Terms of Engagement (Agreement)
These standard terms and conditions (Terms and Conditions) apply to all services that we perform for the Client that are described in the Statement of Work (Services).
These Terms and Conditions, including the Statement of Work, comprise the entire agreement (Agreement) between Specialisterne and the Client.
use all reasonable commercial efforts to complete the Services within the agreed time;
perform the Services with due care, competence and diligence, however the quality of Specialisterne’ Services will depend on input from the Client;
provide the personnel required to fulfil the Services; and
Specialisterne reserves the right to substitute new personnel where any assigned personnel become unavailable or additional personnel are required to complete the Services.
Specialisterne agrees to discuss the appointment of new or additional personnel pursuant to clause 2.2 with the Client prior to their appointment.
The Client’s responsibilities
The Client agrees to instruct Specialisterne and provide each of the following as reasonably required to perform the Services:
information - Specialisterne is entitled to rely on the accuracy of the Client supplied information without independently verifying it. Specialisterne may request the Client to provide periodic data and information for the purposes of gathering evidence to support impact and outcomes. The Client supplied information includes information that is supplied by the Client or the Client’s representatives or advisers;
access - to files, tools, records and information technology systems, to premises and to people with relevant skills and experience;
resources - the Client agrees to provide adequate resources including internal project lead and point of contact to ensure timely approval, development and sign-off of all reports, program materials and other deliverables; and
advertising and promotional materials – the partnership will include development and publication of promotional and marketing materials arising from the program to promote awareness. The initial advertisement to attract candidates will be approved by the Client (including logo). Should the Client have any objection to having their logos or program information used in future publication, marketing or awareness raising the Client should notify Specialisterne.
Any advertising, media or promotion conducted by the Client either internal or external facing specific to the activities with Specialisterne must be approved in advance with Specialisterne and acknowledge Specialisterne’s involvement and role in the relation to the program or activity.
Changes and delays
The Client may request a change to the Services (Change) including, without limitation:
a) a Change to the scope of the Services including any resulting price variation; or
b) a Change in the prioritisation or manner in which Specialisterne is performing the Services.
Requests for Change must be in writing.
Upon receiving the Client’s written request for a Change, Specialisterne will prepare a proposed variation to the Schedule (Variation). Within 7 days of receipt of a Variation the Client must either:
reject the Variation;
approve the Variation; or
propose amendments to the Variation.
Specialisterne will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control - including but not limited to the untimely performance by the Client of its obligations.
Fees and expenses
The Client must pay Specialisterne’ fees (Fees) and disbursements, as set out in the Statement of Work and Pricing – Fee Payment Schedule (Appendix 1), or as revised by any Variation, within 30 days after receipt of a valid Tax Invoice (Due Date).
Unless the invoice is in dispute, Specialisterne reserves the right to refrain from completing any work for the Client until all outstanding invoices are paid in full.
If the Client disputes any item contained in an invoice, the Client must provide Specialisterne notice within the 14 days of receipt of the relevant invoice and pay on time any amounts not in dispute.
During and after termination of this Agreement, each Party must:
keep all Confidential Information strictly confidential and not disclose it to any third party without the other Party’s prior written consent;
not copy or make available Confidential Information to any person other than to those of its officers, employees or subcontractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;
only use Confidential Information for the purposes of performing its obligations under this Agreement; and
on termination of this Agreement, or on request at any time by the other Party, immediately return to the Party or permanently delete or destroy, as the Party directs, all copies or records of Confidential Information in the Party's possession or control.
The confidentiality obligations in clause 6.1 do not apply to information:
that is or becomes in the public domain (except as a result of breach of this Agreement by a Party);
that is obtained legally by a Party from a third party without any restriction of non-disclosure;
that a Party can prove by prior written record was in the possession of it without restriction in relation to disclosure before the date of receipt from the other Party; or
required to be disclosed by a Party by law or rule or regulation of a stock exchange.
Intellectual property rights
Nothing in this Agreement affects the Intellectual Property Rights of either Party that existed prior to the commencement of this Agreement.
All rights or title to or interest in any Intellectual Property Rights created by Specialisterne, its employees, agents or sub-contractors either independently or in connection with this Agreement (including without limitation any future Intellectual Property Rights) will vest immediately on their creation with Specialisterne.
Specialisterne grants to the Client a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to use any Intellectual Property Rights created or developed by or on behalf of Specialisterne in connection with this Agreement including any Intellectual Property Rights that are sub-licensable or transferrable.
