Contract Terms & Conditions
1. Terms & Conditions
These terms and conditions (Terms and Conditions) are to be read in conjunction with any quotation, proposal, letter of offer or letter of engagement (Offer Document) for the provision of services between the person identified as the client in such document (client, you) and CLC Consulting Group Pty Ltd (ABN 20 690 364 508) of Level 7, 241 Adelaide Street, Brisbane Queensland 4000 (Cole Lawson, us, our). Such document and these Terms and Conditions form the “Contract for Communication Services” between you and us (Contract).
2. Provision of Services
Cole Lawson shall provide the services outlined in the Offer Document (Services) to you on the terms and conditions set out in the Contract.
3. Quotations
a) Any quotation or proposal set out in the Offer Document is valid for 14 days from the date of the Offer Document. After the expiry of such period, Cole Lawson reserves the right to vary the scope of the Services, specified personnel who will provide the Services, fees payable in respect of the Services or any other terms or conditions outlined in the Offer Document.
b) All quotations and/or proposals are made on the basis that Cole Lawson will only be required to complete no more than 2 rounds of amendments to any documents or deliverables Cole Lawson is required to prepare or review. Cole Lawson reserves the right to charge you for additional time and costs in connection with any further amendments or attendances at our applicable rates.
c) If you engage Cole Lawson on a retainer basis (Retainer Contract) the fees quoted in the Offer Document (including any monthly retainer fees) are valid for the duration of the period for the engagement outlined in the Offer Document (Retainer Period), at which time Cole Lawson reserves the right to review its fees.
d) A binding agreement between us and you (each a party and together the parties) for delivery of the Services in accordance with the Contract (including these Terms and Conditions, as may be varied from time to time) will arise where: (a) you have signed and returned a copy of the Contract to us; or (b) you request us to perform the Services in accordance with the Contract and we commence performing the Services in accordance with the Contract; or (c) you make a payment to us in connection with the Services.
4. Option to extend
If you enter into a Retainer Contract with Cole Lawson (which may be offered by Cole Lawson in its sole discretion):
a) the Retainer Contract will operate for the Retainer Period unless it is terminated in accordance with this clause 4 or clause 15 and as may be extended in accordance with this clause 4;
b) on or about the date which is 6 weeks before the last day of the Term, Cole Lawson may give you a written offer to extend the Term in which case Cole Lawson may provide you with a written document setting out new rates and/or a revised description of the retainer Services;
c) if you receive an offer as specified in clause 4b), you must notify Cole Lawson within 14 days of receipt of the offer (being on or about the date approximately 4 weeks before the end of the Term) of your intention to accept the new offer) Renewal Notice); and
d) if you fail to provide Cole Lawson with a Renewal Notice or your intentions following the expiry of the Term within the period outlined in clause 4c) and if you continue to engage Cole Lawson to provide Services, Cole Lawson may continue providing you the Services on a monthly basis at the existing retainer rate provided that Cole Lawson may by one month’s written notice to you, increase its rates for provision of the Services to you to reflect any increase in the Consumer Price Index (Brisbane All Groups) which have occurred since the rates were most recently agreed or determined.
5. Accounts payable
a) Deposit
Cole Lawson may require you to pay a deposit of an amount up to 70% of the minimum estimated fees payable by you to Cole Lawson in respect of the Services over the period of the engagement (Deposit). If Cole Lawson requires you to pay a Deposit, Cole Lawson will notify you of this requirement and will issue you a written request for the deposit amount at the commencement of the project. Cole Lawson has no obligation to begin performing the Services until it has received payment in full of the Deposit from you.
b) Rate of Services Fees
Unless you have entered into a Retainer Contract with Cole Lawson, you will be charged for the Services based on the time spent by Cole Lawson in performing the Services (Incurred Service Fees). The Incurred Service Fees are calculated by multiplying the time spent by Cole Lawson in providing the Services with the applicable hourly rates outlined in the Offer Document or such varied rates as notified by Cole Lawson from time to time.
