* If you wish to engage TrinityP3 to provide the Services set out in this Proposal, we will provide you with our terms and conditions which are to be read in conjunction with the Proposal and together form one singular and binding Agreement between the parties.
TrinityP3 Pty Ltd ACN 091 197 287 (TrinityP3) of Suite 702, 53 Walker Street, North Sydney NSW 2060 operates a business of market management consultants. TrinityP3 has provided you with a letter which accompanies these terms and conditions (Proposal). By signing these terms and conditions, TrinityP3 and the Client enter into an Agreement for the provision of Services on the terms and conditions set out below, to be read in conjunction with the Proposal.
1. ENGAGEMENT AND TERM
1.1 The Agreement is made between the Client and TrinityP3 whereby the Client engages TrinityP3 to provide the Services set out in the Proposal.
1.2 The Agreement starts on the date set out in the Proposal and ends on the date or event set out in the Proposal or in accordance with the provision of the Agreement. If either party terminate this Agreement in accordance with the provisions of clause 19, the Client will be required to pay TrinityP3 for all Services provided up to the date of termination as well as any additional expenses TrinityP3 reasonably incur as a result of early termination of the Agreement.
2. OUR OBLIGATIONS
TrinityP3 agrees to:
(a) provide the Client with the Services and deliver to the Client the Proposed Outcomes set out in the Proposal;
(b) ensure that the Services are performed in good faith, in a professional, competent and timely manner, with due care, skill and diligence having regard to the Proposed Outcomes;
(c) comply with all reasonable instructions and directions issued by the Client;
(d) rely on the accuracy and completeness of information received from the Client;
(e) use reasonable efforts to comply with the Timetable;
(f) make available any entity listed in the Proposal to provide the Services and, where a listed entity is not available, provide a substitute entity that is a competent professional of similar qualification; and
(g) comply with any applicable legal, regulatory or other mandatory obligations.
3. CLIENT’S OBLIGATIONS AND WARRANTIES
3.1 The Client warrants that:
(a) the Services and Proposed Outcomes set out in the Proposal are sufficient to meet the Client’s requirements;
(b) any and all information the Client have given, or will give, to TrinityP3 is or will be true, accurate and not misleading in any material respect; and
(c) the Client is solely responsible for any software that the Client supplies to TrinityP3 or requires TrinityP3 to use in the provision of the Services.
3.2 The Client agrees to:
(a) provide TrinityP3 with necessary office space, accommodation or workspace facilities that it reasonably requires to provide the Services;
(b) provide all information, materials and other assistance that TrinityP3 reasonably requires in a timely and prompt manner; and
(c) maintain appropriate security, back-up and virus-checking procedures in place for any computer facilities, information or materials which it provides to TrinityP3;
(d) make available to TrinityP3 all of the Client’s staff members who can provide TrinityP3 with any necessary assistance and consultation that it reasonably requires; and
(e) not provide copies of any delivered Proposed Outcomes to any third party without TrinityP3’s prior written consent.
3.3 The Client acknowledges and agrees that:
(a) our performance under this Agreement depends on the Client carrying out its obligations as set out in this clause;
(b) TrinityP3 is not responsible for any delay or other consequence that results from the Client’s failure to perform any of the Client’s responsibilities under the Agreement;
(c) TrinityP3 is not liable for loss or damage that the Client or any other person sustains, directly or indirectly, in connection with TrinityP3’s reliance on information and software it receives, or is given access to, from the Client;
(d) if the Client fails to satisfy its responsibilities under the Agreement, TrinityP3 can revise any applicable timetable and cost estimate;
(e) nothing in this Agreement prevents TrinityP3 from providing services of a similar nature to any other client;
(f) to the full extent permitted by law, all warranties, conditions, representations and liabilities are excluded including any implied by statute;
(g) the Services and Proposed Outcomes are for the Client’s benefit only and it is not intended that any third party use or rely on them;
(h) TrinityP3 does not accept any liability or responsibility to any third party who benefits from the Services or makes use of or receives any Proposed Outcomes delivered by TrinityP3 to the Client.
