IMPACTOLOGY PTY. LTD. – TERMS OF SERVICE
1. INTERPRETATION
1.1 In these Terms of Service, terms described in a Work Order shall have the meaning ascribed to them. The following words shall have the following meanings:
(a) Agreement means these Terms of Service together with each Work Order.
(b) Background IP means all Intellectual Property Rights which (a) a party owned prior to entering into this Agreement or prior to entering into a relevant Work Order; or (b) is created independently of the Products or Services, or otherwise of this Agreement. For the avoidance of doubt, the Products provided by Impactology will constitute Impactology’s Background IP.
(c) Deliverables shall mean one or more Products or Services which are described in a Work Order.
(d) Client means the party so named in a Work Order and if no person is so named, then the purchaser of the Deliverables from Impactology.
(e) Fees means the fees and charges of Impactology for the provision of the Deliverables, which are either specified in a Work Order (or issued under a Work Order) or in an invoice of Impactology.
(f) Impactology means IMPACTOLOGY PTY LTD ABN 61 825 768 623.
(g) Intellectual Property means all intellectual property rights throughout the world including all present, future, registered and unregistered rights which subsist in copyright, patents, trademarks and designs.
(h) Products means any documents, reports or other goods to be provided by Impactology as described in a Work Order.
(i) Services means the services to be provided by Impactology as described in a Work Order.
(j) Term means the term of this Agreement, or a Work Order (as applicable), as described in a Work Order.
(k) Work Order means any document by that name, but shall also include any document agreed between the parties which describes the Deliverables to be provided, the Fees payable, and any other particulars referenced in this Agreement as being described in a Work Order.
2. ENGAGEMENT
2.1 The Client engages Impactology’ to provide the Deliverables, and Impactology agrees to use reasonable endeavours to provide the Deliverables, on the terms of each Work Order and these Terms of Service. The parties may have more than one Work Order in place under this Agreement, which describes (amongst other things) the Deliverables to be provided and the Fees payable. If there is any conflict between these Terms of Service and a Work Order, then they will be read in the following order of priority (a) these Terms of Service; (b) the most recent Work Order; (c) any prior Work Order.
2.2 The Deliverables to be provided will be as described in a Work Order and shall constitute one or more Products or Services described therein. The Deliverables will be deemed to have been delivered (a) when any acceptance criteria specified in a Work Order are reasonably determined by Impactology to have been met; or (b) otherwise when reasonably determined by Impactology.
2.3 The Client acknowledges that the provision of the Deliverables is dependent on the Client meeting its obligations described in a Work Order and on any assumptions described in a Work Order holding true. Impactology shall not be liable for, and the Client agrees to pay any increased Fees arising from, any failure to provide the Deliverables in accordance with a Work Order should the Client fail to meet its obligations, or should those assumptions not hold true.
2.4 Any due dates for the provision of Deliverables specified in a Work Order are a guide only, and Impactology shall not be liable for any failure to meet those due dates.
3. FEES & EXPENSES
3.1 The Client agrees to pay Impactology the Fees by the due date and method specified in any invoice (or within 7 days of the date of any invoice if no due date is specified), or in accordance with any payment terms otherwise agreed in a Work Order.
3.2 Impactology may incur expenses that are directly attributable to providing the Deliverables by agreement (including without limitation travel, accommodation, equipment or other administrative expenses) (Expenses). If the Fees are agreed in the Work Order to exclude Expenses, the Client agrees to pay all properly incurred Expenses, provided that individual Expense items over $500 are approved by the Client prior to being incurred.
3.3 Impactology may increases its Fees and Expenses beyond any quoted or agreed amount where additional work is required from Impactology due to: (a) any breach of this Agreement by the Client; (b) any assumptions reasonably made by Impactology about the Client or its business not being entirely true; (c) any changes to the Client’s requirements; or (d) any delays caused by the Client; or (e) any failure by the Client to make its personnel available to receive the Services on the days specified as part of the Timetable (as set out in the Work Order).
3.4 Apart from where expressly stated to the contrary, all Fees and Expenses payable are expressed to be exclusive of GST (GST Exclusive Amount). The amount payable by the Client shall be increased on account of GST, so that after deduction of GST, Impactology receives no less than the GST Exclusive Amount.
