Terms & conditions
1. PROVISION OF THE SERVICES
(a) Parties: These Terms are between FRANCHISE READY PTY LTD (ABN 67 602 038 657), its successors and assignees (referred to as “the Company”, “we”, “us” or “our”) and the person, organisation or entity described in the Proposal (referred to as “the Client” or “you”). These Terms apply to all Services provided by the Company to the Client.
(b) Acceptance: The Client has requested the Services set out in the Proposal. The Client accepts this Agreement by:
(i) signing and returning the Proposal;
(ii) confirming by email or verbally that the Client accepts the Proposal;
(iii) accepting the Proposal online;
(iv) allowing the Company to proceed with the Services; or
(v) making part or full payment for the Services.
(c) Deposit: If the Proposal indicates that the Company requires a Deposit, the Company may not commence performing the Services (in the Company’s absolute discretion) until the Client has paid the Deposit or the first instalment of the Company’s Fee.
(d) Services: The Company shall provide and perform the Services on the terms and conditions of this Agreement and will do so:
(i) in compliance with all applicable laws, regulations, codes of practice and professional standards;
(ii) with reasonable skill and care;
(iii) in accordance with the terms of this Agreement, including the timescales specified in the Proposal or any Statement of Works;
(iv) in accordance with good professional practice.
(e) The Company reserves the right to refuse any request that the Company deem inappropriate, unreasonable or illegal.
(f) The Company may provide the Services to the Client using the Company’s employees, contractors and third party providers, and they are included in this Agreement.
(g) When you engage third parties that are neither our employees nor contractors we have directly appointed, their services or products fall under your oversight. We bear no liability for the outcomes or quality of the services or products provided by these independent third parties..
2. PERSONNEL
(a) The Company shall use its reasonable endeavours to ensure that the same personnel provide the Services in order to maintain consistency and build a relationship with the Client.
(b) The Company shall use its reasonable endeavours to ensure that its personnel comply with the Client’s site regulations (notified to it in writing) when the Company’s personnel are on the Client’s premises.
(c) The Client shall not at any time during the term of this Agreement or for a period of 6 months following its expiry or termination employ or solicit for employment or engage on any basis any member of the Company’s personnel (whether employed or engaged on some other basis by the Company).
3. OBLIGATIONS OF THE CLIENT
The Client warrants that:
(a) there are no legal restrictions preventing the Client from agreeing to this Agreement;
(b) they will cooperate with the Company and provide the Company with information and access to such facilities and personnel that’s necessary to enable the Company to perform the Services as requested from time to time, in a timely manner;
(c) the information the Client provides to the Company is true, correct and complete;
(d) they will not infringe any third party rights in working with the Company and receiving the Services;
(e) they will inform the Company if the Client has reasonable concerns relating to the Company’s provision of Services under this Agreement, with the aim that the parties will use all reasonable efforts to resolve any concerns; (f) they are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at the Client’s cost, and for providing the Company with the necessary consents, licences and permissions;
(g) they shall make such decisions and provide such instructions as the Company shall require and at the time that the Company requires to enable the Company to provide the Services;
(h) they acknowledge that the Company’s ability to provide the Services and to meet any timeframe agreed for the provision of the Services is dependent on the Client providing that information and access and providing those decisions and instructions at the times required by the Company;
4. THE COMPANY’S INTELLECTUAL PROPERTY
(a) The Company owns the Intellectual Property rights in:
(i) the Company’s pre-existing Intellectual Property, including but not limited to copyright which subsists in all creative and literary works incorporated into the Company’s pre-existing Intellectual Property; and
(ii) Intellectual Property that the Company creates during the course of the Services, including but not limited to copyright which subsists in all creative and literary works in all Intellectual Property that the Company create during the course of the Services; unless the Company assigns or transfers this to the Client. This Intellectual Property is protected by Australian and international laws.
(b) Nothing in this Agreement constitutes an assignment or transfer of the Company’s Intellectual Property rights, or a right to use the Company’s Intellectual Property, whether registered or unregistered, except as stated in this Agreement or with the Company’s written permission.
