1.0 The Agreement
1.1 These Terms and Conditions of Business (the ‘Terms’) govern the agreement between the Client and FineHaus Management Pty Ltd (FineHaus) ABN 17629445647, PO Box 939 Eltham, Vic 3095 (the ‘Service Provider’) for the provision of the ‘Services’ detailed in the Proposal provided by FineHaus. Nothing discussed prior to delivery of these Terms has induced the Client to enter into, nor forms part of, the Terms unless it is specifically set out below. No-one is authorised to agree any variations to the Terms unless documented and agreed in writing between the Client and a designated representative of FineHaus.
1.2 The Client’s instructions to FineHaus will amount to acceptance of these Terms. If FineHaus has already started to commence the Services, then the Client agrees that the Terms apply retrospectively from the start of such work.
1.3 If any provision of these Terms are determined to be illegal, void or unenforceable in whole or in part, such provision or the affected part shall be deemed not to form part of the Terms but all other provisions together with the remainder of the affected provision shall remain in full force and effect.
2.0 FineHaus Services and Responsibilities
2.1 FineHaus has resources and staff with the necessary knowledge, experience, skills and abilities to provide the Services, as outlined in the Proposal. FineHaus may change any personnel assigned if this becomes necessary or if personnel with different skills are required to perform the Services.
2.2 FineHaus will act honestly and professionally in providing services to you. We will exercise reasonable skill, care and diligence in providing the services to you.
2.3 Our ability to provide effective services to you will depend upon a number of factors including the level of co-operation that you and your representatives provide to us. You must provide us with all information you have that is relevant to us providing you with the contractor services on a timely basis. On the basis of the accuracy and completeness of the information you provide to us, we may use that to provide you with guidance and recommendations about developing your organisation.
2.4 Notwithstanding the above, all Services are provided without a guarantee or warranty of any kind, either express or implied and FineHaus is not responsible for the performance of the Client following provision of the Services.
3.0 Client Responsibilities
3.1 The Client is responsible for determining that the scope, ‘fit’ of the FineHaus approach, deliverables and benefits of the Services is appropriate for its needs and fit for purpose within the organisation.
3.2 The Client is responsible for conducting all necessary due diligence in respect of the Services.
3.3 Where needed, to assist FineHaus in performing the Services, the Client will:
3.3.1 Provide FineHaus with all necessary information within the agreed timescale, take decisions and provide approvals within a reasonable timeframe,
3.3.2 Without charge, give FineHaus access to the applicable people, premises and other resources, together with all administrative support, and
3.3.3 Keep FineHaus informed of any proposals or developments in its business relevant to the Services within a reasonable timeframe.
3.3.4 Facilitate access for FineHaus to relevant stakeholders within the Client business.
3.4 The Client is responsible for paying the fees in accordance with these Terms.
4.1 All fees will be charged at the agreed rate. Any queries concerning fees and invoices must be raised within the agreed payment period of the invoice.
4.2 Any estimate of fees involved in the Services will be based on FineHaus’s assessment of the work involved. Unless agreed otherwise, fees may be adjusted if the Services prove more complex or time consuming than expected. FineHaus will let the Client know when an estimate is likely to be exceeded.
4.3 Out-of-pocket expenses such as subsistence, travel and accommodation and approved disbursements will be excluded in the above fees unless otherwise stated and agreed.
4.4 Invoices are due for settlement within the period stated on the relevant invoice.
4.5 Commencement date – FineHaus reserves the right to reschedule the commencement date of Services up to 10 working days prior to the start of the Services. If rescheduled delivery dates/periods are not suitable, FineHaus’ liability (if any) will be limited to a refund of fees paid.
4.6 If invoices are not settled in full within the relevant period, FineHaus will be entitled (without prejudice to any other rights) to charge compound interest monthly at 5% on the balance outstanding from time to time on such invoices until the debt is settled. In such circumstances, FineHaus shall be entitled to immediately suspend delivery of the Services or to terminate these Terms and any other Agreement with the Client.
5.0 Information and confidentiality
5.1 The Client agrees that all information disclosed or to be disclosed to FineHaus is or will be true and accurate in all material respects and not misleading in any material respect. The Client shall promptly notify FineHaus in writing upon becoming aware of any matter, fact or circumstances which is inconsistent in any material respect with information previously disclosed or which renders such disclosure inaccurate or misleading.
5.2 The Client and FineHaus each agree that where one party is in possession of information about the other, it is by its nature confidential or is designated as such (whether in writing or orally) and each party undertakes to:
5.2.1 Keep it confidential;
5.2.2 Use it only for the specified purpose; and
5.2.3 Not to disclose it to any other person without the other’s prior written consent.
5.3 These undertakings will not apply to any information that otherwise becomes generally publicly available, was possessed prior to the commencement of the Services (or prior to being designated as Confidential Information), or is acquired from a third party who has no such obligation of confidence, or information which is or has been independently developed by the recipient.
5.4 FineHaus may disclose to other clients and prospective clients that they have provided services for the Client including listing the project on the FineHaus website, unless instructed otherwise. FineHaus reserves the right to use the service and outcomes on a de-identified basis as part of a case study, presentation, article or equivalent piece of text. FineHaus agrees to publish this publicly only with the permission of the client.
5.5 Nothing in these Terms will prevent or restrict FineHaus from providing services to other clients (including services similar to the Services) or from using ideas and other know-how gained during the performance of the Services to the extent that this use does not result in a disclosure of Confidential Information in breach of the Terms or an infringement of any intellectual property right of the Client.