4. TERMS OF PAYMENT
4.1 The Client must pay to TrinityP3 the Fees set out in the Proposal including any costs, related expenses, disbursements, taxes and charges relating to the performance of the Services or relating to this Agreement. For the avoidance of any doubt, the Fees set out in the Proposal are estimates and do not capture the total remuneration payable by the Client to TrinityP3 under this Agreement.
4.2 TrinityP3 will provide the Client with a tax invoice at periodic intervals determined at the sole discretion of TrinityP3.
4.3 The Client must pay the Fees set out on the tax invoice to TrinityP3 within thirty (30) days of the date of the tax invoice. If the Client does not attend to payment within the stipulated timeframe, TrinityP3 reserve the right to charge interest at 6% per annum on any unpaid amounts.
4.4 If there is a dispute with any item or items contained in any given tax invoice, the Client must pay any adjusted amount following resolution of the dispute within thirty (30) days of the resolution of the dispute.
5.1 The parties may during the course of TrinityP3 providing the Client with the Services, receive the Confidential Information of the other. The parties agree not to disclose, disseminate or use Confidential Information in any way other than in the course of providing or receiving the Services.
5.2 The parties will use their best endeavours to keep such Confidential Information securely protected and will only disclose such information to persons who have need to know on a confidential basis.
5.3 The above restrictions do not apply to Confidential Information which:
(a) is authorised to be disclosed by way of either party receiving written consent from the other; or
(b) TrinityP3 is required to disclose to a contractor, agent, director, shareholder, officer or partner of TrinityP3 in respect to the provision of Services; or
(c) is already in the public domain; or
(d) enters the public domain otherwise than as a result of an unauthorised disclosure or a breach of this Agreement; or
(e) is or becomes lawfully available to either party from a third party who has the lawful power to disclose such information on a non-confidential basis; or
(f) is rightfully known to either party prior to the date of the disclosure; or
(g) is disclosed to either party’s respective insurers or legal advisers; or
(h) is required to be disclosed by law, provided that prior to disclosure where reasonable practicable, the party required to make the disclosure gives the other party prior written notice of the requirement to disclose and details the information that will be disclosed.
5.4 The requirement to maintain Confidential Information subsists after this Agreement or any extension thereof is terminated.
5.5 The obligations under this clause will survive termination of this Agreement.
6. INTELLECTUAL PROPERTY
6.1 To the extend that TrinityP3’s Intellectual Property is:
(a) contained or developed by TrinityP3 in any Proposed Outcome;
(b) delivered by TrinityP3 to the Client during the performance of the Services; or
(c) contained in the Proposal,
TrinityP3 grants the Client a non-exclusive and non-transferable licence to use the Intellectual Property which forms part of the Proposed Outcomes, Proposal and provision of Services for the Client’s own internal use and for the purpose for which they are delivered.
6.2 The Client agrees:
(a) not to provide any Intellectual Property or copies thereof to any third party;
(b) that nothing in this clause prevents or restricts TrinityP3 from developing and/or using any Intellectual Property for its own purposes;
(c) the Intellectual Property rights vest in TrinityP3 upon their creation, by virtue of this clause, regardless of whether the Intellectual Property is conceived or created in whole or in part by TrinityP3 during the development of the Proposal or Proposed Outcomes or provision of the Services, alone or in conjunction with others, using TrinityP3’s property or not, in pursuance of instructions or not;
(d) that any software component of any Proposed Outcome delivered by TrinityP3 to the Client is subject to the terms of any software license referred to in the Proposal or the relevant Proposed Outcome and the Client may use the software in accordance with the licence granted by TrinityP3 to the Client pursuant to this clause 6.
6.3 Nothing in this clause prevents or restricts TrinityP3 from developing and/or using Intellectual Property or Confidential Information, including any ideas, concepts, know-how, information, techniques, inventions and improvements developed during the term of this Agreement and relating to methods or process of more general application, including those in the field of information technology and business process, for TrinityP3’s purposes or for other clients of TrintiyP3.
