TERMS OF TRADE: WHY X HOW CONSULTING
You, the Client (referred to as you/your)
Why X How Consulting (referred to as our/us/we)
Why X How Consulting prides ourselves on providing very specialised and personal business consulting services. Whether you are seeking to increase your cashflow or scale your business or prepare your business for sale, we can help you.
Our friendly team are specifically trained to care for the unique needs of our clients. We find it is the little things that make a big difference, so we will take the time to work with you to ensure your needs are met.
We are pleased to offer you our Services on the terms and conditions of this Agreement.
1. What you need to know about our Services
(a) We will visit your business and assess exactly what your business needs are, and work with you to develop a program or source services that fits with your schedule and needs.
(b) We will provide our own equipment (such as a laptop and phone) that may be required while on site to professionally perform the Services by us. Any additional equipment you deem necessary and choose to provide, will remain your property.
(c) Hygiene and safety are very important to us. We have completed the Covid-19 Infection Control Training Course and have supplied a copy of our certificate as a reference. We will take reasonable precautions to ensure your and our safety.
(d) We take pride in being accessible, and make a point of taking or return your call promptly so we can ensure your needs are met.
(a) The services in a Service Package will start on the Commencement Date nominated, and will end upon the earlier of completion of those particular services, or this Agreement is terminated.
(b) This Agreement applies to all current and future Services between the parties, unless the parties have agreed to update these terms in which case the terms of the new agreement will apply to Services agreed to after the date of the new agreement.
(c) During the term of this Agreement, we will not contract our Services to another business that is directly or indirectly in competition with your business in a manner that places us in conflict with our obligations to you under this Agreement.
(d) We will:
(i) provide the services described in the Service Package. If we are to work with you on-site at your business, it will be at the address set out in the Schedule. We are also available via telephone / video link;
(ii) provide our Services within the agreed time limits set out in the Schedule, which may be amended if circumstances require;
(iii) provide our Services in a professional manner to the required standards, and in the event that you are dissatisfied, we may reperform or amend the Services so that they meet the required standards;
(iv) comply with your business’ policies and procedures when working on-site with you; and
(v) act in good faith in our dealings with you and will not do anything to intentionally harm your business.
(e) If you require:
(i) a variation to the Service Package for any reason prior to our completing our service; or
(ii) additional services,
we may provide an updated or new Service Package (as the case may be) for performing the Services. Unless you agree to the amount in the Service Package provided under this clause, we will not be obliged to carry out the additional work or variation.
(f) You agree that our Services have been provided on the basis that you are the principal and we are a contractor. Any other relationship to you, including that of an employee, agent or partnership is denied.
(g) We are solely responsible for all remuneration, expenses, taxes, leave entitlements, superannuation, workers compensation, and other insurances for our employees.
3. Our prices and payment
(a) The Fees for our Services is as set out in the Service Package and is calculated by reference to the services and materials provided therein.
(b) We may charge interstate or long-distance Travelling Fees in addition to the price in subclause (a) above. Where you are required to pay us for Travelling Fees, they will be calculated in accordance with the costs of travel and set out in the Service Package.
(c) Invoices. We will issue invoices that explain what services have been provided, their cost and when payment is due.
(d) If You have an Accounts email address, our invoice will be submitted to the Accounts Manager email address for payment.
(e) We request prepayment for our Services. If we choose, in our sole discretion, to waive this requirement, this does not affect your requirement to pay our invoice in accordance with the terms on our invoice.
(f) If you are paying our invoices directly, payment can be made by:
(i) Stripe – You will receive a secure-link in your invoice which You can pay from Your smartphone.
(ii) Electronic Funds Transfer (EFT), to our nominated bank account or by cash deposit to our nominated bank account.
(g) If an invoice is not paid for any reason, we may put your Services on hold until we have received payment in full.
(h) You are not entitled to deduct or set-off any amount against any amounts owing to us.
(i) In the event you default in payment of an invoice, you shall indemnify us from any costs incurred by us in recovering the outstanding amount, including but not limited to solicitors’ fees, bank charges, and interest owing on the outstanding amount.
