These Terms and Conditions (the “Terms”), along with our Privacy Policy and any other policies or guidelines posted on our website or provided to you (collectively, the “Contract”), govern the provision of consulting services by Ayres Consulting Group Pty Ltd ACN 664 070 508 ("Ayres Consulting", "we", "us", or "our") to our clients ("Client", "you", or "your").
By engaging our services, you agree to be bound by these Terms. If you do not agree to these Terms, you must not use our services.
02
definitions
In this Agreement, the following definitions apply:
"Client" means the person or entity engaging Ayres Consulting's services;
"ConsultancyServices" means the services described in the Order Form including the supply of Contract Material to the Client;
"Consultant" means Ayres Consulting Group Pty Ltd ACN 664 070 508;
"Consultant'sFee" means the amount payable to the Consultant by the Client as stated in the Order Form and adjusted in accordance with these Terms;
"Contract" means the agreement between the Client and the Consultant including these Terms and the Order Form;
"ContractMaterial" means all material created in connection with or for the purposes of performing the Contract by the Consultant;
"IntellectualPropertyRights" means any statutory or other proprietary right in respect of inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyright (including future copyright), confidential information, trade secrets, know-how, trademarks and any other right in respect of intellectual property;
"LegislativeRequirement" means applicable legislation, regulations, and legal requirements;
"OrderForm" means the document specifying the Consultancy Services to be provided, executed by both parties;
"PersonalInformation" means information or an opinion about an identified individual, or an individual who is reasonably identifiable individual or entity that accesses or uses the Platform, whether registered or not.
In these Terms, except where the context otherwise requires:
references to persons include an individual, firm or a body, corporate or unincorporated;
words in the singular include the plural and vice versa;
“including" and similar expressions are not words of limitation;
no rule of construction applies to
03
scope of services
The Consultant will provide the Consultancy Services as described in the Order Form.
Any changes to the scope of services must be agreed in writing by both parties.
04
variations
The Consultant will not permit any variations the Consultancy Services except as agreed in writing between the Consultant and the Client.
Any variation causing a change to the fees or timing of the Consultancy Services must be agreed in writing before implementation.
05
RESPONSIBILITIES AND OBLIGATIONS OF THE CONSULTANT
The Consultant will perform the Consultancy Services in accordance with the Contract.
In performing the Consultancy Services, the Consultant must:
comply with the reasonable directions of the Client;
comply with all Legislative Requirements;
remain responsible for the provision of Consultancy Services; and
treat as confidential all Client information and Contract Material.
The Consultant will perform the Consultancy Services to the standard of skill, care and diligence expected of a skilled and competent professional in the relevant field.
Any timeframes provided by Ayres Consulting in relation to the Services are estimates only and time is not of the essence in relation to the provision of the Services
The Consultant may subcontract any part of the Consultancy Services. The Consultant remains liable for the acts and omissions of its subcontractors to the extent such acts are not in breach of Legislative Requirements, fraud or criminal conduct..
06
RESPONSIBILITIES AND OBLIGATIONS OF THE CLIENT
The Client must:
pay the Consultant in accordance with the Contract;
provide, in a timely manner, such information, materials and access as the Consultant may reasonably require to perform the Services;
ensure that all information provided to the Consultant is accurate and complete;
obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services;
review work completed by the Consultant and accept or provide feedback to the extent requested by us; and
comply with any additional obligations set out in an Order Form.
The Client warrants that all information provided to the Consultant is accurate and complete.
It is the Client’s obligation to ensure that the applicable Order Forms, invoice or any other written notification we send to you confirming the terms of this Contract, correctly states the information set out in them and if that information changes during the term of the Contract, you must write to us to request a change to them.
If the Consultant’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors or employees:
the Consultant shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay;
the Client shall reimburse the Consultant on written demand for any costs or losses sustained or incurred by the Consultant arising directly or indirectly from such prevention or delay; and
timeframes for performance shall be extended accordingly.
07
PAYMENT OF FEES AND DISBURSEMENTS
The Consultant will provide the Consultancy Services for the fees and reimbursable expenses set out in the Order Form. All amounts are GST exclusive unless otherwise stated.
The Consultant may submit payment claims monthly, in the form of a tax invoice. The Client must pay the amount claimed or such other amount it reasonably determines is due and payable, within 21 business days of receipt of a payment claim.
If the full amount claimed is not determined to be payable, the Client must provide reasons for determining such other amount within 10 business days of receiving the claim.
The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
If the Client fails to make full payment within the required time:
the entire outstanding amount will become due and payable immediately;
the Consultant may charge interest compounding monthly on the outstanding amount at 1% per month;
the Consultant may recover all reasonable legal costs associated with recovering the debt.
The Consultant reserves the right to suspend services if payment is not received within the specified timeframe.
08
INTELLECTUAL PROPERTY
Title to and ownership of Intellectual Property Rights in all Contract Material vests in the Client upon payment of the Consultant's Fee.