(c) The Client must not breach the Company’s Intellectual Property rights by, including but not limited to:
(i) altering or modifying the Company’s Intellectual Property;
(ii) creating derivative works from the Intellectual Property; or
(iii) using the Company’s Intellectual Property for commercial purposes such as on-sale to third parties.
(d) This clause will survive the termination of this Agreement.
5. THE CLIENT’S INTELLECTUAL PROPERTY AND MORAL RIGHTS
(a) The Client agrees to provide information including any Intellectual Property to the Company to enable the Company to provide the Services. The Client:
(i) warrants that the Client has all necessary rights to provide the Intellectual Property to the Company;
(ii) grants the Company a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way the Company require to provide the Services to the Client; and
(iii) consents to any act or omission which would otherwise constitute an infringement of the Client’s Moral Rights.
(b) If the Client (or any employee or agent) has Moral Rights in any Intellectual Property that the Client provides to the Company, the Client:
(i) irrevocably consents to any amendment of the Intellectual Property for the purposes of the Company providing Services to the Client and to the Company using or applying the Intellectual Property for the purposes of providing Services to the Client without any attribution of authorship;
(ii) agrees that the Client’s consent extends to acts and omissions of any of the Company’s licensees and successors in title; and
(iii) agrees that the Client’s consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements.
(c) This clause will survive the termination of this Agreement
6. CONFIDENTIALITY
(a) The Company and the Client may during the course of this Agreement and in connection with the Services obtain information relating to the other party which is not made available generally by that other party (“Confidential Information”).
(b) The receiving party shall:
(i) keep all Confidential Information confidential and not disclose it to any person (save as required by law); and
(ii) use the Confidential Information only for the purpose for which it was provided and for no other purpose.
(c) These obligations do not apply to Confidential Information that:
(i) is authorised to be disclosed;
(ii) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement;
(iii) is received from a third party, except where there has been a breach of confidence; or
(iv) must be disclosed by law or by a regulatory authority including under subpoena.
(d) This clause will survive the termination of this Agreement.
7. FEES
(a) The Company shall charge and the Client shall pay the Fees.
(b) The Company may increase those Fees on giving not less than two month’s written notice to the Client.
(c) Any sums stated in this Agreement (including in the Proposal and in any Statement of Works) are expressed exclusive of GST and all other taxes which, where applicable, will be added and payable by the Client in addition.
(d) The Client shall in addition reimburse the Company for expenses including those that are specified in the Proposal or the relevant Statement of Works provided they are reasonable, properly incurred and pre-approved by the Client.
8. PAYMENT
(a) The Company shall invoice the Client on the basis set out in the Proposal or in the relevant Statement of Works.
(b) The Client shall pay all invoices by the payment date set out on the Invoice. For clarity, this will generally be 50% prior to the commencement of work and 50 % prior to submission of the suite of tools.
(c) If the Client does not pay any invoice by the due date for payment the Company may, without prejudice to any other rights and remedies that it may have:
(i) suspend provision of the Services until payment in full including any interest is received;
(ii) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date; and
(iii) If invoices are unpaid after the payment date, the Company have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to the Company at the Client’s expense.
(iv) report bad debts to independent credit data agencies.
(d) The Client must pay all invoices in full without any set-off or deduction.
(e) Where the Services provided are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with this Agreement or any claim by the Client in respect of any one or more instalment shall not entitle the Client to treat the Contract as a whole as repudiated.
9. DURATION
This Agreement shall commence on the date stated at the beginning and shall continue in force, subject to early termination in accordance with the next following clause, until terminated by either party giving to the other not less than two months’ notice in writing, such notice to expire at any time.
10. TERMINATION
(a) Either party may terminate this Agreement immediately on notice to the other party if that other party:
(i) is in material breach of any of the terms of this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 10 Business Days of service of notice specifying the breach and requiring it to be remedied;
(b) The Company may terminate this Agreement immediately, at the Company’s sole discretion, if:
(i) you commit a non-remediable breach of these Terms;
(ii) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(iii) we, acting reasonably, consider that our working relationship has broken down including a loss of confidence and trust;
(iv) for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe; or
(v) you fail to pay an invoice by the due date.