4. TERM AND TERMINATION
4.1 This Agreement shall commence at the earliest of (a) the commencement of the provision of the Deliverables; or (b) any commencement date described in a Work Order.
4.2 If a Work Order specifies a particular Term over which the Deliverables shall be provided, then the Work Order will continue for that Term. If at the end of the Term the Deliverables continue to be provided by Impactology, then the Work Order shall continue thereafter until terminated by either party on no less than 14 days written notice to the other party.
4.3 If a Work Order does not specify a particular Term over which the Deliverables will be provided, then the Work Order shall automatically terminate at the conclusion of the provision of the Deliverables under that Work Order.
4.4 A party may terminate this Agreement by written notice to the other party if:
(a) there have been no active Work Orders in effect for more than 30 days;
(b) the other party is in material breach of this Agreement and fails to rectify the breach within 7 days following written notice from the non-defaulting party requiring rectification of the breach; or
(c) the other party is insolvent, bankrupt, or has an administrator, liquidator or receiver appointed over it or its assets.
4.5 Impactology may terminate a Work Order or this Agreement at any time on the provision of no less than 7 days written notice to the Client.
4.6 Termination of this Agreement will automatically terminate all active Work Orders then in existence.
4.7 On termination of this Agreement, or a Work Order, the Client shall pay Impactology all Fees and Expenses then outstanding, together with all work in progress incurred but not yet invoiced by Impactology for Deliverables or work provided hereunder.
4.8 Impactology may suspend the provision of the Deliverables during any period where the Client is in breach of this Agreement, or is overdue in the payment of any Fees or Expenses.
5. THIRD PARTY PRODUCTS
5.1 Impactology may from time to time recommend that the Client procure goods or services from a third party (Third Party Products) which are necessary for the Client to obtain the benefit of the Deliverables, and the Client agrees to do so. The Client agrees that unless incorporated into Impactology’ Fees and Expenses, that the Client shall be liable for the cost of all Third Party Products.
5.2 The Client agrees that Impactology shall not be liable for any failure of a Third Party Product and that Impactology’ sole liability in this regard is to assist the Client with obtaining support from the relevant supplier of the Third Party Product.
6. LIABILITY
6.1 Except as expressly set-out in this Agreement, Impactology provides the Deliverables on an “as is” basis and excludes any and all warranties, representations, implied terms and/or liability arising in connection with the Deliverables or this Agreement.
6.2 If Impactology provides any advice or recommendations as part of the Deliverables, then the Client agrees that (a) the advice or recommendations represent Impactology’ opinions based on the information provided by the Client; (b) the Client will review Impactology’ advice or recommendations and form its own opinions on whether it wishes to follow the advice or recommendations; (c) there is no guarantee or warranty of any particular outcome should the Client follow the advice or recommendations; and (d) Impactology’ shall have no liability to the Client in relation to such recommendations or advice, including in relation to any loss, cost, expense or damage which the Client suffers or incurs as a result of adopting such recommendations or advice.
6.3 In respect of any liability of Impactology which cannot be excluded in accordance with clauses 6.1 and 6.2, Impactology limits its liability to the Client (to the maximum extent permitted by law):
(a) under any applicable consumer guarantees in the Australian Consumer Law in relation to the supply of the Deliverables to either, at Impactology’ discretion, the supply of the relevant Deliverables again, a refund of the relevant Fees paid in respect of those Deliverables, or the payment of the cost of having those Deliverables supplied again; and
(b) for breach of agreement, negligence, breach of statutory duty or any other cause of action other than a breach of an applicable consumer guarantee (regardless of how that liability is caused), arising under this Agreement or related to any Deliverables, in aggregate to the total Fees paid by the Client for the relevant Deliverables.
6.4 Neither party will be liable for any consequential, collateral, special, incidental, indirect, exemplary or punitive damages, including, without limitation, loss of profits or revenue, loss of opportunity or loss or destruction of data, costs of cover, costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or the Deliverables.