c) Project Services
If you engage Cole Lawson to perform a specific project on a project services basis (such Contracts known as a Project Contract), prior to the Services being performed, Cole Lawson will advise you of an anticipated completion date of the Services (Expected Completion Date). On the Expected Completion Date, Cole Lawson will issue you an invoice for the balance of the Incurred Services Fees, minus any deposit and interim fees paid by you. If the Services continue past the Expected Completion Date for reasons beyond Cole Lawson’s control, due to your failure to provide the information in accordance with clause 9b), or by your request, you will be required to pay Cole Lawson any additional Incurred Services Fees. In this event, Cole Lawson will invoice you at the beginning of each month after the Expected Completion Date for any Incurred Services Fees in excess of the Deposit.
d) Retainer Invoices
If you enter into a Retainer Contract with Cole Lawson, Cole Lawson will issue you monthly invoices for the monthly retainer fees at the start of each month. The monthly retainer fees will be payable in accordance with the payment terms specified in the Offer Document.
e) Overdue Amounts
If you fail to pay any amounts due to Cole Lawson under the Contract by the time stated on any invoice issued to you, Cole Lawson may (at its sole discretion):
(i) take action to recover the overdue amounts plus interest on the overdue amounts at the rate of 10% per month accruing daily from and including the date after the due date of payment until the date of payment in full;
(ii) suspend performance of the Services to you;
(iii) terminate this Contract in accordance with clause 15; and
(iv) retain any money that we hold until the overdue amounts have been paid in full.
6. Change to Scope and Additional Services
a) Change to Scope
From time to time, you may require Cole Lawson to perform additional work that is outside the scope of work of the Services. Additional services fees will be payable for any work performed outside of the scope of work of the Services. A variation of the scope of services will amount to a variation to this Contract. Any variation to this Contract must be acknowledged and consented to in writing by both parties.
b) Overflow hours
If you enter into a Retainer Contract with Cole Lawson, Cole Lawson may expend more or fewer hours than specified each month as per the overflow limits outlined in the Offer Document. Any hours that are unused by Cole Lawson in a given month will carry forward to be used within the period specified in your Offer Document.
c) Changes to Fixed Retainer Fees
Changes to the monthly retainer fee may be negotiated by the client and Cole Lawson at any time. Any agreed variation to the monthly retainer fee shall be applied on and from the proceeding calendar month (unless otherwise negotiated). Retainer levels will not be decreased during the duration of this Contract, unless otherwise agreed by the parties and approved by Cole Lawson in writing, such approval which will be given at Cole Lawson’s sole discretion.
d) Additional Services
If you elect to engage Cole Lawson to provide any additional services beyond those specified in the Offer Document, Cole Lawson will invoice you separately for these services upon completion of the additional services.
e) Personnel
You consent to Cole Lawson varying the personnel engaged by Cole Lawson to provide the Services to you from time to time and at any time.
7. Supplier costs
a) Any external supplier costs such as media monitoring, printing, photography, design, artwork, video production, travel, accommodation, catering and venue hire, which are incurred will be billed in addition to our services fees. Before any expenditure is incurred in respect of any external supplier costs, Cole Lawson will source competitive quotes for the supplier costs and will provide you with estimates for formal approval.
b) Prior to engaging external suppliers, Cole Lawson will agree arrangements for the invoicing of suppliers’ costs with you. Cole Lawson may agree to pay the external supplier costs on your behalf and invoice you for the nominated amount plus an administration fee of 15%. Alternatively, you may elect for the external supplier to bill you directly for the services.
8. GST
Our fees and charges are exclusive of GST. You must pay GST on our fees and supplier costs, where incurred on your behalf. The amount of GST payable will be included on all tax invoices Cole Lawson issues to you.
