether written, oral, or implied;
e. to a party means a party to this Agreement;
f. to an item, Recital, clause, Schedule, or Annexure is to an item, Recital, clause, Schedule, or Annexure of, or to, this Agreement;
g. to a notice includes a notice, approval, demand, request, nomination, or other communication given by one party to another, under or in connection with this Agreement;
h. to a person (including a party) includes:
(i) an individual, company, other body corporate, association, partnership, firm, joint venture, trust, or Government agency; and
(ii) the person's successors, permitted assigns, substitutes, executors and administrators;
i. to a law includes any legislation, judgment, rule of common law or equity, and is a reference to that law as amended, consolidated, supplemented, or replaced, and includes a reference to any
regulation, by-law, or other subordinate legislation;
j. to time is to the time in Melbourne, Victoria; and
k. to the words "including" or "includes" means "including, but not limited to", or "includes, without limitation" respectively.
166. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
167. Headings are for convenience only and do not affect the interpretation of this Agreement.
168. If a period occurs from, after or before a day or the day of an act or event, it excludes that day.
169. If a period commences or ends on a day that is not a Business Day, the period will commence or end (as the case may be) on the next Business Day.
170. Unless indicated to the contrary, if the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given and the discretion may be exercised conditionally or unconditionally, but only to the extent that is reasonable and in good faith, or withheld by the party, but only on reasonable grounds and in good faith.
FUTURE CHANGES
Clarity Street reserves the right to review, and if necessary, change these Terms of Service. We will advise you of any changes and will post changes to these Terms of Service on its website.
CONTACT DETAILS FOR CLARITY STREET
You may write to Clarity Street at:
Clarity Street
Level 8, Unit 805
220 Collins Street
Melbourne VIC 3000
You may telephone us on:
+61 437 101 152
You may email us at:
[email protected]
Specifying in the subject line “Terms of Service”
QUESTIONS
If you have any questions regarding these Terms of Service or require further information, please contact Amy Holdsworth of Clarity Street (see contact details above).
Should there be a discrepancy between these Terms of Service and the applicable legislation at any time, the applicable legislation at that time will prevail.
This Consulting Agreement, is effective from the date of the signed proposal (this "Agreement"), and is made and entered into between you (the "Client") and Clarity Street (the "Consultant").
ENGAGEMENT
1. The Client engages Clarity Street for a project by them signing or otherwise showing their acceptance of an Engagement Letter, setting out:
a. the Services to be provided in connection with that project;
b. the Deliverables (if any);
c. the Milestones (if any);
d. the Deadline for each Milestone and for the project (if any);
e. the Fee for the project or the rate based on which the Fee for the project may be calculated;
f. the instalments of that Fee for each Milestone or payment period (if any);
g. insurance required by the Client, including the per-claim cap and the annual aggregate claim cap; and
h. any other features relevant to the project referred to as the Commercial Terms.
2. Signing or otherwise indicating its acceptance of an Engagement Letter creates a contract between the Client and Clarity Street, under which the client must accept delivery of the project specified in that Engagement Letter.
3. The Client warrants it does not rely upon any representation made by Clarity Street on or in connection with the project, save those set out in writing by the Client before signing the Engagement Letter for that project.
VARYING THE COMMERCIAL TERMS ON THE PROJECT
4. Before the completion of the project, the Client may seek to vary any of the Commercial Terms for that project by providing five (5) Business Days' notice in writing to Clarity Street (Variation Notice), setting out the following:
a. the changes to the Commercial Terms;
b. any deleted Commercial Terms;
c. any additional Commercial Terms; and
d. the Deadlines that the Client wishes to apply to the varied Commercial Terms.
5. A Replacement Engagement Letter applies to the project, and the previous Engagement Letter ceases to apply on the date both parties sign the Replacement Engagement Letter.
6. The Client acknowledges that a Replacement Engagement Letter may include deadlines different from those requested in the Variation Notice, and the Fees or the rates based on which we may calculate the Fees may differ from the original Engagement Letter.
STAFFING REQUIREMENTS
7. Clarity Street warrants that each person on the project is employed by it or an Affiliate of it and that person has the training, qualifications, experience, and skills necessary to perform those services.
8. Clarity Street agrees to provide supervision, as appropriate, of all people engaged in working on the project.
UNDERTAKING PROJECTS
9. The Client must provide any information, documents, and other material Clarity Street requests for the project.
10. Clarity Street must use its best endeavours to complete each Milestone by its deadline (if any).
11. Clarity Street must use its best endeavours to complete the project by its deadline.
12. On completion of the project, Clarity Street must notify the Client in writing to that effect.
USE OF PREMISES
13. The Client must, where necessary, procure or provide access to any premises:
a. required for the project; or
b. where Clarity Street requests that access, the extent of that access being adequate for Clarity Street to undertake that project and perform all the Services required to do so.