(c) The Client may terminate these Terms immediately upon written notice to us if:
(i) The Company commit a non-remediable breach of these Terms; or
(ii) you, acting reasonably, consider that our working relationship has broken down including a loss of confidence or trust.
11. CONSEQUENCES OF TERMINATION
(a) Termination under clause 10 or clause 11 may be in respect of any individual Proposal or Statement of Works or in respect of this Agreement including all Proposals or Statements of Works.
(b) On termination of this Agreement the Client agrees that any Deposit or payments made are not refundable, and the Client is to pay for all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to the Client.
(c) On termination of this Agreement for any reason and at the end of the provision of the Services, the Company shall return all property, equipment, documentation and other things provided to it by the Client in connection with the provision of the Services.
(d) Termination of this Agreement or any Statement of Works shall not affect any right or remedy which has accrued due at the time of termination.
12. INSOLVENCY
(a) If either Party:
(i) being a person, becomes bankrupt or makes an assignment of its estate for the benefit of its creditors;
(ii) being a company, becomes insolvent, has a liquidator, provisional liquidator, administrator or receiver appointed or takes or has taken or instituted against it any action which may result in the liquidation of the company or if it enters into any Subcontract with its creditors,
the other Party may, without issuing a notice to show cause, terminate the Agreement by written notice.
13. FORCE MAJEURE
(a) Neither party shall have any liability for any failure to perform or delay in performing any of its obligations under this Agreement if and to the extent that such failure or delay is caused by reasons, circumstances or events beyond the reasonable control of that party including but not limited to fire, flood, war, civil unrest etc.
(b) If a party is affected by any circumstance or event of the type described in clause 13(a), that party shall notify the other party as soon as reasonably practicable and the parties shall each use all reasonable endeavours to minimise the impact on the obligations that are affected.
14. PERSONAL AGREEMENT
(a) This Agreement is personal to the Company and the Client and neither of them shall assign any of their rights under this Agreement without the prior written consent of the other.
(b) The parties do not intend any person who is not a party to this Agreement to have any rights under it.
15. ENTIRE AGREEMENT
This Agreement (together with any Proposal or Statements of Works) constitutes the complete and exclusive agreement between the parties in respect of the subject matter to which it relates and supersedes all prior correspondence, agreements and understandings.
16. STATUS
The Company and the Client are each independent contractors and nothing contained in this Agreement shall or shall be capable of creating or constituting between them any partnership or joint venture or any relationship of employment or agency.
17. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
(a) Service Standard: The Company will provide the Services with due care and skill, the Services will be fit for the purpose that the Company advertise, and the Company will supply the Services within a reasonable time.
(b) ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer the Client with rights, warranties, guarantees and remedies relating to the provision of Services by us to the Client which cannot be excluded, restricted or modified (Statutory Rights).
(c) Statutory Rights: Nothing in this Agreement excludes the Client’s Statutory Rights as a consumer under the ACL. The Client agree that the Company’s liability for the Services is governed solely by the ACL and this Agreement.
(d) Liability:
(i) Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, its employees, agents or sub-contractors, or for fraud.
(ii) Subject to clause 17(d), the Company shall have no liability to the Client in connection with this Agreement for any loss of profits, loss of revenue, loss of business, loss of contract, loss of goodwill, loss of data or failure to make anticipated savings or any indirect or consequential loss, however arising, including under contract, tort including negligence, in equity, under statute or otherwise.
(iii) Subject to clauses 17(d) and 17(d)(ii) the Company’s total liability to the Client for all damages in connection with the Services will not exceed the price paid by the Client under this Agreement and pursuant to the Proposal for the 12 month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.
(e) Warranties: Except for the Client’s Statutory Rights, the Company exclude all express and implied warranties representations and guarantees and all material and work is provided to the Client without warranties, representations and guarantees of any kind.
(f) Delay: Where the provision of Services depends on the Client’s information or response, the Company have no liability for a failure to perform the Services, where it is affected by the Client’s delay in response or supply of incomplete or incorrect information.
(g) Referrals: The Company may provide the Client with contact details of third party specialists. This is not a recommendation by us for the Client to seek their advice or to use their services. The Company makes no representation or warranty about the third party advice or provision of services, and the Company disclaims all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.
