Consulting and Services Agreement
This Agreement is made between:
Angela O’Leary of Angela O’Leary Pty Ltd ACN 44 136 722 293
1 PURPOSE OF THIS AGREEMENT:
1.1 The purpose of this document is to formalize agreement for the Services to be provide outlined in our Proposal on the terms set out in this Agreement (‘the Terms’).
1.2 The Client will be providing certain Confidential Information which is proprietary to the owner to enable the Consultant to provide the Services, which the Consultant agrees to keep confidential.
1.3 The Client agrees to make payment for the Services in accordance with the terms of this Agreement and the Proposal.
1.4 Any intellectual property which may be developed, written, designed, or provided during the performance of the Services will remain at all times with the Consultant as proprietary property.
1.5 The terms of this Agreement outline and govern the parties arrangement for these Services as follows:
2.1 “Confidential Information” means any written or oral information that is provided by or disclosed directly or indirectly through any means that is not already in the public domain, and may include information about business structures, methods, procedures, financial and personal information.
2.2 “Materials” means newsletters, reports, advertising, audio, promotional, literature, written documents, questionnaires, videos, specifications or other material which may be required to assist and enable the Services to be performed.
2.3 “Proposal” means the outline for consulting services provided to the Client prior to any Services being provided.
2.4 “Services” means the consulting services which may include budgeting, educational and training services, business startup, marketing, growth strategy and other similar services provided and outlined in the Proposal.
3.1 The Client appoints the Consultant for the Services as outlined in the Proposal. The Client accepts the Services and is bound by these Terms when the Client instructs the Consultant to proceed, by making a payment, or by confirming acceptance via email or other written means.
3.2 The Consultant agrees to provide the Services in a professional manner and in accordance with generally accepted industry practice and standards and will ensure any contractors or consultants or representatives that the Consultant may employ from time to time will have the relevant qualifications and are under the same standards requirements.
3.3 Any specific terms and requirements relating to the Services required by the Client will be agreed in writing and notified to the Consultant in advance.
3.4 Services may be provided face-to-face or via Skype or as agreed in the Proposal or otherwise in writing. The Client is responsible for ensuring they have the appropriate facilities available as agreed and nominated in the Proposal.
3.5 All sessions must be scheduled and agreed in advance by the Consultant including any sessions which are rescheduled due to unavailability of either party. The Services are non-transferrable and apply only for and to the Client as agreed in this Agreement. At no time may they be transferred to any other third party, group or entity.
4 WARRANTIES AND REFUNDS
4.1 Legislation may confer certain rights, warranties and guarantees and remedies relating to the provision of the Services which cannot be excluded, restricted or modified, including but not limited to the Australian Consumer Law (‘ACL’). At no time are these statutory rights sought to be excluded.
4.2 The Consultant represents and warrants:
(a) in providing the Services, they will comply with all law and industry standards;
(b) the work performed to provide the Services will be done to a high standard in accordance with best practice; and
(c) the scope of the Services will be limited to the description provided in this Agreement and the Proposal unless otherwise agreed in writing from time to time. Similar or equivalent Services may be substituted from time to time if, in the sole opinion of the Consultant, it would benefit the Client or be required to meet the terms of this Agreement.
4.3 The Client represents and warrants:
(a) they will provide all relevant information required for the Consultant to carry out the Services in a timely manner;
(b) they hold the relevant and required current insurances to protect the Consultant (where relevant) including against any third party claims.