14. Clarity Street must use its reasonable endeavours to avoid causing any damage to the following when undertaking the project for the Client:
a. any Premises at which or in connection with which we perform Services;
b. any fixtures and fittings within those premises;
c. any plant and equipment in or around those premises; and
d. any other property or chattels, whether owned by the Client or any other person.
15. Without limiting clause 13, Clarity Street must comply with the following at any Premises at which or in connection with which Services are performed:
a. any policies, guidelines, or directions relevant to the use, access to, or conduct within those Premises published or provided by the Client; and
b. unless inconsistent with the policies, guidelines or directions provided for in clause 15(a), any direction provided by the Client.
16. Clarity Street must not engage in any act or omission in connection with its occupation or use of or presence in the Premises that causes or is likely to cause:
a. an obstruction or hindrance to the Client's use of the Premises or the conduct of the Client's business; or
b. an adverse effect on the Client's business or reputation.
17. Clarity Street is primarily a digital online business and all communication will be primarily via electronic and online means. Should a client request an in-person meeting or in-person training, additional fees may apply.
FEES & PAYMENT OPTIONS
18. The Client must pay the fees stated in the Engagement Letter or fees calculated using the rates specified in this Engagement Letter. The scope of our engagement is the preparation and completion of matters detailed in this agreement. Any agreed fee applies only to services and advice provided within the scope of our engagement. However, if the situation arises during this engagement where we discover additional matters not apparent at the time of preparing this fee proposal we will cease work, contact you and agree to an amended fee for those additional services.
19. We have requested your payment details below to streamline our billing process. We require payment details to be provided prior to beginning the agreed services in our engagement with full payment in advance (options required for on completion and within 7 days of completion) via direct debit, or credit card upon request. We accept Visa & Mastercard if credit card payment is requested and accepted.
DISBURSEMENTS & SUBSCRIPTIONS
20. Clarity Street is responsible for its standard business costs, which include local telephone calls, postage (other than courier costs), stationery costs and the cost of equipment and software that is not project-specific.
21. The Client must reimburse Clarity Street for any Disbursements Clarity Street incurs (and regarding which Clarity Street complies with clause 21) in connection with the project. Disbursements will be charged for the cost of legal expenses, couriers, research data, online costs, search fees, registration fees and any statutory fee incurred on your behalf.
22. The Client's obligation under clause 20 to pay any Disbursement more than $500 is subject to Clarity Street receiving the Client's consent in writing to it incurring that Disbursement.
23. For the avoidance of doubt, all Disbursements must be charged at cost.
24. Disbursements will be included on the invoice provided regarding the project.
25. Where relevant, your software subscriptions will be charged separately and in addition to any other service provided. You will always be the Subscriber for your software services, however in the unlikely event that Clarity Street is required to be the provider, we will always give you full access to your subscription and transfer ownership upon completion of the initial implementation.
GOODS AND SERVICES TAX
26. Subject to the provision of a tax invoice that complies with the law, a party, must reimburse the other party for any GST obligation that the party incurs.
27. A party's obligation under clause 24 applies if the other party is registered for GST and, if requested, provides any document that verifies its registration for GST.
28. The Client must notify Clarity Street in writing immediately it ceases to be registered for GST.
29. The GST Obligation is the GST payable on any taxable supply made in connection with this Agreement, plus any fines, penalties, interest, and other charges incurred because of overdue payment or other default by the GST Recipient under this Agreement.
30. A party that provides a taxable supply in connection with this Agreement must do all things requested for the other party to obtain any input tax credit to which it is entitled to the resulting GST Obligation.
31. If a party is required to pay, reimburse, or indemnify another party for any cost, expense, or other amounts that the other party incurs or will incur in connection with this Agreement, that amount will be reduced by any part thereof for which the other party (or a representative member if this is not the other party) can claim an input tax credit.
SERVICE WARRANTIES AND REQUIREMENTS
32. Clarity Street warrants that Services are provided with all due care and skill that a reasonable person would expect from a business with the experience Clarity Street represents in public, in its advertising or directly to the Client that it possesses.
33. Clarity Street must not engage in any activity in connection with the project likely to adversely affect the Client's reputation or fail to engage in any act, where failing to do so is expected to affect the Client's reputation adversely.
34. Clarity Street must provide all Services in accordance with the law.
TERMINATION
35. This Agreement terminates on the completion of the project by Clarity Street.
36. Either party may terminate this Agreement if the other party is in breach of an obligation set out in this Agreement and fails to remedy that breach within thirty (30) days of the date of any notice to that effect.
37. Either party may terminate this Agreement by notice in writing with immediate effect if the other party experiences an Insolvency Event.
