Who are we?
In these terms ‘we’, ‘us’, ‘Advisor’, and ‘Coach’ means the Advisor or Advisors named in the proposal document describing the scope of the services that we have agreed to provide to you.
Application of these terms of engagement
These terms of engagement (‘terms’) are the terms on which we provide services to you. These terms apply whenever you return a signed proposal documents to us or otherwise confirm your acceptance of a proposal document (e.g. by email or fax).
Each of our proposal documents set out the services we will provide to you and, together with these terms, bind both parties as a separate contract (the contract) for the services specified in the relevant proposal document. The proposal document may take a number of forms, but it typically is an engagement or Services Letter or a Program. To the extent that there is any inconsistency between these terms and a proposal document, the proposal document prevails.
The contract applies whenever you ask us to provide services to you, and overrides any other terms and conditions unless both parties agree to those other terms and conditions in writing.
We provide the services set out in each proposal document using reasonable care and skill, and in an efficient and timely manner and in accordance with all applicable laws. Unless otherwise stated in a proposal document, our services are provided to you for your benefit, and must not be disclosed to, or relied on by, any other party.
Conflicts of Interest
We warrant that, to the best of our knowledge, information and belief, at the date of these terms, no conflict of interest exists or is likely to arise in the performance of our obligations under these terms. We will inform you if any potential conflict of interest arises during the term of the engagement.
Details of the fees payable by you for our services are set out in the proposal document which relates to those services. You must pay those fees promptly. Payment methods include Electronic Funds Transfer to an account nominated by us from time to time. Our payment terms on invoice are fourteen (14) days.
Fees payable by you are exclusive of any transfer fees or exchange rate costs that may be incurred in your payment. Unless expressly noted, our fees are the net amount delivered to our nominated bank account and any additional transfer costs are your responsibility.
You must give us the access to your business that we need to properly provide services to you. A proposal document may set out more details about access, but we almost always need access to your premises, books and records and personnel, and sometimes access to information technology systems and your other advisors. In providing services we rely on the information and material you provide to us without independently verifying it. You must keep us informed of any developments (such as a change to information we have received) that a reasonable person would consider is likely to impact on our services.
Where we provide services at your premises you must ensure that:
- the premises comply with all occupational health and safety laws, and any relevant standards; and
- our personnel are covered by an appropriate public liability insurance policy.
While we provide services to you, it is likely that we will each obtain, be exposed to or have access to information and materials that are proprietary or confidential to the other party (‘confidential information’). We each agree to hold confidential information of the other party in strict confidence, and not to disclose that confidential information to any person other than employees, officers, agents and contractors who are required to receive and consider the confidential information to enable our services to be performed.
These obligations of confidentiality do not apply where:
- the other party has given prior written authority to disclose the confidential information;
- the confidential information has become public knowledge unless this is as a result of a breach of these obligations; or
- a party is obliged by law to disclose the confidential information.
Limitation of liability
Any recommendations we give you as part of providing services to you are based on the information and materials provided by you without verification by us. You acknowledge and agree that:
- we give no representation or guarantee as to the profitability, share price, turnover, growth or other aspects of your business;
- the contract sets out the only terms and communications that govern our relationship, and if we have made any other statements or representations that are important to you, you should ensure that they are expressly set out in the proposal document before signature; and
- subject to the point below, all other conditions, terms, representations and warranties (whether express or implied by law) in respect of the supply of any advice, recommendations, information or services which may be binding on us are excluded;
- in the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) (the Act) nothing contained in this agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon you pursuant to the Act, our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under the Act.
You agree that our liability for any loss or damage suffered by you (whether direct, indirect, or consequential) in connection with the contract, including (without limitation) liability for any negligent act or omission or misrepresentation of the Advisor or any of its officers, employees or agents, shall be limited to the fees paid to us during the 12 month period before our contract ended, and you agree to release us from all claims arising in connection with the services to the extent such claims exceed those fees.
You should seek the advice of your other business advisers in areas such as tax, accounting and law regarding the implementation of your business strategies. You acknowledge that we do not provide advice in these areas.
You acknowledge and agree that the above provisions limiting and excluding our liability to you are fair and reasonable having regard to the fees payable to us, the scope of the duties we are undertaking and the cost and availability of insurance.
Unless GST is expressly included, all amounts expressed to be payable for any supply made under or in connection with this contract do not include GST.
To the extent that any supply under or made in connection with the engagement is a taxable supply under the A New Tax System (Goods and Services Tax) Act 1999, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.
The contract may be terminated at any time by either party giving the other thirty (30) days’ notice in writing.
Either party may terminate this contract immediately by written notice to the other party if:
- the other party breaches the terms of this contract provided that, if the breach is capable of remedy the other party has failed to remedy that breach within a reasonable period (being not less than 2 business days) after receiving written notice requiring it to do so; or
- the other party becomes subject to any form of bankruptcy or insolvency administration.
On termination of this contract, you will be liable only for fees incurred prior to the date of termination.
No term or provision in the contract will be varied or modified by any prior or subsequent statement, conduct or act of any party. An amendment or variation to the contract is not effective unless it is in writing and signed by the parties.
If anything in the contract is unenforceable, illegal or void then it is severed and the rest of the contract remains in force.
The engagement does not create or evidence any form of employment or partnership or a fiduciary relationship of principal and agent between the parties.
Law and jurisdiction
The engagement shall be governed by and construed in accordance with laws of Queensland and each of the parties to this agreement submits to the non-exclusive jurisdiction of the courts of Queensland and of the Commonwealth of Australia and agrees that any lawsuit must be heard in those courts.