7. INDEMNITY AND LIMITATION OF LIABILITY
7.1 The Client indemnifies and agrees to keep indemnified, TrinityP3 from all reasonable Loss incurred by TrinityP3 arising from or in any way connected to the Client in respect of this Agreement, the Proposed Outcomes or provision of the Services, except to the extent that the Loss has resulted from the willful misconduct or fraudulent behavior of TrinityP3.
7.2 The maximum liability of TrinityP3 howsoever will be the total amount of Fees paid by the Client to TrinityP3 under this Agreement.
7.3 Trinity P3 its agents, sub-agents, officers, directors, related entities, employees and representatives will not be liable for any direct, indirect, incidental, consequential, claim, loss (including loss of profits, loss of data and loss of business opportunity), damage, injury, death or any act, omission or default by the Client or any other persons or claims made against the Client arising out of or in relation to this Agreement or the performance of the Services by TrinityP3 whether or not such loss or damage was foreseeable or foreseen by either party.
7.4 TrinityP3 is discharged from all liability in respect of the Services, whether under the law of contract, tort, statute or otherwise and the Client will not be entitled to commence any action or claim whatsoever against TrinityP3 its agents, sub-agents, officers, directors, related entities, employees and representatives of TrinityP3 in respect of the Services.
7.5 The obligations under this clause will survive termination of this Agreement.
Either party may terminate the Agreement:
(a) by giving thirty (30) days written notice to the other; or
(b) immediately if either party:
(i) engages in any act or omission in the provision of the Services, which in the reasonable opinion of TrinityP3, constitutes serious or wilful misconduct; or
(ii) commits a serious breach or non-observance of any policy or procedure of TrinityP3; or
(iii) undertakes conduct which in the reasonable opinion of TrinityP3 might have a tendency to damage its reputation; or
(iv) refuses or neglects or repeatedly fails to comply with any request or direction of TrinityP3; or
(v) is convicted of an indictable offence; or
(vi) is subject to any law relating to bankruptcy or insolvency;
(vii) breaches duties to maintain the Confidential Information set out in clause 5.
9. RESTRAINT OF TRADE
9.1 The parties acknowledge and agree that during the provision of Services by TrinityP3, either party can be exposed to information about one another’s products, services, clients, prospective clients, referrers, prospective referrers and suppliers.
9.2 The parties agree not to, directly or indirectly, for their benefit in any capacity (for example as agents, director, shareholder, officer, partner) or for the benefit of any other person or entity:
(a) canvass, solicit, induce or suggest to any employee, agent or contractor or consultant of either of the parties to leave their engagement or employment with the other; or
(b) otherwise frustrate the relationship between Company and its clients, employees, contractors or consultants,
for a period of three (3) months following termination or expiry of this Agreement.
10. DISPUTE RESOLUTION
In the event of any dispute between the parties:
(a) the parties will use their best endeavours to try to resolve the dispute amicably through negotiations in good faith, discussion and other communication. Each party can (upon giving at least 7 days written notice to the other) bring to any meeting an independent third party professional with appropriate qualifications to discuss the issue in question and seek to achieve a resolution; and
(b) if the dispute is not resolved through negotiation then any party can, by written notice to the other sent any time, set out the details of the dispute and nominate a resolution and serve such notice on the other parties,
if within five (5) Business Days of the written notice, the resolution proposed in the notice has not been accepted, the parties agree to refer their dispute to mediation and the parties agree that resolution of any dispute will be treated as urgent and all parties will use their best endeavours to attend and provide information and generally give effect to the mediation and will, wherever possible, avoid delay.
11. ASSIGNMENT AND SUB-CONTRACTING
11.1 The parties cannot novate, assign or transfer their rights under this Agreement without the prior written consent of the other.
11.2 The Services to be performed under this Agreement are to be performed by TrinityP3 who can engage any sub-contractor or employ any other person to perform the Services.
11.3 In the event that the Client requires TrinityP3 to engage the services of a particular sub-contractor, the Client accepts responsibility for the work to be performed
This Agreement may only be amended by agreement of the parties in writing.