4. Intellectual Property
(a) You acknowledge and agree that we have spent considerable time and care developing our Intellectual Property, which is the core of our business and if our Intellectual Property is disclosed to third parties, this could cause substantial damage to our business.
(b) In consideration of you paying the fees for our Services, we grant to you an irrevocable non-exclusive licence to use our Intellectual Property, where that Intellectual Property is a right not capable of registration.
(c) If we have made modifications or improvements to our Intellectual Property for your benefit and they are commercially sensitive to your business, we agree not to disclose those modifications or improvements to a competing business that is the same or substantially similar to yours. These modifications or improvements remain our property and are subject to the licence in subclause (a).
(d) Any Intellectual Property referred to in subclause (a) and (b), whether or not it contains Intellectual Property rights capable of protection, will be, and remain, our (or our nominees) sole and exclusive property and you agree not to disclose our Intellectual Property with anyone not bound by similar restraints to this clause 4.
(e) You agree to indemnify us against all liabilities, costs and expenses which we may incur as a result of any breach of this clause by you, your employees, or contractors.
(f) Your obligations under this clause survive termination of this Agreement.
5. Our employees and subcontractors
(a) We require our employees and sub-contractors to strictly comply with our workplace health and safety systems.
(b) Where we use sub-contractors to provide any of the Services to you, we will be responsible to ensure that the sub-contractors engaged also comply with the matters set out in subclause (a) and:
(i) Do not by act or omission do anything that if done by us be breach any of these terms;
(ii) Have current and necessary insurances; and
(iii) Are paid in full for their services by us.
6. Our commitment to you
(a) Cooperation & Respect. We will work with you to provide Services that meet your needs and treat you with courtesy and respect at all times.
(b) Consultation as to Services. We:
(i) will consult you if decisions need to be made about how the Services are to be provided and apply any arrangements agreed with you.
(ii) will record any decisions as to how the Services are to be provided in the Schedule.
(c) Feedback / Issues. We will listen to your feedback and work with you to resolve any issues that arise quickly to allow the Services to be performed.
(d) Insurance. We will at all times have insurance (professional indemnity and public liability) that covers the Services provided to you, and if requested, we shall provide you with evidence of the currency of that insurance.
(e) Record Keeping. We will maintain clear and accurate records about the Services provided to you whilst this Agreement is ongoing.
(f) Privacy and Confidential Information.
(ii) We will not disclose any confidential information to any third party during the term of this Agreement or afterwards, unless we are required to do so by law.
(g) Contact Information. The contact details for us set out at cl 12 are accurate at the date we enter this Agreement with you. We will let you know in writing as soon as practicable if any contact details set out in this Agreement change.
(h) Review of the Services. We will review the Services provided under this Agreement with you or your authorised representative prior to the end of the engagement unless you or we require earlier review or extension of the engagement for any reason. If accepted by us, any changes will be recorded in writing.
7. Your Responsibilities
(a) Payment of Invoices. You will pay the invoices issued by us in connection with the Services provided in accordance with the requirements set out in clause 3 above.
(b) Cooperate with Us. You will work with us to ensure that the Services provided meet your needs and treat us with courtesy and respect. You acknowledge that the quality of our Services relies on accurate information and full disclosure from you, which you agree to provide to the best of your ability.
(c) Feedback/Issues. We encourage feedback by telephone or email. You will talk to us about any feedback, problems or issues you have with the Services being provided in a timely manner; and
(d) Contact Details. You will let us know if any contact details set out in this Agreement change as soon as practicable after the change is known to you.
(e) Notice to End Agreement. You will give us the notice required to end this Agreement as set out in the Termination section of this Agreement.
8. Ending this Agreement – Termination
(a) If you or we want to end this Agreement, a minimum of 30 days written notice must be given to the other party.