9. Provision of Information
a) In order for Cole Lawson to perform the Services, you may be required to provide Cole Lawson with certain information.
b) If Cole Lawson requests any information from you in connection with the performance of the Services, you must provide this information to Cole Lawson within 4 business days of receiving a request from Cole Lawson to provide the information, or any other shorter period notified by Cole Lawson.
c) If you fail to provide Cole Lawson with any requested information within the time specified in clause 9b):
(i) Cole Lawson may be unable to perform the Services;
(ii) such failure to perform the Services will not amount to a breach of this Contract by Cole Lawson; and
(iii) you indemnify and hold Cole Lawson harmless in relation to any costs it incurs (including but not limited to Incurred Services Fees) in connection with your failure to perform the Services by the Expected Completion Date.
10. Intellectual property
a) All Intellectual Property Rights in any work products created by Cole Lawson for you remain the property of Cole Lawson. Nothing in this Contract will be taken to transfer ownership or any interest in the Intellectual Property Rights in that work product to you.
b) Subject to payment by you to Cole Lawson of all fees payable pursuant to this Contract, Cole Lawson grants you a personal, non-transferable, non-exclusive, perpetual, royalty-free licence to use any Intellectual Property Rights that Cole Lawson specifically develops in delivering the Services on delivery of the Services in accordance with these Terms and Conditions. You must not make any other use of those Intellectual Property Rights without the prior written consent of Cole Lawson. Cole Lawson may withhold that consent without reason, and may grant such consent subject to conditions, including the payment of further fees by you. You must not, under any circumstances without Cole Lawson’s prior written consent, on-supply the work product or any component of the work product for use by third parties, with the exception of the fund’s investee companies in circumstances where such supply is reasonably within the scope of use intended for the material (such as for information purposes or reproduction of marketing or publicity content on the investee company’s website).
c) You hereby grant a personal, non-transferable, non-exclusive, royalty-free licence to Cole Lawson to use the Intellectual Property Rights in any materials that you supply to Cole Lawson for the sole purpose of providing the Services under this Contract.
d) You warrant that you own or have the right to use the Intellectual Property Rights in any materials that you supply to Cole Lawson for use in providing the Services, and you are entitled to grant this licence to Cole Lawson.
e) In this Contract, ‘Intellectual Property Rights’ includes all copyright, trade mark, design, patent, semiconductor or circuit layout rights; trade, business, company or domain names; any right to have confidential information kept confidential; other proprietary rights; any rights to registration of such rights existing anywhere in the world, whether created before, on or after the date of this Contract.
11. Client-consultant integrity
a) You hereby agree to direct any instructions relating to the conduct of the Services to your nominated Cole Lawson account contacts in accordance with the agreed scope of work and budgets.
b) You acknowledge that no direct instructions outside of the Contract between Cole Lawson shall be given by the client, its servants or agents to any Cole Lawson staff member or sub-contractor without prior consultation with Cole Lawson. Cole Lawson operates in line with the Public Relations Institute of Australia industry guidelines, which forbid work conducted on a “no-win-no-fee” principle.
12. Nature of Services
a) Cole Lawson warrants that it will perform any Services in a professional manner and in accordance with these Terms and Conditions and any applicable laws.
b) While Cole Lawson makes every effort to achieve your objectives, Cole Lawson does not make any representation, guarantee or warranty in relation to any outcome or results that may be achieved as a result of the Services. Such results include but are not limited to, volumes of media coverage or sales results.
c) While Cole Lawson may from time to time, interact with legal professionals in relation to the provision of the Services, no work, information or advice provided by Cole Lawson constitutes legal advice and you should not rely on any information for such purpose.
13. Australian Consumer Law
a) Under the Australian Consumer Law (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services.
b) Nothing in these Terms and Conditions shall be read or applied, so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified. Any express warranty given in these Terms and Conditions is in addition to and does not limit your rights under the ACL.