The Consultant retains the Intellectual Property Rights in any original ideas, equipment, processes or systems created outside the terms of the Contract and used in carrying out the Consultancy Services. The Consultant grants to the Client a royalty-free non-exclusive irrevocable license to use such Intellectual Property Rights for the purpose for which the Consultancy Services are provided.
The Client grants to the Consultant a paid up, non-exclusive, irrevocable license to use the Intellectual Property Rights in Contract Material vested in the Client pursuant to this clause.
The Consultant will not infringe any Intellectual Property Rights in performing the Consultancy Services.
The Client warrants that any materials or information it provides to the Consultant will not infringe the Intellectual Property Rights of any third party. The Client must not copy, reproduce, republish, upload, post, publicly display, encode, translate, transmit, or distribute in any way any of the Consultant’s Intellectual Property Rights Platform without the Consultant’s written consent.
09
CONFIDENTIALITY
All parties undertake that they shall not disclose to any person any Confidential Information relating to, owned by, receive from or disclosed by the other party, except as permitted by this clause.
Each party may disclose the other party's Confidential Information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
This clause shall survive termination of this Contract.
10
DATA PROTECTION AND PRIVACY
Each party shall comply with applicable data protection and privacy laws, including the Privacy Act 1988 (Cth).
We care about data privacy and security. Please review our Privacy Policy: [insert link]. By engaging the Consultant in Consultancy Services, you agree to be bound by our Privacy Policy, which is incorporated into this Contract. Please be advised the Platform is hosted in Australia.
The Client warrants that it has obtained all necessary consents for the Consultant to use any Personal Information provided to it for the purposes of providing the Consultancy Services.
If you utilise our Consultancy Services from the United States, European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in Australia, then through your continued use of the Platform, you are transferring your data to Australia, and you expressly consent to have your data transferred to and processed in Australia.
11
TERM AND TERMINATION
This Contract shall commence on the date on which an Order Form is agreed upon by the Consultant and the Client in writing and shall continue for the term set out in the Order Form, unless terminated earlier in accordance with this clause.
Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.3(b) to clause 11.3(g) (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
On termination of this Contract for any reason:
the Client shall immediately pay to the Consultant all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Ayres Consulting may submit an invoice, which shall be payable immediately on receipt;
any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination of this Contract shall remain in full force and effect;
each party will return to the other party and otherwise destroy any Confidential Information relating to, owned by, receive from or disclosed by the other party, subject to applicable law; and
termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12
WARRANTIES
This Contract shall commence on the date on which an Order Form is agreed upon by the Consultant and the Client in writing and shall continue for the term set out in the Order Form, unless terminated earlier in accordance with this clause.
Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.3(b) to clause 11.3(g) (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
On termination of this Contract for any reason:
the Client shall immediately pay to the Consultant all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Ayres Consulting may submit an invoice, which shall be payable immediately on receipt;
any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination of this Contract shall remain in full force and effect;
each party will return to the other party and otherwise destroy any Confidential Information relating to, owned by, receive from or disclosed by the other party, subject to applicable law; and
termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13
LIMITATIONS OF LIABILITY
Limitation of liability: To the fullest extent provided by law, in no event will the Consultant, its affiliates, or their licensors, service providers, employees, agents, officers, or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your engagement of the Consultant, use, or inability to use, the Consultancy Services, any websites linked to it, any content on produced by the Consultant or such other websites, including any direct, indirect, special, incidental, consequential, or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, or otherwise, even if foreseeable.
Limitation of liability amount: The foregoing does not affect any liability that cannot be excluded or limited under applicable law. In any event, the total liability of the Consultant for any claim arising out of or relating to these terms of use or our platform, regardless of the form of the action, is limited to the greater of the amount paid, if any, by the Client to the Consultant in the previous 12 months for the specific service from which the claim arose.
Indirect or consequential losses: Neither party is liable to the other for any indirect or consequential loss, including but not limited to loss of profit, revenue, or opportunity.
Acknowledgment: The Client acknowledge that you have read these disclaimers and limitations of liability, understand them, and agree to be bound by them. You understand that by engaging the Consultant, you are agreeing to these disclaimers and limitations of liability.
14
INDEMNIFICATION
The Client agrees to defend, indemnify, and hold the Consultant harmless, including its subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your:
engagement of the Consultant;
procurement and use thereof of the Consultancy Services;
any breach of your representations and warranties set forth in this Contract;
your violation of the rights of a third party, including but not limited to intellectual property rights;
any overt harmful act toward the Consultant; or
negligent, fraudulent or criminal conduct.
15
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the website, satisfy any legal requirement that such communication be in writing.
You hereby agree to the use of electronic signatures, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the platform.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
16
governing law
The Contract is governed by and construed in accordance with the law of Queensland, Australia.
The parties submit to the exclusive jurisdiction of the courts of Queensland, Australia.
17
miscellaneous
Entire Agreement: These Terms, together with the Order Form, constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Assignment: Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the other party.
Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Third party rights: The Contract does not give rise to any rights under any statutes governing third party rights to enforce any term of the Contract.
Variation: Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Survival: Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
These Terms and Conditions were last updated on 2 October 2024.