(b) If there is a serious breach of this agreement, the party not in breach may terminate this agreement immediately. Serious breaches may include but are not limited to:
(i) Abusing or assaulting the non-defaulting party’s employees or contractors;
(ii) Continually breaching the terms of this agreement, which is in the non-defaulting party’s reasonable opinion, incapable of rectification;
(iii) Taking action which is intended to or would reasonably be expected to cause harm to us or our reputation, or which would reasonably be expected to lead to unwanted or unfavorable publicity to us;
(iv) Bankruptcy or going into liquidation, or making any assignment arrangement or composition with creditors on the happening of the event;
(v) Being subject to a finding of guilt for a criminal or civil offence, other than an offence which, in the non-defaulting party’s opinion, does not affect the defaulting party’s ability to perform their duties;
(vi) A party in relation to the carrying out of this Agreement, commits an act of misconduct, fraud, or dishonesty or
(vii) Ceases business.
(c) If this Agreement ends for any reason, including termination by you or us, you will still need to pay for the Services that have been received and any work in progress.
(d) We will return to you any hardware, software, plant or equipment, of yours that is in our possession, together with all documents, plans, lists, inventions, and intellectual property (belonging to you, and not reserved to us under this Agreement).
9. Damages / Limitation of Liability
Except as expressly provided above, any statutory warranties that can be lawfully excluded are expressly excluded from this Agreement.
10. Dispute resolution
(a) General. If a dispute arises out of or relates to this agreement, including any dispute as to breach or termination of the agreement or as to any claim in tort, in equity or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.
(b) Notice specifying the nature of the dispute.
(i) The party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party to this agreement specifying the nature of the dispute.
(ii) On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.
(i) If the contractor and the principal do not agree within 7 days of receipt of the notice, or such further period as agreed in writing by them, as to:
(1) The dispute resolution technique and procedures to be adopted;
(2) The timetable for all steps in those procedures; and
(3) The selection and compensation of the independent person required for such technique,
(ii) then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of Queensland.
(iii) The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
If the mediation referred to above is not completed within four weeks of reference to a mediator then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
(e) Associated costs
The costs of the mediation will be borne equally by the parties.
11. Definitions and interpretation
(a) This Agreement is governed by the law of Queensland, and the parties submit to the non-exclusive jurisdiction of the courts of that state.
(b) In the interpretation of this Agreement:
(c) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(d) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders, and references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
(e) Grammatical forms of defined words or phrases have corresponding meanings;
(f) Parties must perform their obligations on the dates and times fixed by reference to the capital city of Queensland;
(g) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(h) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
(i) References to a party are intended to bind their executors, administrators and permitted transferees; and
(j) Obligations under this agreement affecting more than one party bind them jointly and each of them severally.
(k) In this agreement, the following terms have the following meanings unless inconsistent with the context:
Agreement means this agreement, and any invoices issued in relation to the Services.
Confidential Information means all confidential information, commercial secrets, trade secrets, confidential documents or materials (in any form) that belong to us that may be available or revealed to you in connection with this Agreement. The Confidential Information includes:
(i) the contents of the Documents;
(ii) the Know How
(iii) business or marketing plans;
(iv) the information, documents or materials that relate to the development of the customer or client base; and
(v) Intellectual Property,
but does not include information, documents or materials that are common property and available in the public domain.
Documents means any documents relating to operating a business including:
(i) systems, scripts and manuals;
(ii) any documents or written agreements in connection with the other Documents; and
(iii) any other documents or written agreements between the parties.
Intellectual Property Rights means all rights as conferred by law, equity and statute in relation to inventions, designs, patents, databases, trade marks, service marks, logos, get up, styles, circuit layouts, copyright, trade secrets and all other such rights, and all other “intellectual property” as that term is defined by Article 2 of the Convention establishing the World Intellectual Property Organization.
Know How includes the information and techniques relating to the System.
Services means any services provided by us in the Service Package, a variation to the Service Package, or a new Service Package.
System means any system developed for and in connection with the operation and marketing of the business as updated or enhanced from time to time, including the Standards.
Standards means the specifications, instructions, rules, policies and guidelines (in use from time to time).