7. INTELLECTUAL PROPERTY
7.1 Subject to clause 7.2, Impactology will at all times be the owner of the Intellectual Property Rights which subsist in or are created in the course of providing the Services and the Products (Services IP), and the Client hereby assigns to Impactology any and all Intellectual Property Rights which it has in respect of the Services IP.
7.2 Each party will retain ownership of their respective Intellectual Property Rights in their Background IP and nothing in this Agreement shall assign such Intellectual Property Rights to the other party.
7.3 The Client grants Impactology an irrevocable, worldwide, royalty free licence for the term of this Agreement, for Impactology to make any and all uses of the Client’s Background IP which could reasonably be considered necessary for Impactology to fulfil its obligations under this Agreement.
7.4 Subject to payment of Fees and Expenses in accordance with this Agreement, Impactology grants the Client a personal, non-exclusive and royalty-free licence to use the Services IP for its business purposes for a licence term specified in a Work Order (and if none is so specified then this licence will be for the period that the Services are being provided). The forgoing licence permits the Client to use the Services IP solely for the purposes of its business and only in conjunction with the Client’s use of the Services, and to sublicence its employees, subcontractors and customers to do the same. The forgoing licence does not permit the Client to operate a bureau service using the Services IP or to resell or distribute the Services IP to any person. Where the Services IP constitutes seminars, programmes or other educational or coaching related materials or know-how (Coaching Materials), the Client agrees that only those individual employees or consultants of the Client’s may use the Coaching Materials for their own personal use, and must otherwise not disseminate or copy the Coaching Materials, or seek to redeliver the relevant seminars or programmes to any person without Impactology’s express written approval.
7.5 The Client may only use the Products in the form they are provided and must not copy, alter, reproduce, distribute, sublicence or make any adaptations of the Products.
8. GENERAL
8.1 Confidentiality: Each party agrees to keep the terms of this Agreement confidential as well as any other information or materials of a confidential nature which are disclosed by one party to the other in relation to this Agreement or otherwise. The forgoing obligation of confidentiality shall not however apply to (a) information in the public domain (other than through a breach of this Agreement); (b) information which is required to be disclosed by law; or (c) information which is disclosed to a party’s legal or financial advisors for the purposes of seeking advice.
8.2 No employment: Nothing contained in this Agreement constitutes the relationship of joint venture, partnership, or employment between the parties and it is the parties’ express intention to deny such relationships.
8.3 Assignment and sub-contracting: Impactology may by written notice to the Client assign, transfer, subcontract or otherwise dispose of, in whole or in part, its rights under this Agreement. The Client must not assign or novate this Agreement without Impactology’ prior written consent.
8.4 Variation: This Agreement may only be amended or modified by a document in writing signed by the parties.
8.5 Special conditions: The parties shall be bound by any “special conditions” identified in a Work Order (if any) which shall override any inconsistent term of this Agreement.
8.6 Entire agreement: It is expressly acknowledged, by and between the parties, that the terms set out in this Agreement (including each Work Order) contain the entire agreement concluded between the parties, and that this Agreement supersedes any and all prior agreements, representations, or understandings between the parties, whether written or oral, in respect of the same subject matter.
8.7 Notices: Any notice or demand to be given or made under this Agreement must be in writing signed by a party’s authorised representative. A notice will be deemed to be received (a) in the case of a notice given by hand, on delivery; (b) in the case of a notice sent by pre-paid post, 5 days following the date of postage; and (c) in the case of a notice sent by email, upon the recipient or their mail server confirming receipt of the email.
8.8 Waiver: Any waiver of a right or remedy under this Agreement will only be valid if the waiver is given in writing and signed by the party giving the waiver.
8.9 Survival: Clauses 3, 5.2, 6, 7, 8.1 and 8.11 will continue in force notwithstanding the termination or expiration of a Work Order or this Agreement in its entirety for any reason.
8.10 Severance: If a provision of this Agreement or part thereof is unenforceable, then that provision (or relevant part) may be severed without affecting the enforceability of any other provision of this Agreement.
8.11 Governing law: This Agreement is governed by and must be construed in accordance with the laws of Victoria, Australia, and the parties irrevocably consent to the jurisdiction of the courts there.