4.4 The Client acknowledges and agrees that:
(a) results of the Services vary from individual to individual. For this reason, performance, progress and success of any particular Services is reliant on the Client and individual to meet their own requirements. The Consultant cannot and does not guarantee any particular or any results and the Client is solely responsible for their progress. If any time during the Services the Client feels their progress is not as expected, it is the responsibility of the Client to advise the Consultant immediately of any concerns in order to give the Consultant an opportunity to address and assist. The Consultant will use reasonable efforts to resolve the concerns, however at no time does the Consultant guarantee or warrant any increase or altered progress or performance;
(b) as the Consultant has blocked out specific time periods to provide the Services to the Client, any cancellation or termination and refund of Services would be to the detriment of the Consultant. For this reason, there are no refunds for change of mind or similar. Refunds are granted in very limited circumstances and in the sole discretion of the Consultant;
(c) in addition, any delay or late attendance to any scheduled sessions by the Client will finish at the nominated and agreed original time in order to not disadvantage other Clients that may be scheduled after the Client session. All sessions must finish on time at the originally scheduled time unless otherwise agreed by the Client and Consultant; and
(d) some of the Services may be provided in venues or locations that require the Client to travel to attend. In the event the Client is required to attend sessions outside their home, office or area, they are fully responsible for such travel costs associated. The Client should obtain travel insurance where appropriate to ensure they are covered in the event of any changes to sessions, medical emergencies or other unforeseen circumstances, including but not limited to cancellation of sessions, change of venue, change of date or time by the Consultant. At no time is the Consultant liable for any travel, accommodation or other costs, losses or damages that the Client incurs as a result of any cancellation, session changes or other unforeseen circumstances.
5.1 If at any time any aspect of the Services are not reasonably acceptable to the Client, or both parties disagree on the quality, substance, or the parties disagree for any reason on the Services, the Client will immediately notify the Consultant of any such reason, the specifics and will give a reasonable opportunity for the Consultant to respond and address any concerns. Feedback and discussion are important to the sessions and provision of the Services and it is up to the Client to provide such feedback in order to give the Consultant an opportunity to resolve any issue quickly and effectively.
5.2 If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both the Client and the Consultant. At no time will any communications or discussions be made public, this includes but is not limited to any social media websites of either party. Any public discussion or comments about either party are considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.
5.3 In the event of any dispute on the work, quality or ownership that cannot be resolved, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each of us agrees to pay our own costs.
The relationship under this Agreement is that of principal and independent contractor. This Agreement does not make either party a joint venturer, partner, employee or agent of the other. No act or omission of either party is to bind the other party except as expressly set out in this Agreement.
7 TERM AND OWNERSHIP OF INTELLECTUAL PROPERTY
This Agreement is for the period set out in the Proposal. All Services must be provided between the Commencement Date and the Final Date as set out and agreed in the Proposal. In the event not all Services have been provided before the Final Date, the remainder will be forfeited by the Client unless otherwise agreed in writing. It is up to the Client to ensure they arrange and are available for all sessions and for the Services to be provided in full between the Commencement Date and Final Date.
7.2 The confidentiality provisions survive the termination of this
Agreement remain until the Confidential Information becomes part of the public domain.
7.3 Ownership of Intellectual Property and Confidential Information: Materials and work may be provided to the Client from time to time during and to enable the provision of the Services. All materials and work is provided without warranties of any kind, both express and implied. Any designs, materials, analyses, processes, discussions and other intellectual property, both tangible and intangible, which is provided or may be developed as a result of or during the Services is and will remain the property of the Consultant at all times. No materials may be reproduced or used for any purpose other than the personal private use of the Client. At no time may it be reproduced and provided to third parties without the express written permission of the Consultant.
7.4 Release: From time to time the Consultant may make audio recordings of Client sessions. These will at no time be available to the public and will only be used for the Consultant or Client’s private or professional use. By signing up for the Services and agreeing to these Terms, the Client hereby grants the right to the Consultant to make such audio recordings. If the Client does not wish to have their sessions recorded, they must notify the Consultant in writing of their request.
8 INFORMATION PROVIDED TO PERFORM THE SERVICES
The Consultant agrees that they will:
(a) keep confidential and secure;
(b) not use directly or indirectly; and
(c) not disclose directly or indirectly,
this Agreement and all personal information relating to, arising under or acquired under or as a consequence of this Agreement and the Services, except:
(i) as required by law or any regulatory authority; or
(ii) with the Client’s express written consent.