CONSEQUENCES OF TERMINATION
38. On termination of this Agreement, the project, if incomplete at the date of termination, is cancelled:
a. unless and to the extent the Client notifies Clarity Street to the contrary; or
b. if termination is effected because of a breach by Clarity Street; otherwise, the terms and conditions of this Agreement continue to apply to that project until it is completed.
39. Neither party incurs any liability to the other because of the termination of this Agreement if termination is pursuant to the terms of this Agreement.
40. Termination of this Agreement is without prejudice to any accrued rights or liabilities of a party. It does not excuse any party from a breach of this Agreement occurring before termination or expiration or excuse any party from paying any amount which is or becomes due and payable to the other party in respect of the performance by the other party before termination.
41. Upon the expiry or termination of this Agreement, each party must return or destroy (in the disclosing party's discretion, and to the extent lawfully allowable) all materials (including any copies) that in any way includes or refers to the Confidential Information of the other party, and, where applicable, delete any such Confidential Information stored on any computer system of the receiving party.
42. The receiving party, if requested by the disclosing party, must state on oath that the receiving party has satisfied its obligations under clause 39.
43. The receiving party must ensure that any person to which Confidential Information is disclosed returns, destroys, or deletes (as the case may be) that Confidential Information in accordance with clause 39, as if the reference in that clause to the receiving party were to that person.
TIME RECORDING AND REPORTING
44. Where the Fee for the project is calculated by reference to a rate, Clarity Street must maintain records of the time spent by Clarity Street on that project, identifying:
a. the activity undertaken, recording all relevant details of that activity; and
b. the person involved, identifying the tasks each person completed.
45. There is a presumption that any time records are maintained by Clarity Street in connection with the project are correct, a presumption that is rebuttable only by probative evidence to the contrary, in respect of which the Client has the burden of proof.
46. Clarity Street agrees to provide to the Client in electronic form any time records maintained by Clarity Street in connection with any outside of scope work should the Client request.
INTELLECTUAL PROPERTY
47. Clarity Street warrants that it owns all Foreground IP Rights and either owns all Background IP Rights in the Deliverables or has a right to use and exploit those Background IP Rights, the latter on terms that include:
a. a term of not less than ten (10) years; and
b. the ability to sub-license the said rights.
48. Clarity Street grants the Client a non-exclusive, irrevocable, and royalty-free licence to use the IP Rights in the Deliverables provided to it in connection with the project to the extent necessary for the Client to achieve the purpose for which the project is commissioned.
49. Clarity Street warrants to the Client that none of the Deliverables nor the use of the Deliverables infringes on any person's IP Rights. Any rights assigned to Clarity Street by operation of clauses 47 or 50 are excluded from the warranty provided by this clause 49.
50. The Client assigns to Clarity Street any Foreground IP Rights in each Deliverable (if any), which Foreground IP Rights vest in the Client, may vest in the Client, which have vested in the Client or that the Client otherwise owns.
51. The Client grants to Clarity Street a non-exclusive, irrevocable, and royalty-free licence to use the Background IP Rights in each Deliverable that it owns or has a right to use (if any), as far as a licence is required for Clarity Street to make use of that Deliverable.
52. The Client must procure from each person who is an Author of any Work constituting a Deliverable or constituting a part of a Deliverable a written unconditional and irrevocable waiver of all Moral Rights that person may have in the Deliverables, authorising Clarity Street and any other person authorised by Clarity Street to exercise all acts comprised in the copyright in the Deliverables.
53. The Client must procure (at its cost) any independent contractor engaged by it that owns any IP Rights in a Deliverable to comply with clauses 47, 48 and 49 as if the reference to the Client were to that contractor.
CONFIDENTIALITY
54. Any Confidential Information of a Party disclosed to or otherwise obtained by the other party (or an Affiliate of that other party) under or in connection with this Agreement must:
a. not be used by the receiving party for any purpose other than exploiting a right or discharging an obligation under this Agreement; and
b. be kept confidential and not disclosed by the receiving party, save to the extent permitted under clause 54.
55. Confidential Information may be disclosed if the disclosure is:
a. required by law (including any rule of a stock exchange); or
b. to an Affiliate of the receiving party.
56. Disclosure under clause 54(a) must not be made until the party required by law to make disclosure gives the other party as much prior notice of the requirement for and contents of the disclosure as is practicable without infringing the legal obligation to disclose that information.
57. Disclosure under clause 54(b) must not be made save for Confidential Information that the Affiliate requires for the purpose of the receiving party discharging its obligations under this Agreement and only after all reasonable and usual steps in the circumstances are taken to protect against the misuse or unauthorised disclosure of the Confidential Information by the Affiliate, which includes:
a. advising the Affiliate of the contents of clauses 54 to 60 (inclusive); and
b. on request, obtaining from the Affiliate an undertaking in writing to the disclosing party to be bound by the terms of clauses 54 to 60 (inclusive).