14. Liability
To the maximum extent permitted by law and subject to clause 13:
a) Cole Lawson shall not be liable to the client, for loss of profits, or liability for any consequential or indirect loss of any nature whatsoever, including without limitation liabilities, losses, damage, damages, penalties, fines, taxes, judgments, costs and legal and other expenses including but not limited to loss of use, revenue or any loss of business, loss of production, contract or goodwill;
b) the liability of Cole Lawson and each of its officers, employees and agents in relation to the performance or otherwise of any of their respective obligations under the Contract and/or the performance of the Services (including without limitation in respect of negligence and other tort) shall not exceed and is limited to the fees for the relevant Services or the re-supply of the Services at the election of Cole Lawson;
c) except as expressly provided to the contrary in this Contract, all warranties or guarantees whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Contract or to this Contract generally are excluded by Cole Lawson; and
d) the client warrants that it has not relied on any representation made by Cole Lawson which are not expressly stated in this Contract.
15. Termination
a) Without limiting the generality of any other clause in this Contract, Cole Lawson may terminate this Contract immediately by notice in writing if:
(i) any payment due by you to Cole Lawson pursuant to this Contract remains unpaid after the time stated on any valid tax invoice raised and issued to you; or
(ii) you breach any term or condition of this Contract and such breach (if capable of being remedied) is not remedied within seven days of your receipt of a written notice from Cole Lawson requesting you remedy the breach.
b) Notwithstanding clause 15a), Cole Lawson may terminate this Contract immediately on notice in writing to you if:
(i) you become, threaten or resolve to become or are in jeopardy of becoming, subject to any form of insolvency administration, receivership, liquidation or being a natural person, bankruptcy;
(ii) you cease or threaten to cease conducting your business in the normal manner.
c) Notwithstanding clauses 15a) and 15b), Cole Lawson may terminate this Contract for convenience by giving you 30 days’ written notice of Cole Lawson’s intention to do so.
d) If notice is given to you pursuant to clauses 15a), 15b) or 15c), Cole Lawson may, in addition to terminating the Contract:
(i) retain any moneys paid by you to Cole Lawson;
(ii) recover our expenses for all work performed, but not invoiced before the termination in respect of which no sum has been previously charged;
(iii) resume possession of any property of Cole Lawson in possession of the client;
(iv) be regarded as discharged from any further obligations under this Contract;
(v) pursue any additional or alternative remedies provided by law; and
(vi) require you to return or destroy any confidential information of Cole Lawson.
e) Except as otherwise provided in this Contract, you may terminate the Contract with 30 days’ written notice if:
(i) Cole Lawson has breached any term of this Contract;
(ii) you have provided Cole Lawson with a minimum of 14 days’ written notice to rectify any breach of the Contract; and
(iii) Cole Lawson has failed to rectify the breach within the 14-day period.
f) If you terminate the Contract in accordance with clause 15e), Cole Lawson may recover any Incurred Services Fees incurred prior to the date of termination.
g) If you enter into a Retainer Contract with Cole Lawson and you terminate the Retainer Contract for any reason other than those reasons outlined in clause 15e), you will be required to pay Cole Lawson for any remaining minimum monthly retainer fees payable from the date of termination up to the designated Contract end date.
16. Force majeure
a) Cole Lawson shall not be liable for any delay or failure to perform its obligations if such failure or delay is due to an event or circumstances beyond its control.
b) Cole Lawson shall notify the client as soon as practicable of any anticipated delay due to an event or circumstances beyond its control. The performance of Cole Lawson’s obligations under the Contract shall be suspended for the period of the delay due to an event or circumstance beyond its control.
c) If a delay due to an event or circumstances beyond Cole Lawson’s control exceeds 15 days, you may terminate this Contract immediately by providing notice to Cole Lawson of your intention to do so.
d) If you give a termination notice to Cole Lawson in accordance with clause 16c):
(i) Cole Lawson shall refund any moneys previously paid by you under this Contract for which no Services have been provided: and
(ii) you shall pay Cole Lawson a reasonable sum in relation to any unpaid Incurred Services Fees and expenses incurred prior to termination.