13. ENTIRE AGREEMENT
13.1 To the extent permitted by law in relation to the subject matter of this Agreement, this Agreement together with the Proposal:
(a) embodies the entire understanding of the parties and constitutes the entire terms agreed on between the parties; and
(b) supersedes any prior written or other agreement, representation, negotiation, arrangement, understanding and all other communications between the parties.
13.2 If there is any conflict or inconsistency between the terms and conditions and provisions of this Agreement with any other document, the terms and conditions and provisions of the Proposal will prevail.
Any notice to be given in conjunction with the operation of this Agreement must be:
(a) in writing; and
(b) sent by post or email to the last known postal address or email of the recipient.
Failure to exercise or enforce or a delay in exercising or partially enforcing or exercising any right, power or remedy provided under the law or this Agreement by any party will not in any way preclude or operate as a waiver of any exercise or enforcement or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.
16.1 If a provision of this Agreement is or becomes invalid or unenforceable in a jurisdiction it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.
16.2 Any prohibited, unlawful, void or unenforceable provision will be replaced by an allowable, lawful, effective and enforceable provision which so far as is possible will have the same economic benefit or burden for the parties as the severed provision was intended to achieve.
16.3 All obligations of the parties survive expiration or termination of this Agreement to the extent required for their full observance and performance.
17. LAW AND JURISDICTION
This Agreement is governed by the law in force in the state of New South Wales and will be construed in accordance with the law of that State. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that State and waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
“Agreement” means the terms and conditions forming part of this document and the Proposal;
“Client” is a reference to the party to whom the Proposal is addressed;
“Confidential Information” means information relating to the business or internal operations of Company which is obtained by the Contractor or Contractor’s Representative in the course of their work with Company, and includes but is not limited to any of the following types of information:
(a) information which Company indicates is confidential;
(b) information which is by its very nature confidential;
(c) information which could be of commercial value to any customer, client, supplier or competitor of Company;
(d) information about Company’s financial affairs, including performance or profitability reports and margins;
(e) information relating to trade secrets, know-how, material and intellectual property, technology, source codes and methodologies, terms of trade, contractual arrangements, business strategies, formulae, processes, applications, unique features or techniques in relation to or connected or associated with any of Company’s products or services, client lists or prospective client lists, advice to clients or other documents provided to clients;
(f) information obtained verbally, whether in formal meetings, during discussions or in any other way;
except for information that is freely available in the public domain.
“Fees” means any cost, expenses, remuneration or fees set out in the Proposal;
“Intellectual Property” means all copyright and other intellectual property rights in any material or software (written or machine-readable), proprietary, methodologies, templates, forms, precedents, spreadsheets, databases and other electronic tools created by or licensed by TrinityP3 prior to this Agreement and any subsequent modifications thereto, including but not limited to, working papers and notes created for the purposes of the Proposal, during the provisions of the Services and development of the Proposed Outcomes.
“Loss” means any and all claims, costs, suits, demands, liabilities and expenses, including but not limited to legal fees and disbursements incurred in rectifying a breach of the Agreement and/or recovering amounts due and payable from the Client arising from or in any way connected to the Agreement;
“Proposal” means the document prepared by TrinityP3 and provided to the Client on or about the date set out in this Agreement;
“Proposed Outcomes” means any outcomes, goals, intentions, plans set out in the Proposal.
“Timetable” means any such timetable set out in the Proposal (for the avoidance of any doubt the timetable is not contractually binding and is only intended for planning and estimating purposes);
“Trinity P3” means Trinity P3 Pty Ltd ACN 091 197 287;
“Services” means the services set out in the Proposal;
In this document, unless the context indicates otherwise:
(a) The words “include”, “including”, “for example” or “such as” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
(b) A clause, schedule or annexure is a reference to a clause, schedule or annexure of this Agreement.
(c) In the interpretation of this Agreement no rules of construction shall apply to the disadvantage of one party on the basis that that party put forward this Agreement or any part of it.
EXECUTED AS AN AGREEMENT