58. Any failure by a person to which a receiving party discloses Confidential Information to comply with the terms of clauses 54 to 60 (inclusive) (as if any reference to the receiving party were to that person) constitutes a breach of this Agreement by the receiving party.
59. Each party acknowledges that monetary damages are not an adequate remedy for a breach of clauses 54 to 60 (inclusive).
60. A party may seek specific performance or an injunction as a remedy for such a breach or where such a breach is anticipated, in addition to any other remedies available at law or in equity.
Insurance
61. Clarity Street must, at its own cost, obtain and for the term of the project maintain professional indemnity insurance, permitting claims of not less than $1 million, in the aggregate over a year of no less than $1 million.
62. The Client must at its cost obtain and for the term of the project maintain each insurance policy specified in the Engagement Letter, each policy permitting claims of not less than the sum specified in that Engagement Letter (or directed by the Client), in the aggregate over a year and per claim.
63. Each party must provide to the other a Certificate of Currency for the insurance required by clauses 61 and 62 immediately on renewing that insurance and otherwise on demand.
INDEMNITIES AND LIABILITY CAP
64. The Client indemnifies and holds Clarity Street and its officers, directors, employees, agents, and representatives harmless from and against any Losses arising out of any Claim resulting from:
a. any negligent or intentionally wrongful act or omission of the Client or its employees or other representatives; and
b. Clarity Street's actions or omissions as far as those acts or omissions are consistent with the Client's written instructions to Clarity Street.
65. Clarity Street must use reasonable endeavours to mitigate any losses regarding which it seeks indemnification under clause 61, the amount the Client must pay to Clarity Street under clause 61 being reduced by an amount equal to the Losses incurred because of Clarity Street failing to comply with this clause 63.
66. For the purposes of clause 64, Clarity Street enters this Agreement on its own behalf and as agent or, and trustee of, its officers, directors, employees, agents, and representatives.
67. To the extent permitted by law, Clarity Street's total liability to the Client for any Claim and, if permitted by law, all other Claims arising in the previous twelve (12) months (Claim Period) is the lesser of:
a. either of:
(i) resupplying to the Client the Services provided for the project the subject of each Claim; or
(ii) paying the Client the cost of having those services provided by another service provider; and
b. the amount equal to the Fees payable by the Client to Clarity Street in the Claim Period.
68. Save for the limitation of liability provided for in clause 67, the Client waives all rights it has or may have against Clarity Street under or in connection with this Agreement and otherwise regarding the project, including any claim for negligence or any other tort.
PRIVACY
69. Clarity Street may collect, use, and disclose personal information about the Client (or if the Client is a corporate entity, about its officer, employees, or representatives). Clarity Street collects this personal information directly from Client and may also collect personal information passively through its website.
70. Clarity Street collects the Client's personal information to affect its internal business purposes, for marketing and promotional purposes, to provide the Services to the Client and comply with legal and regulatory requirements. If the personal information the Client provides is incomplete or inaccurate, any obligation on Clarity Street to provide Services is suspended where Services cannot be provided without complete or accurate information.
71. Clarity Street may disclose personal information about the Client to any service provider that assists Clarity Street in operating its business in connection with the provision of Services to the Client.
72. Any personal information (including sensitive information) collected by Clarity Street will be treated in accordance with Clarity Street's Privacy Policy, which can be found on Clarity Street's website (www.claritystreet.com.au/privacypolicy). Clarity Street's Privacy Policy details how Clarity Street uses, stores, and discloses personal information. The Privacy Policy also sets out how the Client can access and ask for correction of the Client's personal information, whether personal information will be sent overseas and how to complain about privacy-related matters.
73. The Client agrees to Clarity Street collecting the Client's personal information in accordance with the terms of Clarity Street's Privacy Policy.
74. The Client must notify all its employees, contractors and/or agents who provide Clarity Street with their personal information of Clarity Street's practices and policies relating to the collection, use, disclosure, and storage of personal information.
75. The Client agrees that files, emails, and correspondence that contain sensitive information relating to their clients (TFNs, ABNs, and similar) will not be emailed to Clarity Street, but uploaded to a secure, password-protected cloud-storage folder provided by Clarity Street.
76. The Client unconditionally indemnifies Clarity Street for the Client's non-compliance with clauses 69 to 75 (inclusive).
77. If you have questions regarding Clarity Street's collection, use or disclosure of personal information or Clarity Street's Privacy Policy, please contact Amy Holdsworth at Level 8, Unit 805, 220 Collins Street, Melbourne VIC 3000, [email protected] or +61 437 101 152.