The Client acknowledges that Specialisterne owns its knowledge, experience and know-how developed in the course of performing the Services. Nothing in this Agreement will restrict Specialisterne from:
the use of any ideas, concepts, know-how or techniques which either party, individually or jointly, develops or discloses under this Agreement; or
developing materials for itself or for others or providing services that are competitive with any Intellectual Property Rights created as a result of the Services, irrespective of their similarity to the Intellectual Property Rights created by Specialisterne under this Agreement.
Without prejudicing any rights conferred by this Agreement, either party shall be entitled to terminate this Agreement immediately by notice in writing:
if the other Party has committed a material breach of this Agreement and fails to remedy the breach within 45 days after receipt of written notice requesting that such material breach be rectified or in the case where the breach relates of failure to pay an invoice, within 14 days after receipt of written notice requesting payment; or
if a Party becomes Insolvent, to the extent permitted by law.
Governing law & jurisdiction
This Agreement is governed by the laws of Victoria. Both the Client and Specialisterne irrevocably submit to the non-exclusive jurisdiction of the courts in the State of Victoria.
Severance & survival
If any provision of this Agreement is found to be illegal, unenforceable or otherwise invalid then, despite that invalidity, this Agreement will remain in full force and effect, and that provision will be substituted by a valid one which in its economic effect comes so close to the invalid provision that it can be reasonably assumed that the parties would have contracted also with the substituted provision, and if that is not possible the provision will be deemed to be deleted.
Provisions of this Agreement that are capable of having effect will survive its termination.
Specialisterne will provide the Services as an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture or other relationship between the Parties.
Escalation and dispute resolution
Any dispute that may arise concerning this Agreement shall in the first instance be referred to the Parties’ respective Project Directors for discussion and resolution. If the matter is not resolved at this level, the matter shall be referred to the next level of the other Party’s management and Specialisterne CEO who must meet within two weeks to attempt to resolve the matter. If the unresolved dispute is having a serious effect on the Services, the Parties will use reasonable commercial endeavours to reduce the elapsed time in completing the process.
If the matter cannot be resolved through the escalation process in clause 12.1, the Parties will submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute will be given 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 according to 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 is given pursuant to this clause , the mediation will terminate.
Specialisterne may perform the Services with its own personnel or any of its affiliates or with sub-contractors. Specialisterne shall be solely responsible for the performance of the Services and all other responsibilities under this Agreement.
The Client authorises Specialisterne to make public reference to the Client’s selection of the Specialisterne services and the nature of the Services provided.
Any advertising, media or promotion conducted by the Client specific to the activities with Specialisterne must fully acknowledge Specialisterne’s involvement and role in relation to the Services or activity.
This Agreement comprises the entire agreement between the Parties and supersedes any prior understandings, representations or agreements.
Interpretation and definitions
In this Agreement, the following rules apply, unless the document otherwise requires:
a word suggesting the singular includes the plural and vice versa;
a word suggesting a gender includes all genders;
a reference to "includes" or "including" means without limitation unless the contrary intention appears;
a reference to monetary units is to units of Australian currency;
headings are for ease of reference only and do not affect the interpretation of the Agreement;
where a term is defined in the Agreement, another part of speech or grammatical form of that term has a corresponding meaning; and
no rule of construction will apply in the interpretation of the Agreement to the disadvantage of one Party on the basis that that Party put forward or drafted the Agreement or any part of it.
In this Agreement:
Confidential Information means any and all non-public, proprietary or other confidential information that is disclosed by a party (disclosing party) to the other party (receiving party) including the existence and terms of this Agreement but excluding any information that the receiving party can demonstrate:
is independently developed without reference to the disclosed information;
is independently received from a source other than the disclosing party without any restriction of non-disclosure;
becomes public knowledge through no fault of the receiving party;
is in the public domain at the time the receiving party receives the disclosed information; or
is required to be disclosed by the receiving party by applicable law, or mandatory direction of a relevant government agency, or mandatory rule or regulation of a stock exchange, provided that the receiving party has to the extent possible consulted with the disclosing party as to the form and content of the disclosure.
Insolvent in relation to a Party means:
the passing by that Party of a resolution for winding up or a winding-up order being made against it or going into administration; or
a receiver, receiver and manager, or administrator is appointed; or
the Party is unable to pay its debts within the meaning of section 95A of the Corporations Act or it ceases or threatens to cease to carry on its business or enters into a composition with its creditors.
Intellectual Property Rights means all intellectual property rights in Australia and throughout the world, including without limitation patents, copyright, registered designs, trade or service marks, trade, business or company names and any right to have confidential information kept confidential, trade secrets, ideas, concepts, materials, know-how and techniques.
Party means each of Specialisterne and the Client and Parties means both of them.