8.2 The Consultant will not at any time disclose or allow access by any person or third party to any of the Confidential Information unless required to perform the Services in which case, the Consultant will ensure they are under the same duty of confidentiality as the Consultant is under this Agreement.
9 PAYMENT, PRIVACY AND DELIVERY
9.1 Services will only be provided once payment has been made. In the event of any late, overdue or unpaid invoice amounts, they will incur interest at a rate determined in accordance with the Penalty Interest Rates Act 1983.
9.2 In the event that the Client fails to pay any invoices in accordance with the terms of the Agreement or does not perform its obligations under this Agreement, the Consultant may refuse to continue to provide the Services and may terminate this Agreement immediately without notice. We may also commence proceedings to collect any outstanding debts owed.
9.4 By providing the Consultant with your payment and credit card details, the Client authorizes payment for the full Services. In the event the Client has chosen payments to be made on a recurring basis, the Client hereby authorizes such payments to be deducted by the Consultant until the full payment has been made under the Terms and in accordance with this Agreement.
9.5 Default: Failure to make a required payment when due under this Agreement shall constitute a material default under this Agreement.
9.6 All sessions or Services are non-transferrable. In addition, no sessions may include or be attended by any third parties unless agreed in advance by both Client and Consultant.
10 TERMINATION AND CANCELLATION
10.1 For any breach of any of the obligations of this Agreement, the person who has committed the breach will immediately remedy or rectify the breach promptly.
10.2 Termination may occur if the Consultant believes that the working relationship has broken down including a loss of confidence and trust; or for any other reason outside their control, which has the effect of compromising their ability to perform the Services. In the event of such termination by the Consultant, payment must be made up to the date of the last Services and any other monies paid in advance will be refunded to the Client.
10.3 In the event of any termination by the Client, payment for the full terms and all sessions of the Services becomes immediately due and payable, whether or not the sessions were used by the Client. The Client is liable for full payment of all unpaid sessions for the Services that were engaged in accordance with the Proposal.
10.4 Confidentiality survives and continues in the event of any dispute or termination and, in any event, after the delivery of the Services.
11 LIMITATION OF LIABILITY AND INDEMNITY
11.1 The Consultant and their representatives are in no way liable for any loss or damages whether direct, indirect or consequential which the Client may suffer in reliance directly or indirectly on all or any part of the Services. The Client shall indemnify and hold harmless the Consultant from and against any and all actions, claims, liabilities, proceedings or demands which may be brought against them in respect of any loss, death, injury, illness or damage (whether personal or property and including reasonable legal fees and expenses).
11.2 The liability of the Consultant is governed solely by the ACL and these Terms. Any other conditions and warranties which may be implied by custom, law or statute are expressly excluded.
11.3 The Client acknowledges and agrees that they use the Services at their own risk. In engaging the Services, the Client agrees they are liable for and agrees to indemnify and hold harmless the Consultant for and against any and all claims, liabilities, actions and expenses which may result either directly or indirectly from a breach of these Terms, misuse of the Services or in connection with any of the Services.
11.4 Some of the Services may involve personal and financial discussions. This information and the Services are not substitutes for and should not replace discussions with qualified professionals including but not limited to legal, financial investment or financial planner services. In the event the Client requires such advice and services, the Client must seek the services of a qualified professional in this area. The Consultant cannot be held responsible for how the Client may interpret, understand or take action based on or as a result of the Client’s participation in any of the Services. The Client understands that they therefore engage the Services at their own risk. Any action the Client may take based on financial information and discussions that may arise during the course of the Services may result in consequences for which the Consultant is in no way responsible. By engaging the Consultant, the Client agrees they alone are responsible for all outcomes and achievements by participating in the Services and the Consultant cannot guarantee nor be responsible for any results, howsoever incurred.
11.5 In any case, the Consultant’s liability is limited at all times to amount of the last invoice fees paid by the Client.
12 GOVERNING LAW
This Agreement is governed by the laws from time to time in force in South Australia. Both parties agree to unconditionally submit to the non-exclusive jurisdiction of the Courts of South Australia for determining any dispute concerning this Agreement.