DATA PRIVACY
78. The analysis requires us to extract your data which may include your personal information (or that of another person, such as your clients or employees which you enter or upload into our products or services). Privacy is important to Clarity Street. And we know it's important to you. By accepting this proposal, you consent to us collecting and using your data. We collect and use your data so we can:
a. provide you with the products, services and support you've asked for;
b. respond to your enquiries or feedback;
c. customise and improve your experience; and
d. improve our products and services.
OWNERSHIP OF DOCUMENTS
79. We will prepare various working papers and notes consistent with our internal quality control system during our engagement. These working papers remain the property of our company and will be retained by us to support any future queries on work completed.
80. Original source records provided by you to us to assist in the completion of your work will be returned to you after each engagement.
81. Where appropriate, we may take copies to retain on your client file. The company has a policy of exploring a legal right of lien over any client documents in our possession in case of a dispute.
STORAGE OF DOCUMENTS
82. We use Cloud-Based Data Storage with servers located in Australia and overseas to house your documents and to facilitate the transfer of data files and other information from clients.
83. The providers of this storage have privacy policies that are consistent with the Australian Privacy Principles.
84. Accepting our services as part of this engagement agreement indicates your acceptance of the outsourced services, cloud-hosted software and outsourced data storage under the conditions outlined above.
85. You can find a copy of our complete Privacy Policy and any other information concerning the security of your personal information and data here: https://www.claritystreet.com.au/privacy-policy.html
OUTSOURCED SERVICES
86. From time to time, we may outsource Cloud Advisory and Other Services to various service providers, including Australian companies that have staff located overseas. These Service Providers are required to comply with Australian Privacy Principles in disclosing your personal information to any overseas recipients, including taking all reasonable steps to ensure that:
a. The overseas recipient does not breach the Australian Privacy Principles; or
b. The overseas recipient is subject to a law, or binding scheme, which has the effect of protecting the information in a way that, overall, is at least substantially like the way the Australian Privacy Principles protect the information.
87. Acceptance of our services in conjunction with this engagement document indicates your acceptance of the use of outsourced services as described.
88. No work will be outsourced overseas without your express consent or without first discussing this with you.
USE OF CLOUD COMPUTING SERVICES
89. We use Cloud Computing Software to manage, process and function our client's work and business operations.
90. All data is stored on servers hosted by third parties. The servers are in the United States but may be replicated in other locations. The parties that host these servers do not control and are not permitted to access your Personal Information except for the limited purpose of storing the information.
91. The suppliers of this software have privacy policies that are consistent with the Australian Privacy Principles.
PROJECT ROLLOUT
92. By signing this agreement, the Client agrees that they have conducted their Due Diligence concerning any software changes, and associated impact, to their practice this project will affect.
93. Clarity Street will implement our standard "best practice" configuration for each software application detailed in this proposal. Post-implementation Clarity Street will train your appointed team members on application settings and any required customisations. Should any settings be changed, or customisations made without consultation with Clarity Street, Clarity Street holds no responsibility for the correct functioning software, nor the data contained therein.
94. Clarity Street will work to ensure agreed rollout deadlines are met for the duration of the engagement and all attempts will be made to clearly communicate these deadlines and manage expectations. We will contact you as soon as possible if deadlines need to be moved due to unforeseen circumstances.
95. Clarity Street will notify you four weeks before the engagement completion date that four weeks are remaining of the project. Where Clarity Street is not at fault and the project completion is likely to pass its due date and you need to extend the project beyond the agreed due date, you will need to apply for a project extension. Approval for the extension is based on Clarity Street's availability and capacity to continue working on the project beyond the initial project end date. This application must be made at least ten business days before the end of the initial project end date.
If your extension application is approved, you will be granted an additional 30 days to complete the project with no additional fees. However, if the project extends beyond this grace period, the monthly consulting fees as per the engagement agreement will apply for each subsequent month. You will be charged a Monthly Extension Fee (MEF)+GST every month until completion and the sign-off has occurred, chargeable in complete months on the first day of each month. This MEF is calculated: Total Engagement Cost / Number of Months of Engagement. For example: $30,000 Total Engagement / 6-month engagement = $5,000 MEF
96. During your engagement with Clarity Street, we will require access to all relevant software. Where additional software licences are required for us to complete our agreed services, the cost of these additional licences will be covered by you.
97. Upon termination and completion of the project, Clarity Street will request the complete removal of all Clarity Street user access from all software. Should you fail to action this request, Clarity Street will not be held responsible in the event of a data breach, loss of data or business expense incurred.
98. Clarity Street will make every effort to record all online training sessions specific to your business and provide access to these recordings post each session. During your project, if one of your employees leave, you gain new employees, or employees change roles within your team, the training of the relevant software along with processes and procedures is your responsibility, not that of Clarity Street. Clarity Street can be engaged for additional training as required under a separate engagement or amendment to this engagement.