(h) Availability: To the extent permitted by law, the Company excludes liability for:
(i) the Services being unavailable; and
(ii) any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by the Client or made against you, arising out of or in connection with the Client’s inability to access or use the Services or the late supply of Services, even if the Company were expressly advised of the likelihood of such loss or damage.
(i) Disclaimers: To the extent permitted by law the Company disclaims all responsibility and liability for:
(i) products the Client purchases from a third party;
(ii) any guaranteed results from participating in the Services;
(j) Publicity: You consent to us stating that we provided Services to you, including but not limited to taking photographs/videos of our work and mentioning you on our website, social media platforms and in our promotional material, unless you give us written notice that you withdraw your consent in this regard.
18. NOTICES
(a) Any notices that are required under this Agreement shall be in writing and shall be served on the relevant party at its registered office address.
(b) Notices may be served by:
(i) personal delivery, in which case they shall be deemed to be served when delivered; or
(ii) first class pre-paid post, in which case they shall be deemed to be served on the second Business Day after the day of posting.
(iii) email to the managing director, CEO or Principal of the business.
19. RESOLUTION OF DISPUTES
(a) If any differences or disputes arise between the Company and the Client in connection with this Agreement, they shall use all reasonable endeavours to resolve them by discussions between themselves, escalating the issues through their respective management structures up to their chief executive officers if necessary.
(b) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(c) If the matter cannot be resolved by discussion, both parties agree to agree to have the matter mediated through the NSW Small Business Commission.
20. CHANGES, VARIATIONS AND WAIVER
(a) If either party wishes to propose a change to the Services or any other provision of this Agreement, that party shall inform the other party of the proposed change and the parties shall work together to determine whether they are willing and able to agree the terms that are necessary to implement the change.
(b) This Agreement may only be varied or any right under this Agreement waived by a written document signed by authorised representatives of both parties.
(c) The Company have discretion as to whether the Company makes the variation. If the Company can perform the variation, the Company will inform the Client of the Fee, and if the Client agrees, the Company will invoice the Client. If the Company is unable to accommodate a Variation requested by you, the Company may consult with the Client to find a feasible adjustment. Should a mutually agreeable solution not be reached, we reserve the right to invoice for Services performed to date and terminate these Terms.
(d) If a party does not on any occasion insist on the strict observance or performance of any rights under or of any provision of this Agreement, that will not amount to a waiver of those rights or that provision.
21. SEVERABILITY
(a) To the extent permitted by law, if any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable..
22. PRIVACY
Both parties will comply with all applicable requirements of the Privacy Act (1988).
23. LAW AND JURISDICTION
This Agreement and everything arising in connection with it, including non-contractual matters, shall be governed by Australian Law and the parties submit to the exclusive jurisdiction of the State of NSW, Australia.
23.1 Definitions
In this Agreement, unless the context otherwise requires the following words and expressions have the following meanings:
Agreement means this Consultancy Service Agreement including the Terms and each and every Proposal or Statement of Works;
Business Day means a day other than a Saturday, Sunday or bank or public holiday in New South Wales.
Confidential Information includes confidential information about you, the Client’s credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as "confidential".
Deliverables means the outputs from the provision of the Services including those described in the Proposal or in any Statement of Works.
Deposit means (if any) set out in the Proposal.
Fees are set out in the Proposal.
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database right, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world.
Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
Proposal means the proposal to which this Agreement are attached.
Services means the services to be provided by the Company as specified in the Proposal or in any Statement of Works;
Statement of Works means a statement agreed between the Company and the Client from time to time specifying works to be carried out by and Deliverables to be provided by the Company.
24. INTERPRETATION
(a) Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
(b) The headings in this Agreement are for convenience only and shall not affect its interpretation.
(c) Any reference to a clause or Proposal shall be construed as a reference to a clause of or schedule to this Agreement unless expressly stated to the contrary.
(d) Any reference to a statute or statutory provision is to it as from time to time in force as amended or re-enacted.
(e) Use of the word “including” is without prejudice to the generality.