17. Dealings with Cole Lawson Employees
a) From the date you engage Cole Lawson to the date which is 3 months after the date on which you cease to engage Cole Lawson, you must not and you must procure that each of your related bodies corporate, officers, employees and agents do not:
(i) solicit, canvass, approach, accept an approach from, seek to engage or engage the services of:
a. any employee of Cole Lawson;
b. any person who was an employee of Cole Lawson during the 12-month period ending on the date when you ceased to engage Cole Lawson; or
c. any person who was an employee of Cole Lawson during the 12-month period ending on the date on which you engaged or sought to engage the services of such person;
(ii) otherwise seek to interfere with the relationship between Cole Lawson and any of its employees;
(iii) enter into any contracts or arrangements with an employee of Cole Lawson, or any entity which an employee of Cole Lawson is involved as trustee, principal, agent, director, shareholder, unitholder, beneficiary, independent contractor, consultant, adviser or in any other capacity; or
(iv) offer any inducements, shares, gifts, rewards or other benefits to any employee of Cole Lawson.
b) Clause 17a) does not restrict any person from recruiting a person through a recruitment agency (except if the agency directly targets an employee of Cole Lawson) or in a response to a general newspaper, web page or other public employment advertisement.
18. Disclosure and confidentiality
Cole Lawson and the client mutually agree that they shall not at any time during the duration of the Contract and after completion, divulge to any person any information or fact relating to the conduct, management and affairs of either of them which may have come to their knowledge during the performance of the obligations under this Contract, and the disclosure of which would be calculated to cause reputational damage or loss to either party unless required by law or authorised in writing by the party who owns the confidential information.
19. Entire Agreement
This Contract (as may be amended from time to time in accordance with its terms) constitutes the entire agreement between the parties in relation to the Services. The Contract supersedes all other terms and conditions issued by the client and Cole Lawson otherwise than in accordance with these Terms and Conditions. To the extent of any inconsistency between these Terms and Conditions and an Offer Document, the terms and conditions of the Offer Document shall prevail.
20. Relationship
The Contract does not create a relationship of principal and agent, joint venture, partnership or fiduciary relationship between Cole Lawson and the client and the parties agree that the client is an independent entity.
21. Waiver
a) No right under this Contract shall be deemed to be waived by a party except if such waiver is in writing signed by the party alleged to have waived the right.
b) A waiver by a party pursuant to clause 21a) will not prejudice the rights in respect of any subsequent breach of this Contract by the other party.
22. Governing law
This Contract will be governed by and construed according to the law of the State of Queensland. The parties hereby agree to submit exclusively to the jurisdiction of the courts and tribunals of that State.
23. Severability
If any provision or any part of a provision of this Contract is held invalid, unenforceable or illegal for any reason, this Contract shall remain otherwise in full force apart from the unenforceable or illegal provision or any part of a provision, which shall be deemed deleted.
24. Notices
a) Notices under this Contract may be delivered by hand, registered mail, facsimile or email to the addresses of the parties specified in or notified pursuant to this Contract.
b) Notice will be given:
(i) in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or duly authorised employee, agent or representative of the receiving party;
(ii) in the case of facsimile, upon proof of completion of transmission, that is, by facsimile activity report; or
(iii) in the case of email, the time that the intended recipient or person duly authorised by the recipient acknowledges receipt.
25. Interpretation
In this Contract, unless the context requires otherwise: (a) a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity; (b) a reference to a natural person includes their personal representatives, successors and permitted assigns;(c) a reference to a corporation includes its successors and permitted assigns; (d) an obligation or warranty on the part of 2 or more persons binds them jointly and severally and an obligation or warranty in favour of 2 or more persons benefits them jointly and severally; (e) including and includes are not words of limitation; (f) a word that is derived from a defined word has a corresponding meaning; (g) monetary amounts are expressed in Australian dollars; and (h) the singular includes the plural and vice-versa.