99. By signing this agreement, the Client agrees that any Client requested amendments to this agreement, including software substitutions, are entirely at the discretion of Clarity Street and Clarity Street reserve the right to decline any amendment requests.
99A. When Clarity Street is engaged to fix errors of any kind in any software (for example software set up, client data, missing or incorrect client data), Clarity Street will perform this action once only. Should any staff member, current or past, make any changes that override fixes that Clarity Street has completed or create client data that require fixes, additional or repeat fixes are not part of this engagement and will be charged separately.
99B. All project clients will be required to maintain a Clarity Campus subscription for the duration of their project, as all primary training on applications is provided via Campus. This subscription is ongoing after the completion of the project. It can be terminated anytime after the project end date with 30 days notice. Please click on this link for the most current Terms. https://campus.claritystreet.com.au/terms
COMMUNICATION
100. Clarity Street is primarily an online business, so our primary means of communication and training will be online. The client is expected to use a communication tool like Microsoft Teams, Zoom or similar for online meetings and training.
101. Clarity Street will primarily communicate via email; however, additional methods of secure online forms, checklists, and similar will be used as part of the project.
ELECTRONIC COMMUNICATIONS
102. We will communicate with you electronically, including sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003).
103. You consent to us sending Electronic Communications to you along with agreeing to be included in our e-newsletter subscription and important topical broadcasts as they arise from time to time.
104. If you wish to unsubscribe from Clarity Street e-Newsletters, please follow the unsubscribe process by selecting 'unsubscribe' at the bottom of the email content.
105. Electronically transmitted information cannot be guaranteed to be secure or virus or error-free, and consequently, such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use.
106. We will not be liable to you for any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you.
NOTICES
107. Any notice provided under this Agreement must be sent by certified or registered mail, email or facsimile or delivered by hand to the receiving party at the address set out in the Contract Details or the most recent Engagement Letter.
108. All notices provided under this Agreement is deemed to have been duly given or made:
a. five (5) Business Days after being deposited in the mail with postage prepaid;
b. if delivered by facsimile when the activity report confirms successful transmission;
c. if delivered by email, at the time the email is sent, evidenced by an electronic receipt; or
d. on delivery, if delivered by hand, evidenced by an affidavit of service.
CONTRACT DOCUMENTATION
109. If any document constituting part of the Agreement between the parties is inconsistent with any other document constituting part of that Agreement, the document that precedes the other in the following list prevails to the extent of that inconsistency:
a. the General Terms and the Contract Details;
b. the Engagement Letter; and
c. any other attachments, schedules, and Annexures.
GENERAL PROVISIONS
110. Clarity Street is not an agent of the Client and must not purport to act in that capacity unless the Client provides a written direction to Clarity Street to that effect.
111. Save where stated to the contrary, nothing in this Agreement is intended or will be construed as constituting an employment relationship, a partnership, agency, or joint venture relationship between the parties.
112. The parties are independent contractors.
113. Clarity Street has a right of set-off in respect of any amounts payable by it to the Client.
114. Each party must do everything necessary or desirable to enable the other party to observe and perform its covenants and obligations under this Agreement.
115. Each party agrees to act in good faith towards the other party in respect of this Agreement.
116. This Agreement supersedes and terminates all prior negotiations, representations, correspondence, and agreements between the Client and Clarity Street.
117. This Agreement cannot be amended, modified, or supplemented, except in writing duly signed by the parties.
118. This Agreement cannot be assigned by either the Client or Clarity Street without the prior written consent of the other, which consent must not be unreasonably withheld or its provision unreasonably delayed.
119. This Agreement is binding upon, and inures to the benefit of, the parties, their successors and permitted assigns.
120. If a provision of this Agreement is invalid or unenforceable in a jurisdiction:
a. it is to be read down or (if reading it down sufficiently is not possible) severed in that jurisdiction
to the extent of the invalidity or unenforceability; and
b. it does not affect the validity or enforceability of:
(i) that provision in another jurisdiction; or
(ii) the remaining provisions of this Agreement.
121. The parties agree to execute, acknowledge, and deliver such further instruments and take all such other incidental acts (including executing all documents and giving all notices) as may be reasonably necessary or appropriate to carry out the purpose and intent of this Agreement.
122. A waiver of a provision or of a right arising under this Agreement can only be given or granted by a party in writing and will otherwise operate only if in writing.
123. A waiver is effective only in the specific instance, and for the specific purpose it is given.
124. A single or partial exercise of a right by a party does not preclude another or further exercise or attempted exercise of that right or the exercise of another right.
125. Failure by a party to exercise or delay exercising a right does not prevent its exercise or operate as a waiver.
126. Any Affected Obligation is suspended to the extent the event of Force Majeure prevents, restricts, or inhibits the performance or observance of that obligation.