5.6 The Client agrees that FineHaus may share Confidential Information with any Sub-Contractors on the understanding that they will treat the information as Confidential Information in accordance with the provisions of these Terms. It is acknowledged that FineHaus implements appropriate non-disclosure and other agreements with all Sub-Contractors.
6.1 FineHaus and the Client hereby irrevocably agree not to circumvent or attempt to circumvent the provisions of the Terms, and affirm that in every case that they will act with the highest standards of ethics in their dealings with each other.
7.0 Proprietary rights and protection
7.1 On payment of all fees, the Client will acquire ownership of any report, document, data design or other material developed as part of the Services in their tangible form and the right to use them internally in its business. FineHaus will own and retain ownership of all intellectual and other proprietary rights of any kind in such materials, the working papers (if any) and in all other reports, materials, documentation, software, system interfaces, templates, methodologies and processes and ideas and concepts or techniques that FineHaus may use or develop in connection with the Services.
8.1 FineHaus shall be entitled to sub-contract any part of the Services to any consultant or adviser (’the Sub-Contractor’), with written consent from the Client.
8.2 Where FineHaus is required to contract the services of a Sub-Contractor specified by the Client (the ’Client Nominated Sub-Contractor’), the Client shall accept responsibility for the work to be performed by the Client Nominated Sub-Contractor and FineHaus shall not be responsible or liable to the Client or any other person for the work performed by, and all acts, omissions, defaults and/or neglects of, the Client Nominated Sub-Contractor. In such circumstances, the Client shall be responsible and liable for, and shall indemnify and keep indemnified FineHaus, its directors, employees and workers against and from every liability which FineHaus, its directors, employees, or workers may incur to any person whomsoever and against all claims, demands, proceedings, damages, losses, costs and expenses made against, suffered or incurred by FineHaus, its directors, employees or workers directly or indirectly as a result of or in connection with the work performed by or the acts, omissions, defaults and neglects of the Client Nominated Sub-Contractor.
9.0 Non-poaching of FineHaus personnel
9.1 During provision of the Services and for a period of one year after completion of the Services (unless otherwise agreed in writing by FineHaus), the Client or its agents will not directly or indirectly solicit or attempt to solicit any of FineHaus’ consultants, employees or contractors by offering them employment, contract work or consultancy in either the Client organisation or any organisation associated with it. FineHaus is also bound by clause 9.1 in relation to the Client’s organisation and personnel.
9.2 Breach of this clause will render the Client liable to FineHaus for a compensation fee equal to 50% of the gross annual salary of the relevant employee or 50% of the total aggregate fees paid by FineHaus to the relevant consultant/contractor in the 12 months prior to leaving FineHaus (as applicable).
9.3 The Client will be liable to pay this fee within 5 days of the employee/consultant/contractor leaving FineHaus. The above compensation fee excludes GST at the ruling rate. The Client acknowledges that this clause is reasonable in all respects to protect the legitimate business interests of FineHaus and that they form a material part of the Client’s obligations hereunder. FineHaus is also bound by clause 9.2 in relation to the Client’s organisation and personnel.
10.1 Either party may terminate these Terms without notice in the event that the other becomes the subject of insolvency proceedings or calls any meetings of its creditors.
10.2 Either party may terminate these Terms immediately if the other has committed a material breach of these terms, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other party has failed to remedy the breach within 14 days after a written notice to do so; or
10.3 For project-based work, either party may terminate these Terms at any time on 30 days written notice to the other prior to commencement of the project. FineHaus reserves the right to charge a 15% cancellation fee for terminated projects.
10.4 For annual contract/retainer-based work, either party must provide 90 days written notice to the other. Unless notified by the client in writing 30 days prior to the conclusion of the annual contact, the agreement will automatically roll-over for a further 12 month period. FineHaus reserves the right to revise the service pricing at the time of roll-over.
11.0 Limit of liability
11.1 Except for death or personal injury caused by the negligence of FineHaus or its agents or any liability for fraud, to which no limitation applies, in no event will FineHaus’s liability to the Client for any claims, losses, damages, costs or liabilities, however caused, relating to or in connection with the Services exceed in the aggregate for all claims arising in any calendar year a sum equal to the amount of any fees paid hereunder by the Client to FineHaus during that calendar year save to the extent that such limit is absolutely prohibited by law.
12.1 If at any time the Client believes the Services can be improved or the Client is dissatisfied with any aspect of the Services, the matter should be raised immediately with FineHaus. FineHaus are also keen to receive positive feedback and other comments about the Services for continual learning and development.
12.2 Any notices or other communications shall be in written or electronic form and shall be given by means of e-mail or hand delivery, at the addresses at the relevant addresses notified to the other party. Notices or other communications shall be deemed to have been duly given when sent (if transmitted by e-mail or facsimile and a return receipt or successful transmission report is generated) or when delivered (if delivered by hand).
12.3 The Terms do not make either the Client or FineHaus an agent or legal representative of the other, nor do they create a partnership or joint venture or employee/employer relationship.
12.4 Neither the Client nor FineHaus may assign or otherwise transfer the benefit of the Terms without the prior written consent of the other.
12.5 No person other than the parties to these Terms shall have any rights under the Contracts.
12.6 Both parties agree that these Terms are fair and reasonable in all the circumstances.
12.7 Neither party will be liable for any delays or failures in performance or breach of contract due to events or circumstances beyond the reasonable control of the parties.
12.8 These terms are governed by the laws of the State of Victoria. The parties agree to the exclusive jurisdiction of its courts. The parties will not object to the exercise or jurisdiction by those courts on any basis.