Cress Consulting Pty Ltd Standard – Terms and Conditions – March 2020
- Conditions of Engagement
(a) Cress Consulting Pty Ltd (Cress) will perform the Services in accordance with these conditions and any related Letter of Engagement, which, when read together, form the contract (Contract) between you (the Client) and Cress. If there is any inconsistency between the two documents, these terms and conditions prevail.
(b) Cress will commence the Services as soon as practicable after this Contract is executed by both parties and complete the Services within the time agreed with you or, if no time is stated, within a reasonable period of time. If Cress is delayed in performing its obligations by an act or event beyond its reasonable control, time for performing the obligations shall be extended by a time equal to the delay.
- Our Obligations
(a) Cress will perform the Services to the standard of skill, care and diligence as is reasonably expected of a consultant performing the same or similar services.
- Client Obligations
(a) The Client must instruct Cress fully and give Cress all relevant, up-to-date and accurate information and documents as well as access to data, premises and people and the internal resources, as reasonably required to perform the Services within the agreed timeframe. Cress may rely on information and documents provided by the Client but is under no duty to verify their accuracy or completeness.
(a) The Client and Cress may agree in writing to vary the Services. The value for each variation shall be calculated based on the Fee schedule or as agreed between Cress and the Client. Time for performing the Services shall be extended by a time equal to the variation.
- Fees and expenses
(a) The Client must pay to Cress the Fees, any expenses relating to the Services, the value of any variation in accordance with clause 4, and any reasonable costs incurred by Cress in performing its obligations under this Contract and agreed to by the Client.
(a) The Client must pay Cress the amount payable under this Contract within fourteen days of the date of a payment claim. Cress may claim payment progressively throughout the Project, corresponding with the value of work undertaken during the period.
(b) The Client shall pay interest to Cress on the moneys outstanding from the date 30 days after the date of invoice calculated at monthly rests at the rate of the current commercial overdraft rate determined by the ANZ Bank plus 3%.
(c) The prices quoted by Cress for the Services do not include GST and if applicable shall be additional to the quoted price. For the purposes of these terms and conditions “GST” means GST within the meaning of a New Tax System (Goods and Services Tax) Act 1999.
(d) Cress reserves the right to perform no further work for the Client until all outstanding accounts are paid in full.
(a) The parties must keep confidential all information marked “confidential” or which by its nature is confidential. This does not apply where the information is (a) in the public domain (other than through a breach of this Contract); (b) required by law to be disclosed; (c) disclosed to a party’s financial or legal advisors; or (d) used by Cress for marketing purposes, but then only to the extent that Cress makes non-specific statements.
- Intellectual property rights
(a) Cress retains all intellectual property rights in anything it develops in the course of performing the Services. We grant you an irrevocable non-exclusive licence to the intellectual property rights for the purpose of you implementing the Services and using the Deliverables within your organisation.
(b) You grant us an irrevocable non-exclusive licence to any intellectual property rights in any material you provide us for the purpose of inclusion of any material in the Deliverables or use in the performance of the Services. As part of this licence, you consent to our insertion of your logos or trademarks on Deliverables where appropriate unless you notify us to the contrary.
(a) Our Liability to the Client is limited to the Fee or the cost of re-performing the Services, whichever is the lesser. Liability arising under this clause is reduced to the extent it arises out of in connection with any negligent act or omission or breach of contract by the Client. Cress is not liable for loss of actual or anticipated revenue or profits, increased capital or financing costs, increased operational or borrowing costs, pure economic loss, exemplary or punitive damages or indirect or consequential damages.
(b) Twelve months from the date of our final invoice, each party releases the other from all current and future Liability, save for the Client’s obligation to pay the Fee and any claim or dispute that has been notified in writing before that date.
- Use of Deliverables
Unless Cress expressly agrees otherwise:
(a) The Services are solely for the use and benefit of the Client; and
(b) Cress does not accept any liability, whether directly or indirectly, for any Liability or loss suffered or incurred by any third party placing any reliance on the performance of the Services or any documents, materials or advice arising from or in connection with the Services.
- Independent contractor
(a) Cress will provide the Services as an independent contractor. Nothing in this agreement creates a partnership, joint venture or other relationship between Cress and the Client. No party has the right, power or authority to oblige or bind the other in any manner.
- Dispute resolution
If there is a dispute relating to the Services or this agreement, the parties must submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute will be provided for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree, by the Australian Commercial Disputes Centre (ACDC). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provisions of this clause. If the dispute is not resolved within 60 days after notice of the dispute, the mediation will terminate unless the parties otherwise agree.
(a) Cress may terminate this agreement by notice in writing if you do not pay our bills when due or do not provide us with adequate instructions. The parties may terminate the Contract at any time by mutual written agreement.
(b) Termination will be on terms which will reimburse Cress for any costs or loss (including but not limited to loss of profit, legal costs (on a full indemnity basis) incurred.
(c) Termination shall be without prejudice to any claim that either party may have against the other in respect of any breach of the terms of the Contract that occurred prior to the date of the termination.
- Governing law and jurisdiction
All aspects of the Services and this agreement are governed by, and construed in accordance with, the laws of New South Wales, Australia. Both you and Cress irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales, Australia.