127. Where an Event of Force Majeure continues for an uninterrupted period of six (6) months or more, the party, other than the Affected Party, may terminate this Agreement by thirty (30) days' notice in writing, and such termination will be without prejudice to any other rights of the parties.
128. This Agreement is governed by the laws of Victoria.
129. The Courts of Victoria have exclusive jurisdiction to determine any matter, issue or dispute that arises out of, or that is otherwise connected with, this Agreement.
130. For the purposes of clause 128, each party irrevocably and unconditionally submits to the jurisdiction of the Courts of Victoria.
131. All clauses that purport to have the effect or could have effect after the expiration or termination of this Agreement apply after this Agreement terminates or expires.
132. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
GLOSSARY
Unless the context requires otherwise:
133. Affected Obligation means an obligation under this Agreement (other than the obligation to pay money), the performance or observance of which is prevented or materially restricted or materially inhibited by or as a result of an Event of Force Majeure;
134. Affiliate means the same as related body corporate under the Corporations Act 2001 (Cth);
135. Author has the same meaning as in the Copyright Act 1968 (Cth);
136. Background IP Rights means any IP Rights (other than Foreground IP Rights) subsisting in, or otherwise associated with, or required for the use of, a Deliverable;
137. BusinessDay means a day that is not a Saturday, Sunday or a public holiday or bank holiday in Melbourne, Victoria;
138. Claim means any claim, allegation, suit, action, demand, cause of action or proceeding (including any prosecution by any statutory authority, in which an authority seeks a pecuniary penalty), irrespective of:
a. when it arises;
b. whether it is actual or contingent; or
c. whether it is at law (including under contract or tort), in equity or under statute;
139. Commercial Terms has the meaning ascribed to that term in clause 1;
140. Confidential Information means:
a. the terms of this Agreement;
b. the Commercial Terms of the project;
c. the details of any discussions Clarity Street and the Client have or correspondence in which Clarity Street and the Client engage concerning the Fees;
d. the Deliverables;
e. Clarity Street's methodology;
f. the Client's commercial plans and strategies; and
g. any other information that, by its nature or the circumstances surrounding its disclosure or discovery, is or could be expected to be regarded as confidential to the Disclosing Party,
any of its Affiliates or any third party with whose consent or approval the disclosing Party or any of its Affiliates uses that information,
but does not include:
h. any information that is in or enters the public domain, other than because of a breach of this Agreement;
i. information that the Receiving Party can prove by written documentation was already known to it at the time of disclosure;
j. information that the Receiving Party acquires from a third party entitled to disclose it on a non-confidential basis; and
k. information independently developed by the Receiving Party or its Affiliates without reference to the Disclosing Party's Confidential Information, as evidenced by its written records;
141. Contract Details means the information set out in the document headed Contract Details;
142. Deadline means the date by which a Milestone or the project must be completed, as set out in an Engagement Letter;
143. Deliverable means any document or material created for the purposes of the project or that is otherwise used for that project or provided to the Client in connection with that project;
144. Disbursement means any cost or expense that:
a. Clarity Street incurs expressly in connection with the project, and
b. is not and cannot reasonably be characterised as a business expense of a business such as Clarity Street;
145. Disclosing Party means the party that discloses Confidential Information or whose Confidential Information is otherwise obtained by the Receiving Party;
146. Engagement Letter means a document complying with clause 1, a term that includes any Replacement Engagement Letter.
147. Event of Force Majeure means any event or circumstances beyond a party's reasonable control, including, but not limited to, an act of God, any industrial dispute (including a lockout, labour disturbance or stoppage), and an administrative or executive order, regulation or act of any government or government instrumentality;
148. Fee means the sum or sums set out in an Engagement Letter or the sum calculated by reference to the formula and the rates set out in an Engagement Letter;
149. Foreground IP Rights means IP Rights subsisting in or otherwise associated with any Services created solely for the project;
150. GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
151. GST Obligation has the meaning ascribed to that term in clause 119;
152. GST Recipient means the party that receives a taxable supply, as that term is understood in the GST Act;
153. IP Rights means any rights subsisting in or otherwise associated with Intellectual Property, which term includes Foreground IP Rights and Background IP Rights;
154. Insolvency Event means, in respect of a party, the happening of one or more of the following events:
a. except for the purpose of a solvent reconstruction or amalgamation that has the prior written consent of the other party:
(i) an order is made that it be wound up or that a Controller (as defined in the Corporations Act 2001 (Cth)) be appointed to it, or any of its assets; or(ii) a resolution that it be wound up is passed;
b. a trustee in bankruptcy, liquidator, provisional liquidator, Controller (as defined in the Corporations Act 2001 (Cth)) or any similar official is appointed to, or takes possession or control of,
all or any of its assets or undertaking;
c. an administrator is appointed to it;(b) a trustee in bankruptcy, liquidator, provisional liquidator, Controller (as defined in the Corporations Act 2001 (Cth)) or any similar official is appointed to or takes possession or control of, all or any of its assets or undertaking; ( c ) an administrator is appointed to it;
d. it enters or resolves to enter, an arrangement, compromise, or composition with any of, or any class of, its creditors or shareholders, or an assignment for the benefit of any of, or any class of, its creditors, or process is filed in a court seeking approval of any such arrangement, compromise, or composition;
e. a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors is proposed or effected;
f. it is unable to pay its debts as and when they fall due, or it is presumed to be insolvent under any applicable law;
g. because of the operation of section 459F(1) of the Corporations Act 2001 (Cth), it is taken to have failed to comply with a statutory demand;
h. it stops, suspends, or threatens to stop or suspend:
(i) the payment of all or a class of its debts; or
(ii) the conduct of all or a substantial part of its business; or
i. anything having a similar effect to any of the events specified in paragraphs (a) to
h. happens to it under the law of any jurisdiction;
155. Intellectual Property means any patent, copyright, database, registered design or other design rights, utility model, trademark (whether registered or not and including any rights in get-up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right, and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions;
156. Loss means any damage, debt, loss, foregone profit, penalty, fine, expense, liability, or costs (whether incurred or contingent);
157. Project means an undertaking the parameters of which are the Commercial Terms set out in the Engagement Letter and a reference to the term "Project" (as in the context of Clarity Street being obliged to complete and provide the project) includes the Services required to complete that project;
158. Premises means any building or facility owned or used by the Client;
159. Quarter means a three-month period ending on 31 March, 30 June, 30 September, or 31 December;
160. Receiving Party means the party that receives or otherwise obtains the Confidential Information of the Disclosing Party;
161. Replacement Engagement Letter means an Engagement Letter for the project issued by Clarity Street after the Client provides a Variation Notice in respect of that project;
162. Services mean the services specified in an Engagement Letter and all other associated services, in addition to any other services to which the Parties agree in writing;
163. Variation Notice has the meaning ascribed to that term in clause 4; and
164. Work has the same meaning as in the Copyright Act 1968 (Cth).
INTERPRETATION
165. In this Agreement, unless the context requires another meaning, a reference:
a. to the singular includes the plural and vice versa;
b. to a gender includes all genders;
c. to a document (including this Agreement) is a reference to that document (including any Schedules and Annexures), as amended, consolidated, supplemented, novated, or replaced;
d. to an agreement includes any undertaking, representation, deed, agreement, or legally enforceable arrangement or understanding, whether written, oral, or implied;
e. to a party means a party to this Agreement;
f. to an item, Recital, clause, Schedule, or Annexure is to an item, Recital, clause, Schedule, or Annexure of, or to, this Agreement;
g. to a notice includes a notice, approval, demand, request, nomination, or other communication given by one party to another, under or in connection with this Agreement;
h. to a person (including a party) includes:
(i) an individual, company, other body corporate, association, partnership, firm, joint venture, trust, or Government agency; and
(ii) the person's successors, permitted assigns, substitutes, executors and administrators;
i. to a law includes any legislation, judgment, rule of common law or equity, and is a reference to that law as amended, consolidated, supplemented, or replaced, and includes a reference to any
regulation, by-law, or other subordinate legislation;
j. to time is to the time in Melbourne, Victoria; and
k. to the words "including" or "includes" means "including, but not limited to", or "includes, without limitation" respectively.
166. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
167. Headings are for convenience only and do not affect the interpretation of this Agreement.
168. If a period occurs from, after or before a day or the day of an act or event, it excludes that day.
169. If a period commences or ends on a day that is not a Business Day, the period will commence or end (as the case may be) on the next Business Day.
170. Unless indicated to the contrary, if the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given and the discretion may be exercised conditionally or unconditionally, but only to the extent that is reasonable and in good faith, or withheld by the party, but only on reasonable grounds and in good faith.
FUTURE CHANGES
Clarity Street reserves the right to review, and if necessary, change these Terms of Service. We will advise you of any changes and will post changes to these Terms of Service on its website.
CONTACT DETAILS FOR CLARITY STREET
You may write to Clarity Street at:
Clarity Street
Level 8, Unit 805
220 Collins Street
Melbourne VIC 3000
You may telephone us on:
+61 437 101 152
You may email us at:
[email protected]
Specifying in the subject line “Terms of Service”
QUESTIONS
If you have any questions regarding these Terms of Service or require further information, please contact Amy Holdsworth of Clarity Street (see contact details above).
Should there be a discrepancy between these Terms of Service and the applicable legislation at any time, the applicable legislation at that time will prevail.
